On Crimes and Punishments

To the Reader

In every difficult undertaking, do not expect to sow and reap at the same time: it needs preparing, so that things ripen by degrees.

Francis Bacon, "Of Negotiating"

A few remnants of the laws of an ancient conquering people, compiled at the order of a prince who reigned in Constantinople twelve centuries ago, later mixed up with the customs of the Lombards and wrapped in rambling volumes by obscure private commentators: this is the heap of opinions that over a great part of Europe still goes by the name of law. And it is as disastrous as it is common nowadays that an opinion of Carpzov's, an old practice mentioned by Clarus, a torment that Farinacci recommended with angry relish, should be the laws that men obey with perfect confidence when they hold the lives and fortunes of their fellow men in their hands and ought to be trembling. These laws, the dregs of the most barbarous centuries, are examined in this book insofar as they concern the criminal system, and their disorders are laid before those who direct the public happiness in a style that will keep away the unenlightened and impatient crowd. The candid search for truth and the independence from popular opinion in which this work is written are the effect of the gentle and enlightened government under which the author lives. The great monarchs who rule us, benefactors of humanity, love the truths set out by an obscure philosopher with a vigor that is not fanatical, a vigor hated only by those who, beaten back by reason, throw themselves on force or intrigue. And anyone who examines all their circumstances will see that the present disorders are a satire on past ages and a reproach to them, not to this century and its lawmakers.^1,2

Anyone who wants to honor me with criticism should begin, then, by understanding the aim of this work: an aim that, far from diminishing legitimate authority, would increase it, if opinion has more power over men than force, and if gentleness and humanity justify authority in everyone's eyes. The muddled criticisms already published against this book rest on confused ideas, and they oblige me to interrupt my argument for a moment, addressed as it is to enlightened readers, in order to close the door once and for all on the mistakes of timid zeal and the slanders of malicious envy.

There are three sources from which the moral and political principles that govern men are drawn: revelation, natural law, and the artificial conventions of society. There is no comparing the first with the others as to its chief end; but they resemble each other in this, that all three lead to happiness in this mortal life. To consider the relations of the third is not to exclude those of the first two. On the contrary: the first two, though divine and unchanging, have been distorted in a thousand ways in men's depraved minds, by men's own fault, through false religions and arbitrary notions of vice and virtue. It therefore seems necessary to examine, apart from every other consideration, what arises from purely human conventions, whether expressed or supposed for the sake of common necessity and utility, an idea on which every sect and every moral system must agree. And it will always be a praiseworthy undertaking to compel even the most stubborn and unbelieving to conform to the principles that move men to live in society. There are, then, three distinct classes of virtue and vice: religious, natural and political. These three classes must never contradict one another, but not every consequence and duty that follows from one follows from the others. Not everything revelation requires is required by natural law, nor is everything natural law requires required by purely social law. But it is of the greatest importance to separate what follows from this convention, that is, from the express or tacit agreements of men, because that is the limit of the force that one man may legitimately use against another without a special commission from the Supreme Being. The idea of political virtue may, then, be called variable without reproach; the idea of natural virtue would always be clear and plain if human weakness or passion did not cloud it; the idea of religious virtue is always constant, because God revealed it directly and preserves it.

It would be a mistake, then, to attribute principles contrary to natural law or to revelation to someone who speaks of social conventions and their consequences, because he is not speaking of those. It would be a mistake for anyone who reads of a state of war before the state of society to take it in Hobbes's sense, as a state with no duty and no obligation prior to it, instead of taking it as a fact born of the corruption of human nature and the lack of an express sanction. It would be a mistake to impute it as a crime to a writer who is considering what flows from the social contract that he does not admit those things before the contract itself.

Divine justice and natural justice are by their essence unchanging and constant, because the relation between the same two objects is always the same. But human justice, or political justice, being nothing but a relation between an action and the changing state of society, can vary as that action becomes necessary or useful to society, and it is discerned clearly only by someone who analyzes the complicated and endlessly changing relations of civil life. As soon as these essentially distinct principles are confused, there is no more hope of reasoning well about public affairs. It is for theologians to set the boundaries of the just and the unjust as regards the intrinsic wickedness or goodness of an act; it is for the student of public law to set the relations of political justice and injustice, that is, of what is useful or harmful to society. Neither subject can ever prejudice the other, since everyone can see how far purely political virtue must give way to the unchanging virtue that comes from God.

Anyone, I repeat, who wants to honor me with criticism should not begin, then, by supposing that I hold principles destructive of virtue or religion, since I have shown that mine are no such thing. Instead of making me out an unbeliever or a rebel, let him try to show that I am a bad logician or a careless politician. Let him not tremble at every proposition that defends the interests of humanity. Let him convince me of the uselessness of my principles, or of the political harm that could come of them; let him show me the advantages of the practices now accepted. I have given public testimony of my religion and my submission to my sovereign in the reply to the Notes and Observations; to answer further writings like those would be superfluous. But anyone who writes with the decency proper to honest men, and with enough understanding to spare me the trouble of proving first principles, whatever kind of principles they may be, will find in me not so much a man trying to answer as a peaceful lover of the truth.³

Introduction

Men mostly leave the most important regulations to day-to-day prudence, or to the discretion of the very people whose interest lies in opposing the wisest laws: the laws that by their nature spread advantages to everyone and resist the pressure that always tends to concentrate them in a few hands, piling up the height of power and happiness on one side and all the weakness and misery on the other. That is why men bring themselves to remedy the disorders that oppress them only after passing through a thousand errors in the things most essential to life and liberty, only when they are worn out with suffering and evils have reached the extreme. Only then do they recognize the most obvious truths, which escape ordinary minds precisely because they are simple: minds not used to analyzing things, but to taking in their impressions all of a piece, from tradition rather than from examination.

Open the histories and you will see that laws, which are, or ought to be, agreements among free men, have mostly been nothing but the instrument of the passions of a few, or the product of some accidental and passing necessity. They have not been dictated by a cool observer of human nature, one who could gather the actions of a multitude of men into a single point and consider them from this point of view: the greatest happiness shared among the greatest number. Happy are those very few nations that did not wait for the slow drift of human chance and change to bring, after the worst of evils, a turn toward the good, but hurried through the stages between with good laws. And that philosopher deserves mankind's gratitude who had the courage, from his obscure and despised study, to throw among the multitude the first seeds of useful truths, seeds that lay a long time before they bore fruit.

We have come to know the true relations between the sovereign and his subjects, and between nations. Commerce has quickened as philosophical truths have been spread by the printing press, and a silent war of industry has broken out among nations, the most humane kind of war and the most worthy of reasonable men. These are fruits we owe to the enlightenment of this century. But very few have examined and fought the cruelty of punishments and the irregularity of criminal procedure, a part of legislation so fundamental and so neglected almost everywhere in Europe. Very few have gone back to general principles and destroyed the errors piled up over centuries, curbing, at least with the only force that known truths possess, the too-free course of misdirected power, which has so far given a long and authorized example of cold-blooded atrocity. And yet the groans of the weak, sacrificed to cruel ignorance and to wealthy indifference; the barbarous torments, multiplied with lavish and useless severity, for crimes either unproved or imaginary; the squalor and horrors of a prison, made worse by uncertainty, the cruelest executioner of the wretched: all this ought to have shaken the magistrates who guide the opinions of human minds.

The immortal President de Montesquieu passed rapidly over this subject. Truth is indivisible, and it has forced me to follow the shining tracks of that great man; but thinking men, for whom I write, will know how to tell my steps from his. How happy I should be if I could win, as he did, the secret thanks of the obscure and peaceful followers of reason, and if I could stir that sweet thrill with which feeling hearts respond to anyone who defends the interests of humanity!⁴

Chapter 1: The Origin of Punishments

Laws are the terms on which independent and isolated men came together in society, tired of living in a constant state of war and of enjoying a liberty made useless by the uncertainty of keeping it. They sacrificed a part of it in order to enjoy the rest in safety and peace. The sum of all these portions of liberty, sacrificed for the good of each, makes up the sovereignty of a nation, and the sovereign is the lawful keeper and administrator of them: think of it as a public store of liberty, to which each man has contributed his share. But it was not enough to set up this store. It had to be defended against the private encroachments of every individual, who is always trying to take back out of it not only his own portion but other people's as well. There had to be motives that strike the senses, strong enough to keep each man's despotic spirit from plunging the laws of society back into the ancient chaos. These tangible motives are the punishments laid down against those who break the laws. I say motives that strike the senses because experience has shown that the multitude does not adopt fixed principles of conduct, or move away from that universal principle of dissolution which can be seen in the physical and the moral universe alike, except by motives that strike the senses directly and keep presenting themselves to the mind, to counterbalance the strong impressions of the private passions that oppose the general good. Neither eloquence, nor declamation, nor even the most sublime truths have ever been enough to bridle for long the passions roused by the vivid shock of things present.

Chapter 2: The Right to Punish

Every punishment that does not arise from absolute necessity is tyrannical, says the great Montesquieu. The proposition can be made more general, like this: every act of authority of one man over another that does not arise from absolute necessity is tyrannical. Here, then, is what the sovereign's right to punish crimes rests on: the necessity of defending the public store of safety against private encroachment. And punishments are just in proportion as the security is more sacred and inviolable, and the liberty greater, that the sovereign preserves for his subjects. Let us consult the human heart, and we shall find there the fundamental principles of the sovereign's true right to punish crimes; for no lasting advantage can be hoped from political morality unless it is founded on the ineradicable feelings of men. Any law that departs from them will always meet a resistance that wins in the end, just as a force, however small, if it is applied continually, overcomes any violent motion given to a body.

No man ever made a free gift of part of his own liberty for the sake of the public good. That fantasy exists only in novels. If it were possible, each of us would want the agreements that bind others not to bind ourselves; every man makes himself the center of all the world's arrangements.

The multiplication of the human race, small in itself but far beyond the means that barren, untended nature offered for satisfying needs that kept growing and crossing one another, drove the first savages together. The first unions necessarily brought others into being to resist them, and so the state of war passed from individuals to nations.

It was necessity, then, that forced men to give up part of their liberty, and it is therefore certain that each wants to put into the public store only the smallest portion possible, just enough to induce others to defend him. The sum of these smallest possible portions makes up the right to punish. Everything beyond that is abuse, not justice: a fact, not a right. Notice that the word right does not contradict the word force; the first is rather a modification of the second, namely the modification most useful to the greatest number. And by justice I mean nothing but the bond necessary to hold private interests together, which without it would dissolve into the old unsociable state. All punishments that go beyond the necessity of keeping this bond are unjust by their nature. We must take care not to attach to this word justice the idea of something real, like a physical force or a being that exists. It is simply a way men have of conceiving things, a way that has an infinite influence on everyone's happiness. Nor do I mean that other kind of justice which comes from God and is directly related to the punishments and rewards of the life to come.

Chapter 3: Consequences

The first consequence of these principles is that only the laws can decree the punishments for crimes, and this authority can rest only with the legislator, who represents the whole of society united by a social contract. No magistrate, being himself a part of society, can justly inflict punishment on another member of the same society. But a punishment increased beyond the limit the laws have fixed is the just punishment plus another punishment; therefore no magistrate, whatever pretext of zeal or of the public good he may plead, can increase the punishment the law has laid down for a citizen who has broken it.

The second consequence is that if each individual member is bound to society, society is equally bound to each individual member, by a contract that by its very nature obliges both parties. This obligation, which runs down from the throne to the hut and binds the greatest and the most wretched of men alike, means nothing more than this: that it is in everyone's interest that the agreements useful to the greatest number be kept. To break even one of them begins to license anarchy. The sovereign, who represents society itself, can make only general laws binding on all its members; he cannot himself judge that a particular man has broken the social contract, for then the nation would be split in two, one party represented by the sovereign, who asserts that the contract has been broken, and the other by the accused, who denies it. A third party is therefore needed to judge the truth of the fact. Here is why there must be a magistrate, whose sentences admit no appeal and consist simply in affirming or denying particular facts. The third consequence is this. Suppose it were proved that atrocious punishments, though not directly opposed to the public good and to their own purpose of preventing crimes, were merely useless. Even then they would be contrary not only to those beneficent virtues which are the effect of an enlightened reason, a reason that would rather command happy men than a herd of slaves through whom timid cruelty circulates forever; they would be contrary to justice and to the very nature of the social contract.

Chapter 4: Interpreting the Laws

A fourth consequence. The authority to interpret the criminal laws cannot rest with criminal judges either, for the same reason: they are not legislators. Judges have not received the laws from our remote ancestors as a family tradition, a testament that left nothing to posterity but the duty of obeying. They receive them from the living society, or from the sovereign who represents it, as the lawful keeper of what all wills, taken together, amount to now. They receive them not as the obligations of some ancient oath, which would be void, since it bound wills that did not yet exist, and wicked, since it reduced men from the state of society to the state of a herd; they receive them as the effects of an oath, tacit or express, that the united wills of the living subjects have sworn to the sovereign, as the bonds needed to curb and govern the internal ferment of private interests. That is the physical and real authority of the laws. Who, then, is to be the legitimate interpreter of the law? The sovereign, that is, the keeper of the present wills of all? Or the judge, whose only business is to examine whether a given man has or has not done an act contrary to the laws?

In every criminal case the judge should reason by a perfect syllogism: the major premise is the general law; the minor premise, the act, as conforming to the law or not; the conclusion, acquittal or punishment. Once the judge is forced, or chooses, to make even two syllogisms, the door is open to uncertainty.

Nothing is more dangerous than the common axiom that we must consult the spirit of the law. It opens a breach in the dam that holds back the torrent of opinion. This truth, which looks like a paradox to ordinary minds, more struck by a small disorder in front of them than by the ruinous but remote consequences of a false principle rooted in a nation, seems to me proved. Our knowledge and all our ideas are connected with one another; the more complicated they are, the more roads lead to them and away from them. Every man has his own point of view, and the same man has a different one at different times. The spirit of the law, then, would be the result of a judge's good or bad logic, of his easy or uneasy digestion; it would depend on the violence of his passions, on the weakness of whoever is suffering, on the judge's connections with the injured party, and on all those tiny forces that change the look of every object in the fluctuating mind of man. That is why we see a citizen's fate change, often, as his case passes from one court to another, and the lives of the wretched fall victim to false reasoning or to the passing ferment of a judge's humors, a judge who takes for legitimate interpretation the vague result of the whole confused train of notions stirring in his head. That is why we see the same crimes punished differently by the same court at different times, because it consulted not the constant, fixed voice of the law but the wandering instability of interpretations.

A disorder that arises from strict observance of the letter of a criminal law is not to be compared with the disorders that arise from interpretation. Such a passing inconvenience prompts the easy and necessary correction of the words of the law that caused the uncertainty; but it prevents the fatal license of reasoning, from which arbitrary and venal disputes are born. When a fixed code of laws, to be observed to the letter, leaves the judge no task but to examine the actions of citizens and judge whether they conform to the written law or not; when the standard of just and unjust, which must guide the actions of the ignorant citizen and the philosopher alike, is a matter not of controversy but of fact: then subjects are not exposed to the petty tyrannies of the many. Those tyrannies are crueler the smaller the distance between the one who suffers and the one who makes him suffer, and more ruinous than the tyranny of one, because the despotism of the many can be corrected only by the despotism of one, and a despot's cruelty is proportioned not to his strength but to the obstacles he meets. In this way citizens acquire that security of their persons which is just, because it is the end for which men live in society, and useful, because it puts them in a position to calculate exactly the inconveniences of a misdeed. It is true that they will also acquire a spirit of independence, but not one that shakes off the laws or defies the supreme magistrates: rather one that resists those who have dared to give the sacred name of virtue to the weakness of yielding to their self-interested or capricious opinions. These principles will displease those who have made it their right to pass down to their inferiors the blows of tyranny they have received from their superiors. I should have everything to fear, if the spirit of tyranny were compatible with the spirit of reading.

Chapter 5: Obscure Laws

If interpreting the laws is an evil, then obscurity, which necessarily drags interpretation along with it, is plainly another; and it will be a very great one if the laws are written in a language foreign to the people. That puts them in the hands of a few, since they cannot judge for themselves what will become of their liberty or of their limbs, and it turns what should be a solemn public book into something almost private, a household document. What are we to think of mankind, when we reflect that this is the inveterate custom of a good part of cultivated and enlightened Europe! The greater the number of people who understand the sacred code of the laws and have it in their hands, the less frequent crimes will be, for there is no doubt that ignorance and uncertainty about punishments lend their help to the eloquence of the passions.

One consequence of these last reflections is that without writing a society will never take on a fixed form of government, one in which force is an effect of the whole and not of the parts, and in which the laws, unalterable except by the general will, are not corrupted as they pass through the crowd of private interests. Experience and reason have shown us that the probability and certainty of human traditions diminish the farther they are from their source. And if there is no lasting monument of the social contract, how will the laws hold out against the inevitable force of time and the passions?

From this we can see how useful the printing press is, which makes the public, and not a few people, the keeper of the sacred laws; and how far it has scattered that dark spirit of cabal and intrigue which vanishes before enlightenment and the sciences, which its followers affect to despise and in fact fear. This is why we see diminished in Europe the atrocity of the crimes that made our ancestors groan, ancestors who were tyrants and slaves by turns. Anyone who knows the history of two or three centuries ago, and our own, will be able to see how from the lap of luxury and soft living were born the gentlest virtues: humanity, beneficence, tolerance of human errors. He will see what the effects were of what is wrongly called the simplicity and good faith of the old days: humanity groaning under implacable superstition; the avarice and ambition of a few staining the coffers of gold and the thrones of kings with human blood; secret betrayals and public massacres; every noble a tyrant over the common people; the ministers of the gospel's truth bloodying the hands that every day, at the altar, touched the God of meekness. These are not the work of this enlightened century, which some call corrupt.

Chapter 6: The Proportion Between Crimes and Punishments

It is in the common interest not only that crimes should not be committed, but that they should be rarer in proportion to the harm they do to society. The obstacles that drive men back from crime must therefore be stronger the more a crime is contrary to the public good, and the stronger the impulses that carry men toward it. There must therefore be a proportion between crimes and punishments.

It is impossible to prevent every disorder in the universal combat of human passions. Disorders grow in what mathematicians call the compound ratio of the population and of the crisscrossing of private interests, that is, with the product of the two; and those interests cannot be steered with geometrical precision toward the public utility. In political arithmetic, mathematical exactness must give way to the calculus of probabilities. Glance at the histories and you will see disorders grow as empires widen their borders; and as national feeling weakens in the same proportion, the push toward crime grows in proportion to the interest each man takes in the disorders themselves. For this reason the need to make punishments heavier keeps on growing.

That force, like gravity, which drives us toward our own well-being, is held back only in proportion to the obstacles set against it. The effects of this force make up the confused series of human actions. If these collide and injure one another, punishments, which I would call political obstacles, prevent their bad effects without destroying the impelling cause, which is the very sensibility inseparable from man. The legislator works like a skilled architect, whose task is to oppose the ruinous directions of gravity and make those that contribute to the strength of the building work together.

Given that men must come together, and given the agreements that necessarily arise from the very opposition of private interests, we find a scale of disorders. Its first degree consists of those that destroy society directly, and its last of the smallest possible injustice done to one of its private members. Between these extremes lie all the actions opposed to the public good that are called crimes, and they all descend by imperceptible degrees from the highest to the lowest. If geometry could be applied to the infinite and obscure combinations of human actions, there ought to be a corresponding scale of punishments, descending from the heaviest to the lightest. But it will be enough for the wise legislator to mark its principal points without upsetting their order, and not to decree for crimes of the first degree the punishments of the last. If there were an exact and universal scale of punishments and crimes, we should have a probable and common measure of the degrees of tyranny and liberty, of the stock of humanity or of malice, in the different nations.

Any action that does not fall between the two limits just described cannot be called a crime, or punished as one, except by those who find it in their interest to call it so. Uncertainty about these limits has produced in nations a morality that contradicts the legislation; several legislations in force at once that exclude one another; a multitude of laws that expose the wisest man to the harshest punishments; and so the names of vice and virtue have become vague and wavering, and so men have come to feel uncertain of their own existence, which produces the fatal lethargy and sleep of bodies politic. Anyone who reads the codes and annals of nations with a philosophic eye will find that the names of vice and virtue, of good citizen and of criminal, have almost always changed with the revolutions of the centuries: not in step with changes in the circumstances of countries, and so always in keeping with the common interest, but in step with the passions and errors that agitated one lawmaker after another. He will very often see that the passions of one century are the basis of the morality of centuries to come; that strong passions, the children of fanaticism and enthusiasm, weakened and worn away, so to speak, by time, which brings every physical and moral phenomenon back to equilibrium, become little by little the prudence of the age and a useful tool in the hands of the strong and the shrewd. This is how the very obscure notions of honor and virtue arose; and they are obscure because they change with the revolutions of time, which makes names outlive things, and change with the rivers and mountains that are very often the borders not only of physical but of moral geography.

If pleasure and pain are the motive forces of sentient beings; if reward and punishment were set by the invisible Legislator among the motives that drive men even to their most sublime actions: then from the inexact distribution of punishments will arise a contradiction as little noticed as it is common, that punishments punish the very crimes they have caused. If an equal punishment is set for two crimes that do unequal harm to society, men will find no stronger obstacle to committing the greater crime, if they find a greater advantage joined to it.

Chapter 7: Mistakes in Measuring Punishments

The reflections so far give me the right to assert that the one true measure of crimes is the harm done to the nation; and so those were mistaken who believed the true measure of crimes to be the intention of the person who commits them. Intention depends on the impression objects make at the moment and on the mind's previous disposition, and these vary in all men, and in each man, with the very swift succession of ideas, passions and circumstances. It would then be necessary to draw up not only a separate code for each citizen but a new law for every crime. Sometimes men with the best intentions do society the greatest harm, and at other times, with the worst will in the world, they do it the greatest good.

Others measure crimes more by the dignity of the person offended than by their importance to the public good. If this were the true measure of crimes, an irreverence toward the Being of beings ought to be punished more atrociously than the murder of a monarch, since the superiority of His nature would be infinite compensation for the difference in the offense.

Finally, some have thought that the gravity of the sin should enter into the measure of crimes. The fallacy of this opinion will leap to the eye of anyone who examines, impartially, the true relations between men and men, and between men and God. The first are relations of equality. Necessity alone, out of the clash of passions and the opposition of interests, gave birth to the idea of common utility, which is the basis of human justice. The second are relations of dependence on a perfect Being, the Creator, who has reserved to Himself alone the right to be legislator and judge at the same time, because He alone can be both without harm. If He has laid down eternal punishments for those who disobey His omnipotence, what insect will dare to fill in for divine justice, or want to avenge the Being who is sufficient to Himself, who can receive no impression of pleasure or pain from anything, and who alone of all beings acts without being acted upon in return? The gravity of sin depends on the unsearchable malice of the heart, and finite beings cannot know it without revelation. How, then, can it be made the rule for punishing crimes? In that case men might punish when God forgives, and forgive when God punishes. If men can be in contradiction with the Almighty by offending Him, they can be so by punishing too.

Chapter 8: The Classes of Crime

We have seen what the true measure of crimes is: the harm done to society. This is one of those palpable truths which need neither quadrants nor telescopes to be discovered, which lie within reach of any ordinary intelligence, and which nevertheless, by some marvelous combination of circumstances, have been firmly grasped only by a few thinkers, men of every nation and every age. But the opinions of Asiatic despotism, and passions clothed in authority and power, working on the timid credulity of men, most often by imperceptible pushes and sometimes by violent shocks, have scattered those simple notions. They perhaps made up the first philosophy of societies in their infancy, and the light of this century seems to be leading us back to them, but with the greater firmness that geometrical examination, a thousand disastrous experiences and the very obstacles themselves can give. Order would now lead us to examine and distinguish all the different kinds of crime and the way to punish each, if their nature, which varies with the circumstances of different ages and places, did not oblige us to go into immense and tedious detail. It will be enough for me to point out the most general principles and the most ruinous and common errors, so as to undeceive both those who, from a misunderstood love of liberty, would bring in anarchy, and those who would like to reduce men to the regularity of a cloister.

Some crimes directly destroy society, or whoever represents it; some injure the private security of a citizen in his life, his goods or his honor; still others are actions contrary to what each man is obliged by the laws to do, or not to do, for the sake of the public good. The first, which are the greatest crimes because they do the most harm, are those called treason (lèse-majesté). Only tyranny and ignorance, which confuse the clearest words and ideas, can give this name, and with it the greatest punishment, to crimes of a different nature, and so make men, as on a thousand other occasions, the victims of a word. Every crime, even a private one, injures society, but not every crime attempts its immediate destruction. Moral actions, like physical ones, have their limited sphere of activity, and are bounded in different ways, like all the motions of nature, by time and space; and so only quibbling interpretation, which is usually the philosophy of slavery, can confuse what eternal truth has distinguished by unchanging relations.

After these come the crimes against the security of each private person. Since that security is the primary end of every legitimate association, the violation of the right to security that every citizen has acquired cannot fail to be given one of the more considerable punishments the laws lay down.

Every citizen ought to believe that he can do anything not contrary to the laws without fearing any other inconvenience than what may arise from the action itself. This is the political dogma that the people ought to believe and the supreme magistrates ought to preach, by keeping the laws uncorrupted: a sacred dogma, without which there can be no legitimate society, the just reward for the sacrifice men have made of that universal freedom of action over all things which is common to every sentient being and limited only by its own strength. This is what forms free and vigorous souls and enlightening minds; it makes men virtuous, but with the virtue that knows how to stand up to fear, not with that pliant prudence which is worthy only of someone who can bear a precarious and uncertain existence. Attacks on the security and liberty of citizens are therefore among the greatest crimes. And under this class fall not only the murders and thefts of common men, but those of the great and of magistrates as well, whose influence acts at a greater distance and with greater force, destroying in their subjects the ideas of justice and duty and putting in their place the idea of the right of the strongest, which is dangerous alike to the man who exercises it and to the man who suffers it.

Chapter 9: On Honor

There is a remarkable contradiction between the civil laws, which guard each citizen's body and goods more jealously than anything else, and the laws of what is called honor, which put opinion ahead of both. This word honor is one of those that have served as the basis for long and brilliant arguments without anyone attaching to it a single fixed and settled idea. What a wretched condition for the human mind, that the most remote and least important ideas, about the revolutions of the heavenly bodies, should be known more distinctly than moral notions that are close at hand and of the greatest importance, notions forever wavering and confused as the winds of passion drive them, and as ignorance, led by others, takes them up and hands them on! But the apparent paradox will vanish if we consider that, just as objects held too close to the eyes blur, so the very nearness of moral ideas makes the many simple ideas that compose them easily run together and blurs the dividing lines that the geometrical spirit needs when it sets out to measure the phenomena of human sensibility. And the surprise will disappear altogether for the impartial inquirer into human affairs, who will suspect that perhaps there is no need of so much moral apparatus, or of so many bonds, to make men happy and secure.

This honor, then, is one of those complex ideas that are an aggregate not only of simple ideas but of ideas that are themselves complicated, and that, as they present themselves to the mind in different ways, now admit and now exclude some of the various elements that compose them, keeping only a few ideas in common, as several complex algebraic quantities may have a common divisor. To find this common divisor among the various ideas men form of honor, we must cast a quick glance over the formation of societies. The first laws and the first magistrates arose from the need to repair the disorders of each man's physical despotism. This was the end for which society was founded, and this primary end has always been kept, in reality or in appearance, at the head of every code, even the destructive ones. But as men drew closer together and their knowledge advanced, there arose an infinite series of mutual actions and needs among them, always beyond the foresight of the laws and beneath the actual power of each individual. From that time began the despotism of opinion, the only means of obtaining from others the goods, and warding off the evils, that the laws were not enough to provide. And it is opinion that torments the wise man and the common man alike, that has given the appearance of virtue more credit than virtue itself, that turns even the scoundrel into a missionary, because he finds his own interest in it. Hence men's good opinion became not only useful but necessary, if one was not to fall below the common level. Hence, if the ambitious man wins it because it is useful, and the vain man goes begging for it as a witness to his own merit, the man of honor is seen demanding it as a necessity. This honor is a condition that a great many men set on their own existence. Born after society was formed, it could not be put into the public store; it is rather a momentary return to the state of nature, a withdrawal of one's person, for the moment, from those laws that in that case do not defend a citizen well enough.

Hence, under extreme political liberty and under extreme dependence alike, the ideas of honor disappear or merge completely with others: in the first, because the despotism of the laws makes it useless to seek the good opinion of others; in the second, because the despotism of men, annulling civil existence, reduces them to a precarious and momentary personality. Honor, then, is one of the fundamental principles of those monarchies that are a diminished despotism; and in them it is what revolutions are in despotic states: a moment's return to the state of nature, and a reminder to the master of the ancient equality.

Chapter 10: On Duels

From this need for the good opinion of others private duels were born, and they had their origin precisely in the anarchy of the laws. They are said to have been unknown to antiquity: perhaps because the ancients did not go about armed and watchful of one another in the temples, at the theater and among their friends; perhaps because the duel was an ordinary, everyday spectacle that degraded slave gladiators put on for the people, and free men scorned to be thought gladiators, and called so, by fighting in private. In vain have edicts of death against anyone who accepts a duel tried to root out this custom, which is founded on something some men fear more than death. For the man of honor foresees that, once deprived of the good opinion of others, he will be left either a merely solitary being, a state unbearable to a sociable man, or the target of insults and infamy, which, by acting on him again and again, outweigh the danger of the punishment. Why is it that the common people for the most part do not fight duels as the great do? Not only because they are unarmed, but because the need for the good opinion of others is less common among the lower orders than among those who, standing higher, watch one another with greater suspicion and jealousy.

It is not useless to repeat what others have written: that the best way to prevent this crime is to punish the aggressor, that is, the one who gave occasion for the duel, and to declare innocent the man who, through no fault of his own, was forced to defend what the existing laws do not protect, namely opinion, and had to show his fellow citizens that he fears only the laws, and not men.

Chapter 11: On Public Order

Finally, among the crimes of the third kind are, in particular, those that disturb the public peace and the quiet of citizens: brawls and revels in the public streets, which are meant for business and for citizens taking a stroll; fanatical sermons, which stir up the easily roused passions of the curious crowd, passions that gather strength from the number of listeners, and more from dark and mysterious enthusiasm than from clear and calm reason, which never works on a great mass of men.

Streets lit at night at public expense, guards posted in the different quarters of the city, the simple moral discourses of religion kept to the silence and sacred calm of the churches, under the protection of public authority, speeches meant to uphold private and public interests kept to the assemblies of the nation, to the parliaments, or to wherever the majesty of the sovereign resides: these are all effective means of preventing the dangerous thickening of popular passions. They form a principal branch of the magistrate's vigilance, the branch the French call la police. But if this magistrate were to act by arbitrary rules, not laid down in a code that passes through the hands of every citizen, he would open a door to tyranny, which always surrounds the borders of political liberty on every side. I find no exception at all to this general axiom: that every citizen must know when he is guilty and when he is innocent. If censors, and arbitrary magistrates in general, are necessary in any government, that comes from the weakness of its constitution, not from the nature of a well-organized government. Uncertainty about their own fate has sacrificed more victims to obscure tyranny than public and solemn cruelty ever has. It revolts men's spirits more than it cows them. The true tyrant always begins by reigning over opinion, which forestalls courage; for courage can shine only in the clear light of truth, or in the fire of the passions, or in ignorance of the danger.

But what punishments will be fitting for these crimes? Is death a truly useful and necessary punishment for the security and good order of society? Are torture and torments just, and do they achieve the end the laws set themselves? What is the best way to prevent crimes? Are the same punishments equally useful at all times? What influence do they have on customs? These problems deserve to be solved with that geometrical precision which the fog of sophistry, seductive eloquence and timid doubt cannot withstand. If I had no other merit than to have been the first to present to Italy, with somewhat greater clarity, what other nations have dared to write and are beginning to practice, I should count myself fortunate. But if, by upholding the rights of men and of invincible truth, I should help to snatch some unfortunate victim of tyranny, or of ignorance, which is just as deadly, from the spasms and anguish of death, the blessings and tears of even one innocent man in the transports of his joy would console me for the contempt of mankind.

Chapter 12: The Purpose of Punishment

From simple consideration of the truths set out so far, it is evident that the purpose of punishment is neither to torment and afflict a sentient being nor to undo a crime already committed. Can a body politic, which, far from acting out of passion, is the calm moderator of private passions, give house room to this useless cruelty, the instrument of fury and fanaticism, or of weak tyrants? Can the shrieks of a wretch call back from time, which never returns, deeds already done? The purpose, then, is nothing other than to prevent the guilty man from doing fresh harm to his fellow citizens, and to deter others from doing the same. Those punishments, therefore, and that way of inflicting them, should be chosen which, keeping due proportion, will make the most effective and lasting impression on men's minds, and the least painful on the body of the guilty.

Chapter 13: On Witnesses

In any good legislation it is a considerable point to determine exactly how far witnesses are to be believed and what proves a crime. Every reasonable man, that is, every man whose ideas hang together reasonably well and whose sensations agree with those of other men, can be a witness. The true measure of how far he is to be believed is simply the interest he has in telling the truth or not telling it. This shows how frivolous it is to reject women's testimony on the ground of their weakness; how childish to treat a convict under civil death (the legal extinction of all his rights) as if it were real death, and he could no more testify than a corpse; and how inconsistent to discredit men branded with infamy, the public disgrace by which the law strips a citizen of his good name, when they have no interest in lying. A witness's credibility, then, must diminish in proportion to the hatred, or the friendship, or the close ties between him and the accused. More than one witness is needed, because as long as one affirms and the other denies, nothing is certain, and the right that everyone has to be believed innocent prevails. A witness becomes noticeably less credible the more atrocious the crime or the more improbable the circumstances: magic, for example, and gratuitously cruel acts. In an accusation of the first kind it is more probable that several men are lying, because it is easier for the illusion of ignorance or persecuting hatred to come together in several men than for one man to exercise a power that God has either never given to any created being or has taken away from all of them. Likewise in the second, because man is cruel only in proportion to his own interest, or to the hatred or fear he has conceived. Strictly speaking, there is no superfluous feeling in man; feeling is always proportioned to the result of the impressions made on the senses. A witness's credibility may likewise sometimes be diminished when he is a member of some private society whose customs and maxims are either not well known or differ from the public ones. Such a man has not only his own passions but other people's.

Finally, a witness's credibility is close to nothing when words are made into a crime. Tone, gesture, everything that comes before and after, the different ideas men attach to the same words: all these so alter and modify what a man says that it is almost impossible to repeat it exactly as it was said. Moreover, violent acts, acts out of the ordinary course of things, such as real crimes are, leave their traces in a multitude of circumstances and in the effects that follow from them; but words remain only in the memory of the hearers, which is usually unfaithful and often led astray. A slander about a man's words is therefore far easier than one about his actions, because the more circumstances are brought forward to prove an action, the more means the accused is given to clear himself.

Chapter 14: Evidence and the Forms of Trial

There is a general theorem that is very useful for calculating how certain a fact is: for example, how much weight the signs of a crime carry. When the proofs of a fact depend on one another, that is, when the signs are proved only by each other, then the more proofs are brought forward, the less probable the fact, because whatever chances would make the earlier proofs fail make the later ones fail too. When all the proofs of a fact depend equally on a single one, their number neither increases nor diminishes the probability of the fact, because their whole value comes down to the value of the one proof on which they depend. When the proofs are independent of one another, that is, when each sign is proved from some other source than the rest, then the more proofs are brought forward, the more the probability of the fact grows, because the failure of one proof has no effect on another. I speak of probability where crimes are concerned, though to deserve punishment they must be certain. But the paradox will vanish for anyone who considers that, strictly speaking, moral certainty is only a probability, but a probability of such a kind that it is called certainty, because every man of good sense necessarily assents to it, out of a habit born of the need to act and older than any speculation. The certainty required to establish that a man is guilty, then, is the certainty that guides every man in the most important affairs of his life. The proofs of a crime may be divided into perfect and imperfect. I call perfect those that exclude the possibility that the man is not guilty; imperfect, those that do not exclude it. Of the first, even one is enough to convict; of the second, as many are needed as will make up a perfect one: that is, although for each of them taken singly it is possible that the man is not guilty, their coming together on the same person makes it impossible that he is not. Note that imperfect proofs which the accused could answer, and does not answer properly, become perfect. But this moral certainty of proof is easier to feel than to define exactly. That is why I think that law an excellent one which gives the chief judge assessors chosen by lot and not by selection, because in this matter ignorance, which judges by feeling, is safer than learning, which judges by opinion. Where the laws are clear and precise, a judge's office consists in nothing but establishing a fact. If skill and dexterity are needed in seeking out the proofs of a crime, and clarity and precision in presenting the result, then to judge from that result nothing is needed but plain, ordinary good sense, which is less fallible than the learning of a judge in the habit of looking for guilty men, who reduces everything to an artificial system borrowed from his studies. Happy the nation where the laws were not a science! It is a most useful law that every man be judged by his peers, because where a citizen's liberty and fortune are at stake, the feelings that inequality inspires must be silent: the superiority with which the fortunate man looks on the unfortunate, and the resentment with which the inferior looks on his superior, must not be allowed to act in this judgment. But when the crime is an injury to a third party, the judges ought to be half the peers of the accused and half the peers of the injured party; so that, with every private interest balanced (and private interest alters the look of things even without meaning to), only the laws and the truth speak. It is also in keeping with justice that the accused should be able to reject, up to a certain number, those he suspects; and if this is granted him without opposition for some time, it will seem almost as if the accused condemns himself. Let trials be public, and public the proofs of the crime, so that opinion, which is perhaps the only cement of societies, may put a curb on force and the passions; so that the people may say, "We are not slaves, and we are protected," a feeling that inspires courage and is worth a tribute to a sovereign who understands his true interests. I shall not point out the other details and precautions that such institutions require. I should have said nothing if it were necessary to say everything.

Chapter 15: Secret Accusations

Secret accusations are an evident disorder, but a consecrated one, and in many nations made necessary by the weakness of the constitution. Such a custom makes men false and secretive. Whoever can suspect another of being an informer sees in him an enemy. Men then get used to masking their own feelings, and from the habit of hiding them from others they end by hiding them from themselves. Unhappy men, once they have come to this point! Without clear and steady principles to guide them, they wander lost and drifting on the vast sea of opinions, always busy saving themselves from the monsters that threaten them; they pass the present moment always embittered by uncertainty about the future; deprived of the lasting pleasures of tranquillity and security, they have only a few pleasures scattered here and there through their dismal lives, devoured in haste and disorder, to console them for having lived. And are these the men we shall make into the fearless soldiers who defend their country or the throne? Are we to find among these the incorruptible magistrates who, with free and patriotic eloquence, will uphold and set forth the true interests of the sovereign; who will carry to the throne, along with the taxes, the love and blessings of every class of men, and bring back from it to palaces and huts alike peace, security, and the industrious hope of bettering one's lot, which is the useful ferment and the very life of states?

Who can defend himself against slander when it is armed with tyranny's strongest shield, secrecy? What sort of government is it in which the ruler suspects an enemy in every one of his subjects, and is obliged, for the sake of public quiet, to take away the quiet of each?

What are the motives by which secret accusations and secret punishments are justified? Public safety, security, the preservation of the form of government? But what a strange constitution, in which those who have force on their side, and opinion, which is more effective than force, are afraid of every citizen! The protection of the accuser? Then the laws do not defend him well enough; and there will be subjects stronger than the sovereign! The infamy that attaches to an informer? Then secret slander is authorized and public slander punished! The nature of the crime? If indifferent actions, if even actions useful to the public, are called crimes, then accusations and trials are never secret enough. Can there be crimes, that is, public injuries, where it is not at the same time in everyone's interest that the example be public, and so the trial? I respect every government, and I speak of none in particular. Circumstances are sometimes such that removing an evil inherent in a nation's system may be thought its utter ruin. But if I had to dictate new laws in some forsaken corner of the universe, my hand would tremble before I authorized such a custom, and I should have all posterity before my eyes.

Montesquieu has already said that public accusations suit a republic, where the public good ought to be the citizens' first passion, better than a monarchy, where that feeling is very weak by the very nature of the government, and where it is an excellent institution to appoint officials who accuse lawbreakers in the public name. But every government, republican and monarchical alike, must give the slanderer the punishment that would have fallen on the accused.

Chapter 16: On Torture

A cruelty consecrated by custom in most nations is the torture of the accused while his trial is being prepared: either to force him to confess a crime; or because of contradictions he falls into; or to discover his accomplices; or for some metaphysical and incomprehensible purging of infamy, I know not what; or, finally, on account of other crimes of which he might be guilty but is not accused.

No man can be called guilty before the judge has passed sentence, nor can society withdraw its public protection from him until it has been decided that he broke the agreements on which that protection was granted him. What right, then, other than the right of force, gives a judge the power to inflict a punishment on a citizen while it is still in doubt whether he is guilty or innocent? The dilemma is not new. Either the crime is certain or it is uncertain. If it is certain, no other punishment suits it than the one the laws lay down, and torments are useless, because the confession of the accused is useless. If it is uncertain, an innocent man must not be tormented, for in the eyes of the law a man whose crimes are not proved is innocent. But I go further: it is to confound every relation of things to require that a man be at once accuser and accused, and that pain become the crucible of truth, as if the test of truth resided in the muscles and sinews of a wretch. This is a sure way to acquit robust villains and convict weak innocents. Such are the fatal drawbacks of this supposed test of truth, a test worthy of a cannibal, which the Romans, themselves barbarians on more than one count, reserved for slaves alone, the victims of a ferocious and overpraised virtue.

What is the political purpose of punishment? To strike terror into other men. But what judgment are we to pass on the secret and private butcheries that the tyranny of custom carries out on the guilty and the innocent alike? It is important that no known crime should go unpunished; but it is useless to establish who committed a crime that lies buried in darkness. A harm already done, for which there is no remedy, can be punished by political society only insofar as it works on others by holding out the lure of impunity. If it is true that the men who respect the laws, from fear or from virtue, outnumber those who break them, then the risk of tormenting an innocent man must be weighed the more heavily the greater the probability that a man, other things being equal, has respected the laws rather than defied them.

Another ridiculous ground for torture is the purging of infamy: that is, a man whom the laws have declared infamous must confirm his testimony by having his bones put out of joint. This abuse ought not to be tolerated in the eighteenth century. It is believed that pain, which is a sensation, purges infamy, which is merely a moral relation. Is pain, then, a crucible? And is infamy some impure compound, to be refined in it? It is not hard to trace this ridiculous law to its origin, for even the absurdities a whole nation adopts always have some relation to other ideas that the same nation holds in common and respects. The practice seems to have been taken from religious and spiritual ideas, which have so much influence on the thoughts of men, on nations and on centuries. An infallible dogma assures us that the stains contracted through human weakness, which have not deserved the eternal wrath of the Supreme Being, must be purged by an incomprehensible fire. Now infamy is a civil stain; and since pain and fire take away spiritual and incorporeal stains, why should the agonies of torture not take away the civil stain that is infamy? I believe that the confession of the accused, which some courts require as essential for conviction, has a not dissimilar origin, because in the mysterious tribunal of penance the confession of sins is an essential part of the sacrament. This is how men abuse the surest lights of revelation; and since these are the only lights that remain in times of ignorance, docile humanity turns to them on every occasion and makes of them the most absurd and far-fetched applications. But infamy is a sentiment subject neither to the laws nor to reason, but to common opinion. Torture itself brings real infamy on its victim. By this method, then, infamy is to be taken away by inflicting infamy.⁵

The third ground is the torture applied to suspects when they contradict themselves under examination: as if fear of punishment, the uncertainty of the verdict, the pomp and majesty of the judge, and ignorance, which is common to nearly all villains and innocent men alike, were not likely to make both the innocent man who is afraid and the guilty man who is trying to cover himself fall into contradiction; as if contradictions, common enough in men when they are calm, were not bound to multiply when the mind is in turmoil, wholly absorbed in the thought of saving itself from the danger hanging over it.

This infamous crucible of truth is a still-standing monument of the ancient and savage legislation of the days when ordeals by fire and boiling water, and the uncertain fortune of arms, were called the judgments of God: as if the links of the eternal chain that lies in the bosom of the First Cause had to be disordered and disconnected at every moment for the sake of frivolous human institutions. The only difference between torture and the ordeals by fire and boiling water is that the outcome of the first seems to depend on the will of the accused, and that of the second on a purely physical and external fact. But the difference is only apparent, not real. A man is as little free to tell the truth amid spasms and lacerations as he was then free, short of fraud, to prevent the effects of fire and boiling water. Every act of our will is always proportioned to the strength of the sense impression that is its source, and every man's capacity for feeling is limited. The impression of pain, then, can grow so great that it fills that capacity entirely and leaves the tortured man no freedom but to choose whatever is, for the moment, the shortest way out of the pain. The answer of the accused is then as necessary as the effects of fire or water. The innocent man who feels pain keenly will then declare himself guilty, if he believes that by doing so he will make the torment stop. Every difference between the guilty and the innocent vanishes by the very means that is claimed to discover it. It would be superfluous to add light to light by citing the countless examples of innocent men who have confessed themselves guilty in the agonies of torture. There is no nation, no age, that does not cite its own; but men neither change nor draw the consequences. There is no man who has pushed his thoughts beyond the needs of life who does not sometimes run toward nature, which calls him to herself with secret and indistinct voices; custom, the tyrant of minds, drives him back and frightens him. The outcome of torture, then, is a matter of temperament and calculation, which varies in each man in proportion to his strength and his sensibility; so much so that by this method a mathematician would solve better than a judge the following problem: given the strength of an innocent man's muscles and the sensitivity of his fibers, find the degree of pain that will make him confess himself guilty of a given crime.

A man is examined in order to find out the truth. But if the truth is hard to discover in the air, the gestures and the face of a man who is calm, it will be much harder to discover in a man in whom the convulsions of pain distort all the signs by which, in most men's faces, the truth sometimes shows through in spite of them. Every violent action confuses and blots out the small differences between things by which the true can sometimes be told from the false.

These truths were known to the Roman legislators, among whom we find no torture used except on slaves, who had been stripped of all legal personality. They are known in England, a nation where the glory of letters, the superiority of its commerce and wealth, and therefore of its power, and its examples of virtue and courage leave us no doubt of the goodness of its laws. Torture has been abolished in Sweden; it has been abolished by one of the wisest monarchs in Europe, who, having brought philosophy to the throne, a lawgiver who is the friend of his subjects, has made them equal and free in their dependence on the laws, which is the only equality and liberty that reasonable men can demand in the present state of things. Torture is not thought necessary by the laws of armies, though armies are made up for the most part of the dregs of the nations, and so might seem to need it more than any other class of men. A strange thing, to anyone who does not consider how great is the tyranny of custom, that peaceable laws should have to learn the most humane way of judging from minds hardened to slaughter and blood.⁶

This truth, finally, is felt, though confusedly, even by those who stray from it. A confession made under torture is not valid unless it is confirmed on oath after the torture has stopped; but if the accused does not confirm his crime, he is tortured again. Some learned doctors of law and some nations allow this infamous begging of the question, which takes for granted the very thing to be proved, only three times; other nations and other doctors leave it to the judge's discretion. The upshot is that, of two men equally innocent or equally guilty, the strong and courageous one will be acquitted and the weak and timid one condemned, by virtue of this precise piece of reasoning: "I, the judge, was supposed to find you guilty of such and such a crime. You, being vigorous, have managed to withstand the pain, and so I acquit you; you, being weak, gave in to it, and so I condemn you. I am aware that a confession wrung from you under torment would have no force; but I will torment you again if you do not confirm what you have confessed."

A strange consequence follows necessarily from the use of torture: the innocent man is put in a worse position than the guilty one. For if both are put to the torment, every combination is against the first: either he confesses the crime and is condemned, or he is declared innocent and has suffered a punishment he did not deserve. But the guilty man has one case in his favor, namely when, by holding out firmly under torture, he must be acquitted as innocent: he has exchanged a greater punishment for a lesser. The innocent man, then, can only lose, and the guilty man can gain.

The law that orders torture is a law that says: "Men, withstand pain. Nature may have created in you an inextinguishable love of yourselves, and given you an inalienable right to defend yourselves; but I create in you the very opposite feeling, a heroic hatred of yourselves, and I command you to accuse yourselves, and to tell the truth even while your muscles are torn and your bones are wrenched out of joint."

Torture is applied to discover whether the accused is guilty of crimes other than those he is charged with, which amounts to this reasoning: "You are guilty of one crime, so it is possible that you are guilty of a hundred others. This doubt weighs on me; I want to make sure of it with my test of truth. The laws torment you because you are guilty, because you may be guilty, because I want you to be guilty."

Finally, torture is applied to an accused man to discover the accomplices in his crime. But if it has been shown that torture is not a fit means of discovering the truth, how can it serve to reveal the accomplices, which is one of the truths to be discovered? As if a man who accuses himself would not accuse others even more readily! Is it just to torment men for other people's crimes? Will the accomplices not be discovered from the examination of the witnesses, from the examination of the accused, from the evidence and from the body of the crime itself: in short, by all the very means that must serve to establish the crime in the accused? Accomplices usually flee as soon as their companion is arrested; the uncertainty of their fate condemns them to exile of its own accord and frees the nation from the danger of fresh offenses, while the punishment of the guilty man who is in custody achieves its one purpose, which is to deter other men by terror from a similar crime.

Chapter 17: On the Treasury

There was once a time when nearly all punishments were fines. Men's crimes were the prince's estate. Attacks on public safety were a source of luxury, and the very man appointed to defend that safety had an interest in seeing it violated. The business of punishment was therefore a lawsuit between the treasury, the prince's revenue office, which collected these penalties and pocketed them, and the accused: a civil case, a contested private suit rather than a public matter, which gave the treasury rights beyond those that the public defense supplied, and laid on the accused burdens beyond those that the need for an example had brought on him. The judge was therefore an advocate for the treasury rather than a disinterested seeker after the truth, an agent of the revenue rather than the protector and minister of the laws. And since under this system to confess oneself a criminal was to confess oneself a debtor to the treasury, which was the whole point of criminal procedure in those days, the confession of the crime, and a confession so arranged as to favor the treasury's claims and do them no harm, became, and still is (for effects always long outlive their causes), the center around which all the machinery of criminal justice turns. Without it, an accused man convicted by indubitable proofs will receive a lighter punishment than the one laid down; without it, he will not be tortured about other crimes of the same kind that he may have committed. With it, the judge takes possession of the accused man's body and mangles it with methodical formalities, to draw from it, as from an estate he has bought, all the profit he can. Once the existence of the crime is proved, a confession makes a conclusive proof; and to make this proof less suspect, it is wrung out by force, by the spasms and despair of pain, while at the same time it is held that a confession made calmly out of court, without emotion, without the overpowering fears of a trial by torment, is not enough to condemn. Inquiries and proofs that would throw light on the facts, but weaken the treasury's claims, are shut out. When torment is sometimes spared the accused, it is not out of pity for misery and weakness but for the sake of the claims that this entity, now imaginary and inconceivable, might lose. The judge becomes the enemy of the accused, of a man in chains, given over to squalor, to torments and to the most terrible of futures; he does not look for the truth of the facts, he looks for the crime in the prisoner, and sets traps for him, and thinks he has lost if he does not succeed, and has wronged that infallibility which man claims for himself in all things. The grounds for arrest are in the judge's power; for a man to prove himself innocent he must first be declared guilty. This is called an offensive procedure, and such are the criminal procedures almost everywhere in enlightened Europe in the eighteenth century. The true procedure, the informative one, that is, a disinterested inquiry into the facts, the one that reason commands, that military law employs, that even Asiatic despotism uses in quiet cases where nothing is at stake, is very little used in the courts of Europe. What a tangled labyrinth of strange absurdities, which a happier posterity will surely find beyond belief! Only the philosophers of that time will be able to read in the nature of man how such a system could ever have been real.

Chapter 18: On Oaths

A contradiction between the laws and man's natural feelings arises from the oaths demanded of the accused, that he be truthful at the very moment when he has the greatest interest in lying: as if a man could swear in earnest to help bring about his own destruction; as if religion did not fall silent in most men when interest speaks. The experience of every age has shown that men have abused this precious gift of heaven more than anything else. And why should villains respect it, when the men held wisest have often violated it? For most people the motives that religion sets against the tumult of fear and the love of life are too weak, because they are too remote from the senses. The affairs of heaven are governed by laws entirely unlike those that govern human affairs. Why compromise the one with the other? Why put a man in the terrible contradiction of either failing God or joining in his own ruin? The law that compels such an oath, in effect, commands him to be either a bad Christian or a martyr. Little by little the oath becomes a mere formality, and in this way the force of religious feeling, which for most men is the only pledge of their honesty, is destroyed. How useless oaths are, experience has shown, for any judge can bear me witness that no oath has ever made an accused man tell the truth; and reason shows it, for reason declares useless, and therefore harmful, all laws that oppose man's natural feelings. They meet the fate of dikes built straight across the course of a river: either they are knocked down and overwhelmed at once, or an eddy that they themselves have made eats away at them and undermines them, little by little, unseen.

Chapter 19: Swift Punishment

The more promptly punishment follows the crime, and the closer it comes to it, the more just and the more useful it will be. More just, I say, because it spares the accused the useless and cruel torments of uncertainty, which grow with the vigor of his imagination and with the sense of his own weakness; more just, because the loss of liberty is itself a punishment, and so it cannot come before the sentence except where necessity demands. Prison, then, is simply the custody of a citizen until he is judged guilty; and since this custody is painful by its very nature, it ought to last the shortest time possible and be as little harsh as it can be. The shortest time is to be measured both by how long the trial necessarily takes and by the place in line of those who have the prior right to be tried. The confinement should be no closer than is necessary either to prevent escape or to keep the evidence of crimes from being hidden. The trial itself ought to be finished in the shortest possible time. What contrast could be crueler than the indolence of a judge and the anguish of an accused man? The comforts and pleasures of an unfeeling magistrate on one side, and on the other the tears and squalor of a prisoner? In general, the weight of a punishment, as the consequence of a crime, ought to be the most effective possible on others and the least harsh possible on the man who suffers it; for no society can be called legitimate where it is not an unfailing principle that men meant to submit themselves to the least evils possible.

I have said that prompt punishment is more useful. The reason is that the shorter the time between the punishment and the misdeed, the stronger and more lasting is the association in the human mind of these two ideas, crime and punishment, so that without noticing it we come to think of the one as the cause and the other as its necessary and unfailing effect. It has been shown that the association of ideas is the cement that holds together the whole structure of the human intellect; without it, pleasure and pain would be isolated feelings, with no effect at all. The further men are from general ideas and universal principles, that is, the more ordinary they are, the more they act on immediate and near associations and neglect the more remote and complicated ones. Those serve only men strongly gripped by passion for the object they pursue, since the light of attention illuminates a single object and leaves the rest in darkness. They serve, too, the loftier minds, which have acquired the habit of running quickly over many objects at once and can easily set many partial feelings against one another, so that the result, which is action, is less dangerous and uncertain.

It is therefore of the highest importance that crime and punishment be close together, if we want the associated idea of punishment to rise at once in crude and ordinary minds at the seductive picture of some profitable crime. A long delay does nothing but pull these two ideas further and further apart; and though the punishment of a crime may still make an impression, it makes it less as punishment than as spectacle, and makes it only after the horror of that particular crime, which would have reinforced the feeling of the punishment, has faded in the minds of the onlookers.

Another principle serves admirably to tighten still further the important connection between the misdeed and the punishment: that the punishment should match the nature of the crime as closely as possible. This likeness makes wonderfully easier the contest that must take place between the push toward the crime and the recoil of the punishment: the punishment must draw the mind away and lead it toward an end opposite to the one to which the seductive idea of breaking the law is trying to steer it.

Chapter 20: Crimes of Violence

Some crimes are attacks on the person, others on property. The first must without fail be punished with corporal punishments. Neither the great nor the rich should be able to put a price on attacks against the weak and the poor; otherwise wealth, which under the protection of the laws is the reward of industry, becomes the food of tyranny. There is no liberty wherever the laws allow that in certain cases a man should cease to be a person and become a thing. You will then see all the ingenuity of the powerful man bent on drawing out of the throng of civil arrangements those that the law gives in his favor. This discovery is the magic secret that turns citizens into beasts of burden; in the hands of the strong it is the chain with which he binds the actions of the unwary and the weak. This is why in some governments that have every appearance of liberty, tyranny lies hidden, or slips in unforeseen through some corner the lawmaker neglected, where it gathers strength and grows without anyone noticing. Men generally raise the stoutest dikes against open tyranny, but they do not see the tiny insect that gnaws at them and opens a path for the flooding river, a path all the surer for being hidden.

Chapter 21: Punishing Nobles

What, then, will be the punishments due for the crimes of nobles, whose privileges make up a large part of the laws of nations? I shall not examine here whether this hereditary distinction between nobles and commoners is useful in a government or necessary in a monarchy; whether it is true that it forms an intermediate power that checks the excesses of the two extremes, or whether it rather forms a class that, slave to itself and to others, shuts up all the circulation of credit and hope within a very narrow circle, like those fertile and pleasant little islands that stand out in the vast sandy deserts of Arabia; nor whether, granting that inequality is inevitable or useful in society, it is also true that it ought to lie in classes rather than in individuals, to settle in one part of the body politic rather than circulate through the whole of it, to perpetuate itself rather than be born and die away without end. I shall confine myself to the punishments due to this rank alone, and I say that they must be the same for the first citizen as for the last. Every distinction, whether in honors or in wealth, presupposes, if it is to be legitimate, a prior equality founded on the laws, which regard all subjects as equally dependent on them. We must suppose that men, when they renounced their natural despotism, said: let the more industrious have greater honors, and let his fame shine on in his descendants; but let the happier or more honored man hope for more, and not fear less than others to break the agreements by which he is raised above them. It is true that no such decrees were issued by a diet of the human race; but such decrees exist in the unchanging relations of things. They do not destroy the advantages that nobility is supposed to produce, and they prevent its drawbacks; they make the laws formidable by closing every road to impunity. To anyone who said that the same punishment given to a noble and to a commoner is not really the same, because of the difference in their upbringing and because of the infamy that spreads over an illustrious family, I would answer that the measure of punishments is not the sensibility of the guilty man but the public harm, which is all the greater when it is done by someone more favored; that equality of punishment can only be outward, since in reality it is different for every individual; and that the sovereign can remove the infamy from a family by public marks of goodwill toward the guilty man's innocent relations. And who does not know that formalities which strike the senses take the place of reasons for a credulous and admiring people?

Chapter 22: Theft

Thefts that involve no violence ought to be punished with a fine. A man who seeks to enrich himself at another's expense ought to be made poorer out of his own. But theft is usually the crime of poverty and despair, the crime of that unhappy part of mankind to whom the right of property (that terrible and perhaps unnecessary right) has left nothing but bare existence; and fines would increase the number of the guilty beyond the number of crimes, and take bread from the innocent in order to take it from the wicked. The most fitting punishment, then, will be the only kind of slavery that can be called just: the temporary servitude of a man's labor and person to the common society, so that by his own complete dependence he repays it for the unjust despotism he usurped over the social contract. But when theft is mixed with violence, the punishment too ought to be a mixture of the corporal and the servile. Other writers before me have shown the evident disorder that comes from not distinguishing the punishments for violent thefts from those for thefts by stealth, and so making the absurd equation of a large sum of money with a man's life; but it is never superfluous to repeat what has almost never been put into practice. Political machines, more than any others, keep the motion they have taken on, and are the slowest to take on a new one. These are crimes of different natures, and in politics too that axiom of mathematics holds most certainly, that between quantities of different kinds the distance is infinite.

Chapter 23: Infamy

Personal injuries that offend against honor, that is, against that just portion of esteem which a citizen has the right to claim from others, ought to be punished with infamy. Infamy is a sign of public disapproval that deprives the guilty man of public regard, of his country's trust, and of that near-brotherhood which society inspires. It is not something the law can hand out at will. The infamy the law imposes must therefore be the same as the infamy that arises from the relations of things, the same as that of universal morality, or of the particular morality that depends on particular systems, which legislate the opinions of the common people and of the nation they inspire. If the one differs from the other, either the law loses the public's veneration, or the ideas of morality and probity fade away, in spite of all the fine speeches, which never stand up against examples. Whoever declares actions infamous that are in themselves indifferent lessens the infamy of actions that truly are so. Punishments of infamy ought neither to be too frequent nor to fall on a great number of people at once: not the first, because the real and too frequent effects of things that depend on opinion weaken the force of opinion itself; not the second, because the infamy of many dissolves into the infamy of none.

Painful corporal punishments ought not to be given for crimes founded on pride, which draw glory and nourishment from the pain itself. For these, ridicule and infamy are the fitting punishments: they curb the pride of the fanatics with the pride of the onlookers, and their grip is so tenacious that truth itself frees itself from them only by slow and stubborn efforts. In this way, setting force against force and opinion against opinion, the wise lawmaker breaks the admiration and astonishment stirred up in the people by a false principle, whose well-drawn consequences usually veil its original absurdity from the common eye.

This is the way not to confound the relations of things and their unchanging nature, which, being bounded by no time and working without pause, confounds and unravels every limited regulation that departs from it. It is not only the arts of taste and pleasure that take the faithful imitation of nature as their universal principle. Politics itself, at least the true and lasting kind, is subject to this general maxim, since it is nothing but the art of best directing the unchanging feelings of men and making them work together.

Chapter 24: The Idle

Whoever disturbs the public peace, whoever does not obey the laws, that is, the terms on which men put up with one another and defend one another, must be excluded from society: that is, he must be banished. This is the reason why wise governments do not tolerate, in the midst of labor and industry, that kind of political idleness which stern moralists confuse with the idleness of riches accumulated by industry, an idleness that is necessary and useful as society expands and administration contracts. I call political idleness the kind that contributes nothing to society, either by labor or by wealth; that gains and never loses; that the common people venerate with stupid admiration and the wise man regards with scornful pity for the beings who are its victims; that, lacking the spur of the active life, which is the need to guard or increase life's comforts, leaves all their energy to the passions of opinion, which are not the weakest. A man is not politically idle who enjoys the fruits of his ancestors' vices or virtues, and in exchange for his present pleasures gives bread and a livelihood to the industrious poor, who wage in peace the silent war of industry against wealth, instead of the uncertain and bloody war of force. It is therefore the laws, and not the stern and narrow virtue of a few censors, that ought to define which idleness is to be punished.

It would seem that banishment should be imposed on those who, accused of an atrocious crime, have a great probability of guilt against them, but not certainty. To do this, however, requires a statute as little arbitrary and as precise as possible, one that condemns to banishment the man who has put the nation in the fatal choice of either fearing him or doing him wrong, while leaving him the sacred right to prove his innocence. The grounds ought to be stronger against a native than against a foreigner, and against a man accused for the first time than against one accused many times.

Chapter 25: Banishment and Confiscation

But should a man who is banished and excluded forever from the society of which he was a member also be deprived of his property? The question can be looked at in different ways. To lose one's property is a greater punishment than banishment; there ought therefore to be some cases in which, in proportion to the crime, all or part of the property is lost, and some in which none is. All of it will be lost when the banishment the law imposes is such as to annihilate every relation between society and the offending citizen. The citizen then dies, and the man remains; and with respect to the body politic this ought to produce the same effect as natural death. It would seem, then, that the property taken from the guilty man ought to go to his lawful heirs rather than to the prince, since death and such a banishment are the same with respect to the body politic. But it is not on the strength of this subtlety that I dare to disapprove of confiscations. Some have argued that confiscations have been a curb on private vengeance and private violence; they do not reflect that a punishment, even when it produces some good, is not for that reason always just, because to be just it must be necessary; and a useful injustice cannot be tolerated by the lawmaker who means to shut every door against watchful tyranny, which flatters with momentary good and with the happiness of a few illustrious men, and scorns the future ruin and the tears of countless obscure ones. Confiscations put a price on the heads of the weak, make the innocent suffer the punishment of the guilty, and drive the innocent themselves into the desperate necessity of committing crimes. What sadder sight is there than a family dragged into infamy and poverty by the crimes of its head, when the submission the laws require of it would have kept it from preventing those crimes, even if it had had the means?

Chapter 26: The Spirit of the Family

These fatal and authorized injustices have been approved even by the most enlightened men and practiced by the freest republics, because they looked on society as a union of families rather than as a union of men. Suppose there are a hundred thousand men, or twenty thousand families of five persons each, counting the head who represents the family. If the association is made by families, there will be twenty thousand men and eighty thousand slaves; if it is an association of men, there will be a hundred thousand citizens and not one slave. In the first case there will be a republic made up of twenty thousand little monarchies; in the second, the republican spirit will breathe not only in the public squares and assemblies of the nation but within the walls of the home, where so much of men's happiness or misery lies. In the first case, since laws and customs are the effect of the habitual feelings of the members of the republic, that is, of the heads of families, the monarchical spirit will gradually creep into the republic itself, and its effects will be held in check only by the opposing interests of each, not by any feeling that breathes liberty and equality. The spirit of the family is a spirit of detail, confined to small facts. The spirit that governs republics, master of general principles, sees the facts and condenses them into the main classes that matter to the good of the greater number. In the republic of families, the sons remain in the power of the head as long as he lives, and must wait for his death to have an existence that depends on the laws alone. Used to bending and fearing in the greenest and most vigorous years of life, when the feelings are least tempered by that fear born of experience which is called moderation, how will they resist the obstacles that vice always puts in the way of virtue in feeble and declining age, when even despair of living to see the fruits stands against vigorous change?

When the republic is one of men, the family is a subordination not of command but of contract. The sons, when age draws them out of the dependence of nature, which is the dependence of weakness and of the need for upbringing and protection, become free members of the city, and they submit to the head of the family in order to share in its advantages, as free men do in the great society. In the first case the sons, who are the largest and most useful part of the nation, are at the mercy of their fathers; in the second, no bond is commanded except the sacred and inviolable one of giving each other the help we need, and the bond of gratitude for benefits received, which is destroyed less by the malice of the human heart than by an ill-conceived subjection that the laws require.

Such contradictions between the laws of the family and the fundamental laws of the republic are a fertile source of further contradictions, between domestic morality and public morality, and so they set up a perpetual conflict in every man's mind. The first inspires subjection and fear, the second courage and liberty; the first teaches us to confine our kindness to a small number of people we did not freely choose, the second to extend it to every class of men; the first commands a continual sacrifice of oneself to an empty idol called the good of the family, which is often the good of no one in it, the second teaches us to pursue our own advantage without offending the laws, or stirs us to sacrifice ourselves for our country, rewarded in advance by a fanaticism that runs ahead of the deed. Such conflicts make men disdain to follow a virtue they find tangled and confused, and set at the kind of distance that obscurity always puts between us and things, physical and moral alike. How often a man, looking back on his past actions, is astonished to find that he has been dishonest! As society multiplies, each member becomes a smaller part of the whole, and the republican feeling diminishes in proportion, unless the laws take care to strengthen it. Societies, like human bodies, have their fixed limits, and if they grow beyond them their economy is necessarily disturbed. It seems that the mass of a state ought to be in inverse ratio to the sensibility of those who compose it; otherwise, if both grew together, good laws would find, in preventing crimes, an obstacle in the very good they had produced. A republic that is too vast can be saved from despotism only by dividing itself up and uniting again as a number of federated republics. But how is this to be achieved? By a despotic dictator with the courage of the Roman dictator Sulla, and as much genius for building as Sulla had for destroying. Such a man, if he is ambitious, will have the glory of all the ages waiting for him; if he is a philosopher, the blessings of his fellow citizens will console him for the loss of his authority, even supposing he did not become indifferent to their ingratitude. As the feelings that bind us to the nation grow weaker, the feelings for the things immediately around us grow stronger; and so under the strongest despotism friendships are the most lasting, and the family virtues, which are always middling, are the most common, or rather the only ones. From this anyone can see how narrow were the views of most lawmakers.

Chapter 27: Mild Punishments

But the course of my ideas has carried me away from my subject, and I must hurry back to clarify it. One of the greatest curbs on crime is not the cruelty of punishments but their certainty, and consequently the vigilance of magistrates, and that severity of an inexorable judge which, if it is to be a useful virtue, must go together with mild laws. The certainty of a punishment, even a moderate one, will always make a greater impression than the fear of a more terrible one joined with the hope of going unpunished; for evils, even the smallest, when they are certain, always frighten the human mind, while hope, that gift of heaven which often stands in for everything else, always keeps the idea of greater evils at a distance, above all when impunity, which greed and weakness so often grant, adds to its force. The very atrocity of a punishment makes men dare all the more to escape it, the greater the evil they face; it makes them commit more crimes to escape the punishment for one. The countries and the ages of the most atrocious punishments have always been those of the bloodiest and most inhuman deeds, for the same spirit of ferocity that guided the lawmaker's hand ruled the hand of the parricide and the hired assassin. On the throne it dictated iron laws to the atrocious souls of slaves, who obeyed; in private obscurity it spurred them to slaughter tyrants in order to make new ones.

As punishments grow crueler, men's minds, which like fluids always settle to the level of the things around them, grow callous; and the ever-living force of the passions brings it about that after a hundred years of cruel punishments the wheel, on which the condemned were broken alive, frightens men no more than prison once did. For a punishment to have its effect it is enough that the harm of the punishment should exceed the good that comes from the crime; and into this excess of harm must be reckoned the certainty of the punishment and the loss of the good the crime would have produced. Everything beyond this is superfluous, and therefore tyrannical. Men govern themselves by the repeated action of the evils they know, not of those they do not. Imagine two nations, each with a scale of punishments proportioned to its scale of crimes; in one the greatest punishment is perpetual servitude, a lifetime of forced labor, in the other the wheel. I say that the first will fear its greatest punishment as much as the second fears its own. And if there were a reason to bring the second nation's greater punishments into the first, the same reason would serve to increase the punishments of the second, passing by imperceptible degrees from the wheel to slower and more studied torments, and on to the last refinements of the science that tyrants know all too well.

Two further fatal consequences follow from cruel punishments, both contrary to the very purpose of preventing crimes. The first is that it is not so easy to keep the essential proportion between crime and punishment. However much an industrious cruelty has varied the kinds of punishment, they cannot go beyond the utmost force that the human body and human feeling can bear. Once that extreme is reached, there would be no greater punishment left to match the more harmful and atrocious crimes, as there would have to be in order to prevent them. The other consequence is that impunity itself is born of atrocious punishments. Men are confined within certain limits, in good as in evil, and a spectacle too atrocious for humanity can only be a passing fury, never a settled system such as laws must be. If the laws really are cruel, either they are changed, or a fatal impunity is born of the laws themselves.

Who can read the histories without shuddering with horror at the barbarous and useless torments that men who called themselves wise invented and carried out in cold blood? Who can help feeling the most sensitive part of himself tremble at the sight of thousands of wretches torn apart with deliberate formalities and slow tortures by men endowed with the same senses, and therefore with the same passions, as themselves, a cheerful spectacle for a fanatical crowd: wretches whom poverty, either willed or tolerated by laws that have always favored the few and outraged the many, had driven to a desperate return to the first state of nature; or who were accused of impossible crimes invented by timid ignorance; or whose only guilt was to be faithful to their own principles?

Chapter 28: The Death Penalty

This useless prodigality of punishments, which has never made men better, has driven me to ask whether death is really useful and just in a well-ordered government. What can be the right that men claim to slaughter their fellow men? Certainly not the right from which sovereignty and the laws arise. The laws are nothing but the sum of the smallest portions of each man's private liberty; they represent the general will, which is the aggregate of the particular wills. Who has ever been willing to leave to other men the power to kill him at their discretion? How could the smallest sacrifice of each man's liberty contain the sacrifice of the greatest of all goods, life itself? And if that sacrifice was made, how is such a principle to be squared with the other, that a man has no right to kill himself, a right he would need to have if he could give this one away, to another man or to society as a whole?

The death penalty, then, is not a right, for I have shown that it cannot be one. It is a war of the nation against a citizen, waged because the nation judges the destruction of his being to be necessary or useful. But if I can show that death is neither useful nor necessary, I shall have won the cause of humanity.

The death of a citizen can be thought necessary for only two reasons. The first is when, even deprived of his liberty, he still has such connections and such power that he threatens the security of the nation: when his mere existence could bring about a dangerous revolution in the established form of government. The death of a citizen becomes necessary, then, when the nation is recovering or losing its liberty, or in a time of anarchy, when disorder itself takes the place of law. But under the tranquil reign of law, under a form of government that has the nation's united support, well defended without and within by force and by opinion, which is perhaps more effective than force itself, where command rests with the true sovereign alone, and where riches buy pleasures and not authority, I see no necessity whatever for destroying a citizen; unless his death were the true and only curb to keep others from committing crimes. That is the second reason for which the death penalty may be thought just and necessary.

The experience of every age shows that the ultimate punishment has never stopped men who were determined to injure society. There is the example of the citizens of Rome; there are the twenty years of the reign of Elizabeth, Empress of Russia, in which she gave the fathers of peoples this illustrious example, worth at least as much as many conquests bought with the blood of their country's sons. But if all this should fail to persuade men, to whom the language of reason is always suspect and the language of authority always effective, it is enough to consult human nature to feel the truth of what I assert.⁷

It is not the intensity of a punishment that has the greatest effect on the human mind, but its duration; for our sensibility is moved more easily and more lastingly by small but repeated impressions than by a strong but passing shock. The empire of habit is universal over every being that feels; and just as it is with habit's help that a man speaks and walks and provides for his needs, so moral ideas are stamped on the mind only by lasting and repeated blows. It is not the terrible but passing spectacle of a villain's death that is the strongest curb on crime, but the long and painful example of a man deprived of his liberty who, turned into a beast of burden, repays with his labor the society he has offended. That thought is effective because it returns to us so very often: "I myself shall be reduced to so long and wretched a condition if I commit such crimes." It is far more powerful than the idea of death, which men always see in a dim distance.

The death penalty makes an impression that, for all its force, cannot make up for the quick forgetting that is natural to man even in the most essential things, and that the passions hasten. As a general rule, violent passions seize men powerfully but not for long. That is why they are fit to produce those revolutions that turn ordinary men into Persians or into Spartans; but under a free and tranquil government impressions ought to be frequent rather than strong.

For most people the death penalty becomes a spectacle, and for some an object of pity mixed with indignation. Both these feelings fill the minds of the spectators more than the salutary terror the law claims to inspire. With moderate and continuous punishments, though, terror is the dominant feeling, because it is the only one. The limit the lawmaker ought to set to the severity of punishments seems to lie here: at the point where the feeling of pity begins to prevail over every other in the minds of the spectators of an execution, which is staged more for them than for the condemned.

For a punishment to be just it should have only those degrees of intensity that are enough to turn men away from crime. Now there is no one who, on reflection, could choose the total and perpetual loss of his own liberty, however profitable a crime might be; therefore the intensity of perpetual servitude, put in place of the death penalty, has all it needs to deter the most determined mind. I add that it has more. A great many men face death with a calm and steady eye, some from fanaticism, some from vanity, which nearly always goes with a man beyond the grave, some in a last desperate attempt either to stop living or to escape their misery. But neither fanaticism nor vanity survives among fetters and chains, under the rod, under the yoke, in an iron cage; and the desperate man does not end his sufferings there, he begins them. Our minds hold out better against violence and extreme but passing pain than against time and unending weariness; because the mind can, so to speak, gather all of itself together for a moment to repel the first, but its vigorous elasticity is not enough to resist the long and repeated action of the second. With the death penalty, every example given to the nation presupposes a crime; with perpetual servitude a single crime gives a great many lasting examples. And if it is important that men should often see the power of the laws, executions must not be far apart; they therefore presuppose that crimes are frequent; therefore, for this punishment to be useful, it must not make on men all the impression it ought to make: that is, it must be useful and not useful at the same time. To anyone who said that perpetual servitude is as painful as death, and therefore just as cruel, I shall answer that if all the unhappy moments of servitude were added together, it would perhaps be even more painful; but those moments are spread over a whole life, while death exerts all its force in a single moment. And this is the advantage of perpetual servitude: it frightens the man who sees it more than the man who suffers it. For the first considers the whole sum of unhappy moments, while the second is distracted from future unhappiness by the unhappiness of the present moment. All evils are magnified in the imagination, and the sufferer finds resources and consolations unknown to the spectators and not believed by them, since they put their own sensibility in place of the hardened soul of the unhappy man.

Here, more or less, is the reasoning of a thief or a murderer, whose only counterweight against breaking the laws is the gallows or the wheel. I know that to set out the feelings of one's own mind is an art learned through education; but a thief's principles work none the less for his not being able to state them well. "What are these laws I am supposed to respect, that leave so great a gap between me and the rich man? He refuses me the penny I beg of him, and excuses himself by telling me to work, a thing he knows nothing about. Who made these laws? Rich and powerful men, who have never deigned to visit the squalid huts of the poor, who have never broken a moldy crust among the innocent cries of starving children and the tears of a wife. Let us break these bonds, fatal to the greater part of mankind and useful to a few idle tyrants; let us strike at injustice at its source. I shall go back to my state of natural independence; I shall live free and happy for a while on the fruits of my courage and my industry. The day of pain and repentance may come, but it will be short, and I shall have one day of suffering for many years of liberty and pleasure. King of a small band, I shall correct the mistakes of fortune, and I shall see these tyrants grow pale and tremble in the presence of the man they used to rank, with insulting pomp, below their horses and their dogs." Then religion comes into the mind of the villain, who abuses everything, and by offering him an easy repentance and a near certainty of eternal happiness, it greatly lessens the horror of that last tragedy.

But the man who sees before his eyes a great many years, or even the whole course of his life, to be passed in servitude and pain in full view of his fellow citizens, among whom he now lives free and in company, a slave of the very laws that used to protect him, makes a useful comparison between all this and the uncertain outcome of his crimes and the shortness of the time he would have to enjoy their fruits. The continual example of those he sees, here and now, as victims of their own imprudence makes a far stronger impression on him than the spectacle of an execution, which hardens him more than it corrects him.

The death penalty is not useful, because of the example of cruelty it gives to men. If the passions, or the necessities of war, have taught men to shed human blood, the laws that are meant to moderate men's conduct ought not to add to that savage example, which is all the more fatal because death by law is inflicted with deliberation and formality. It seems to me absurd that the laws, which are the expression of the public will, which detest and punish homicide, should commit one themselves: that to deter citizens from murder, they order a public murder. What are the true laws, and the most useful? The agreements and conditions that everyone would want to keep and to propose, at a moment when the ever-heeded voice of private interest is silent or is joined to the voice of the public interest. What are each man's feelings about the death penalty? Let us read them in the indignation and contempt with which everyone looks on the executioner, who is, after all, an innocent agent of the public will, a good citizen who contributes to the public good, the necessary instrument of public security at home, as brave soldiers are abroad. What, then, is the origin of this contradiction? And why is this feeling in men ineradicable, in spite of reason? Because in the most secret part of their minds, the part that more than any other still keeps the original shape of their ancient nature, men have always believed that their own lives are in no one's power but that of necessity, which rules the universe with its iron scepter.

What must men think when they see wise magistrates and grave priests of justice have a prisoner dragged to his death with slow ceremony and calm indifference; and when, while a wretched man writhes in his last agonies awaiting the fatal blow, the judge passes by with unfeeling coldness, and perhaps even with a secret satisfaction in his own authority, to go and enjoy the comforts and pleasures of life? "Ah!" they will say, "these laws are nothing but the pretexts of force, and the studied, cruel formalities of justice are nothing but a conventional language for sacrificing us more safely, like victims marked out for sacrifice, to the insatiable idol of despotism. Murder, which they preach to us as a terrible crime, we see them commit without repugnance and without anger. Let us profit by the example. Violent death seemed a terrible thing in the descriptions we were given of it, but we see that it is the business of a moment. How much less terrible will it be for a man who does not see it coming, and is spared almost everything painful in it!" Such are the fatal fallacies that men inclined to crime reason out, if not clearly, at least confusedly; men in whom, as we have seen, the abuse of religion is more powerful than religion itself.

If I am confronted with the example of almost every age and almost every nation, which have punished some crimes with death, I shall answer that this example comes to nothing in the face of truth, against which there is no statute of limitations; that the history of mankind gives us the idea of an immense sea of errors, on which a few confused truths float, at great distances from one another. Human sacrifice was common to almost every nation, and who will dare to excuse it? That a few societies, and for a short time only, have refrained from putting men to death is rather in my favor than against me, for this is the common fortune of great truths, whose lifetime is only a flash of lightning compared with the long dark night that enfolds mankind. The happy age has not yet arrived when truth, like error until now, will belong to the greatest number; and from this universal law the only truths exempted so far have been those that infinite Wisdom chose to set apart from the rest by revealing them.

The voice of a philosopher is too weak against the uproar and the shouting of so many who are led by blind custom; but the few wise men scattered over the face of the earth will echo me in their inmost hearts. And if truth, through the countless obstacles that keep it from a monarch, though he would have it otherwise, could reach as far as his throne, let him know that it comes there with the secret wishes of all men; let him know that before him the bloody fame of conquerors will fall silent, and that a just posterity will give him the first place among the peaceful trophies of a Titus, an Antoninus, a Trajan, the good emperors of Rome.

Happy would humanity be if laws were being given to it for the first time, now that we see seated on the thrones of Europe beneficent monarchs, who encourage the peaceful virtues, the sciences and the arts, fathers of their peoples, crowned citizens, whose growing authority makes their subjects' happiness, because it removes that intermediate despotism, crueler because less secure, which used to stifle the wishes of the people, wishes always sincere, and always auspicious whenever they can reach the throne! If these monarchs, I say, let the old laws stand, that comes from the infinite difficulty of scraping the venerated rust of many centuries off our errors; and it is a reason for enlightened citizens to wish all the more ardently for the continual growth of their authority.

Chapter 29: On Arrest

An error no less common than it is contrary to the purpose of society, which is each man's confidence in his own security, is to leave the magistrate who executes the laws free to imprison a citizen as he pleases: to take away an enemy's liberty on frivolous pretexts, and to leave a friend unpunished in spite of the strongest signs of guilt. Imprisonment is a punishment that, unlike every other, must of necessity come before the crime is declared; but this distinguishing mark does not take away the other, essential one, namely that the law alone determines the cases in which a man deserves punishment. The law, then, will specify the signs of a crime that warrant holding the accused in custody and subjecting him to examination and to punishment. Public report, flight, a confession made out of court, the confession of an accomplice, threats and lasting enmity toward the injured party, the physical evidence of the crime, and similar signs are sufficient grounds for arresting a citizen. But these grounds must be fixed by the law and not by the judges, whose decrees are always opposed to political liberty when they are not particular applications of a general maxim that exists in the public code. As punishments become moderate, as squalor and hunger are banished from the prisons, as compassion and humanity pass through the iron doors and govern the inexorable and hardened ministers of justice, the laws will be able to make do with ever weaker signs as grounds for arrest. A man accused of a crime, imprisoned and acquitted, ought to carry no mark of infamy with him. How many Romans accused of the gravest crimes and then found innocent were revered by the people and honored with public office! Why, then, is the lot of an innocent man so different in our time? Because in the present criminal system, in men's opinion, the idea of force and high-handedness prevails over the idea of justice; because the accused and the convicted are thrown together into the same cave; because prison is a punishment for the accused rather than a means of holding him; and because the internal force that guards the laws is separated from the external force that defends the throne and the nation, when the two ought to be united. United, the first would be joined to the judicial power through the common support of the laws, without being directly subject to it; and the glory that goes with the pomp and splendor of a military body would remove the infamy, which, like all popular feelings, attaches more to the manner than to the thing. This is proved by the fact that military prisons are not thought so disgraceful in common opinion as the prisons of the courts. In the people, in their customs and in their laws, which always lag more than a century behind the actual enlightenment of a nation, there still live on the barbarous impressions and savage ideas of the northern hunters who were our forefathers.

Some have held that a crime, that is, an action contrary to the laws, may be punished wherever it is committed: as though the character of a subject were indelible, that is, a synonym for that of a slave, or worse; as though a man could be the subject of one dominion and live in another, and his actions could be subject without contradiction to two sovereigns and two codes that often contradict each other. Some likewise believe that a cruel act done, say, in Constantinople may be punished in Paris, for the abstract reason that whoever offends humanity deserves to have all humanity for his enemy and to be execrated by all; as though judges were the avengers of men's feelings, and not rather of the agreements that bind men to one another. The place of punishment is the place of the crime, because there alone, and nowhere else, are men compelled to harm a private person in order to prevent harm to the public. A villain who has broken none of the agreements of a society of which he was not a member may be feared, and therefore exiled and excluded by the superior force of that society; but he may not be punished with the formalities of the laws, which avenge broken agreements, not the inner wickedness of actions.

Those guilty of lighter crimes are usually punished either in the darkness of a prison or by being sent to serve as an example, in a distant and therefore almost useless servitude, to nations they never offended. Since men are not drawn in a moment to commit the gravest crimes, most people will regard the public punishment of a great crime as something foreign to them, something that could never happen to them; but the public punishment of lighter crimes, crimes the mind is closer to, will make an impression that turns it away from these, and so all the more from the others. Punishments ought to be proportioned to one another and to crimes not only in their force but also in the manner of inflicting them. Some excuse the punishment of a small crime when the injured party forgives it: an act in keeping with kindness and humanity, but contrary to the public good, as though a private citizen could cancel the need for an example by his forgiveness in the same way that he can waive compensation for the injury. The right to have a man punished does not belong to one person alone, but to all the citizens, or to the sovereign. The injured man can renounce only his own portion of that right; he cannot cancel everyone else's.

Chapter 30: Trials and the Statute of Limitations

Once the proofs are known and the certainty of the crime has been weighed, the accused must be granted the time and the means he needs to defend himself; but the time must be short enough not to prejudice the promptness of the punishment, which we have seen to be one of the chief curbs on crime. A misguided love of humanity seems to oppose so short a time; but every doubt will vanish once we reflect that the dangers to innocence grow with the defects of the laws.

The laws, though, must fix a definite span of time both for the defense of the accused and for the proof of crimes; the judge would become a lawmaker if he had to decide how much time was needed to prove a crime. In the same way, those atrocious crimes that leave a long memory among men deserve, once they are proved, no statute of limitations in favor of an accused man who has escaped by flight. But minor and obscure crimes ought to have one, so that a citizen is not left uncertain of his fate; for the obscurity in which such crimes have long been wrapped takes away the example of impunity, and meanwhile the accused keeps the power to become a better man. It is enough for me to point out these principles, since a precise limit can be fixed only for a given body of laws and in the given circumstances of a society. I shall add only this: once the usefulness of moderate punishments in a nation is established, laws that shorten or lengthen the period of limitation, or the time allowed for proof, in proportion to the crime, making imprisonment itself or voluntary exile a part of the punishment, will provide an easy way of distributing a few mild punishments over a great number of crimes.

These periods, however, will not increase in exact proportion to the atrocity of crimes, since the probability of crimes is in inverse ratio to their atrocity. The time for examination, then, ought to be shortened and the period of limitation lengthened; which might seem to contradict what I said before, namely that equal punishments can be given to unequal crimes, if the time spent in prison or the period of limitation before the sentence is counted as a punishment. To explain my idea to the reader, I distinguish two classes of crimes. The first is that of atrocious crimes, and it begins with homicide and includes every greater villainy; the second is that of lesser crimes. The distinction is founded on human nature. The security of one's own life is a right of nature; the security of one's property is a right of society. The number of motives that drive men past the natural feeling of pity is far smaller than the number of motives that, through the natural greed to be happy, drive them to violate a right they do not find in their hearts but in the conventions of society. The very great difference in probability between these two classes requires that they be governed by different principles. In the most atrocious crimes, because they are rarer, the time for examination ought to be shortened, since the probability that the accused is innocent is greater; and the period of limitation ought to be lengthened, because only a final sentence on a man's innocence or guilt removes the lure of impunity, whose harm grows with the atrocity of the crime. But in lesser crimes, since the probability that the accused is innocent is smaller, the time for examination ought to be lengthened, and since the harm of impunity is smaller, the period of limitation ought to be shortened. Such a division of crimes into two classes ought not to be admitted if the harm of impunity diminished in the same measure as the probability of the crime increased. Let it be remembered that an accused man whose innocence and guilt are both unproved, though set free for lack of evidence, may be arrested again and examined again for the same crime, if new signs of guilt specified by the law come to light, until the period of limitation fixed for his crime has run out. This, at least, is the balance that seems to me fitting for defending both the security and the liberty of subjects; for it is all too easy to favor the one at the expense of the other, so that these two goods, the inalienable and equal patrimony of every citizen, are left unprotected and unguarded, the one against open or disguised despotism, the other against the turbulent anarchy of the mob.

Chapter 31: Crimes Hard to Prove

In the light of these principles it will seem strange, to anyone who does not reflect that reason has almost never been the lawgiver of nations, that the most atrocious crimes, and the most obscure and fanciful ones, which is to say those least likely to have happened, should be proved by conjectures and by the weakest and most ambiguous evidence: as though the laws and the judge had an interest not in finding the truth but in proving the crime; as though the danger of condemning an innocent man did not grow exactly as the probability of his innocence exceeds the probability of his guilt. Most men lack the vigor that great crimes and great virtues equally require, and so the two seem always to appear together in nations that hold together more by the energy of their government and by passions working in concert for the public good than by their sheer size or the steady goodness of their laws. In nations of the other kind, held together by size or by laws, the passions, grown weak, seem better suited to preserving the form of government than to improving it. From this an important consequence follows: great crimes in a nation are not always proof of its decline.

There are some crimes that are at once frequent in society and hard to prove, and in these the difficulty of proof takes the place of the probability of innocence. And since the harm done by leaving them unpunished counts for less, the more their frequency depends on causes other than the hope of impunity, the time allowed for the investigation and the period of limitation ought both to be shortened. And yet adultery and "Greek lust", as the jurists called sexual love between men, crimes hard to prove as they are, are precisely the ones that by the accepted principles admit tyrannical presumptions, quasi-proofs and half-proofs (as though a man could be half innocent or half guilty, that is, half punishable and half acquittable); and here torture exercises its cruel empire over the person of the accused, over the witnesses, and even over the whole family of some unhappy man, as certain doctors of law teach with wicked coolness, doctors whose books are handed to judges as their rule and their law.

Adultery, considered politically, is a crime that draws its force and its direction from two causes: the changeable laws of men, and that very powerful attraction which draws each sex toward the other. In many respects this attraction is like the gravity that moves the universe: like gravity it weakens with distance, and as gravity modifies every motion of bodies, so this modifies almost every motion of the mind, for as long as its season lasts. It is unlike gravity in one respect: gravity comes into balance with the obstacles in its way, but this attraction for the most part grows stronger and more vigorous as the obstacles grow.

If I were speaking to nations still without the light of religion, I should say that there is another considerable difference between this crime and the others. It springs from the abuse of a need constant and universal in all mankind, a need older than society, indeed a need that founded society itself, whereas the other crimes, which tend to destroy society, have their origin in passing passions rather than in a natural need. To anyone who knows history and men, this need seems always to amount to a constant quantity in the same climate. If that were true, then laws and customs that tried to reduce its total sum would be useless, indeed harmful, because their effect would be to load some people with their own needs and other people's too; while those would be wise which, following the easy slope of the ground, so to speak, divided the sum and channeled it into so many small, equal portions that they prevented, evenly and everywhere, both drought and flood. Faithfulness in marriage is always proportionate to the number and the freedom of marriages. Where inherited prejudice rules them, where the authority of the family makes and unmakes them, there gallantry secretly breaks their bonds in spite of conventional morality, whose office is to preach against the effects while forgiving the causes. But such reflections are unnecessary for one who lives in the true religion and has higher motives to correct the force of natural effects. The act of this crime is so instantaneous and so secret, so covered by the very veil the laws have drawn over it (a necessary veil, but a fragile one, which raises the value of the thing instead of lessening it), the occasions are so easy and the consequences so ambiguous, that it lies more in the lawmaker's power to prevent it than to correct it. A general rule: in every crime that by its nature must usually go unpunished, the punishment becomes an incentive. It is a property of our imagination that difficulties, if they are not insurmountable, or too hard for the mental laziness of each particular man, excite the imagination more vividly and enlarge the object; for they are like so many walls that keep the wandering, fickle imagination from leaving the object, and as they force it to run over all its aspects, it clings more tightly to the pleasant part, toward which our mind naturally rushes, than to the painful and fatal part, from which it flees and turns away.

"Attic love", the same thing under its other name, so severely punished by the laws and so readily handed over to the torments that overcome innocence, has its root less in the needs of man free and alone than in the passions of man social and enslaved. It draws its strength not so much from a surfeit of pleasures as from that kind of education which begins by making men useless to themselves in order to make them useful to others: in those colleges where ardent youth is packed together, where an insurmountable barrier stands against every other kind of commerce, and all the vigor of nature, as it unfolds, is spent uselessly for humanity, and even brings on old age before its time.

Infanticide is likewise the effect of an inescapable contradiction, the position of a woman who has given way, through weakness or to violence. Caught between infamy and the death of a being incapable of feeling its harm, how could she not prefer that death to the certain misery to which she and the unhappy fruit of her body would both be exposed? The best way to prevent this crime would be to protect weakness with effective laws against tyranny, which exaggerates the vices that cannot be covered with the cloak of virtue.

I do not claim to lessen the just horror these crimes deserve. But in pointing out where they spring from, I believe I have the right to draw a general conclusion: that the punishment of a crime cannot be called strictly just (which is to say, necessary) until the law has used the best means possible, in a nation's given circumstances, to prevent it.

Chapter 32: Suicide

Suicide is a crime that seems unable to admit a punishment in the proper sense, since the punishment can fall only on the innocent or on a cold, unfeeling body. If it falls on the body, it makes no more impression on the living than flogging a statue would; if it falls on the innocent, it is unjust and tyrannical, because men's political liberty necessarily supposes that punishments are purely personal. Men love life too much, and everything around them confirms them in that love. The seductive image of pleasure, and hope, that sweetest deceiver of mortals, for whose sake they gulp down great draughts of evil mixed with a few drops of contentment, attract them too strongly for us to fear that the necessary impunity of such a crime could have any influence on men. Whoever fears pain obeys the laws; but death extinguishes in the body every source of pain. What motive, then, will hold back the suicide's desperate hand?

Whoever kills himself does less harm to society than the man who leaves its borders for good, because the first leaves all his property behind, while the second takes himself away along with part of what he owns. Indeed, if a society's strength consists in the number of its citizens, the man who removes himself and gives himself to a neighboring nation does twice the harm of the man who simply takes himself out of society by dying. The question therefore comes down to this: is it useful or harmful to a nation to leave each of its members perpetually free to go away?

No law should be promulgated that is not armed with force, or that the nature of the circumstances makes impossible to sustain. Opinion rules men's minds, and opinion obeys the lawmaker's slow and indirect impressions and resists his direct and violent ones; and so useless laws, despised by men, pass their own degradation on to even the most wholesome laws, which come to be regarded more as obstacles to be got round than as the store of the public good. Indeed, if our feelings are limited, as has been said, then the more veneration men give to objects outside the laws, the less will be left for the laws themselves. From this principle the wise dispenser of the public happiness could draw some useful consequences, but setting them out would take me too far from my subject, which is to prove how useless it is to make the state a prison. Such a law is useless, because unless a country is cut off from all others by inaccessible cliffs or an unnavigable sea, how can every point of its circumference be closed, and who will guard the guards? The man who carries everything away cannot be punished once he has done it. Such a crime, once it is committed, can no longer be punished, and to punish it beforehand is to punish men's wills and not their actions: it is to give orders to intention, the freest part of man, and the farthest from the reach of human laws. To punish the absent man in the property he leaves behind would be easily evaded by collusion, which cannot be prevented without tyrannizing over contracts, and besides it would bring all trade between nations to a standstill. To punish him if he came back would be to prevent the harm done to society from being repaired, by making every departure permanent. The very prohibition against leaving a country increases its natives' desire to leave, and it warns foreigners not to come in.

What are we to think of a government that has no means but fear to keep men in their country, men who are naturally attached to it by the first impressions of childhood? The surest way to keep citizens at home is to increase the relative well-being of each of them. Just as every effort should be made to keep the balance of trade in our favor, so it is the greatest interest of the sovereign and the nation that the sum of happiness, compared with that of the surrounding nations, should be greater here than elsewhere. The pleasures of luxury are not the principal elements of this happiness, though luxury is a necessary remedy for the inequality that grows as a nation advances, without which wealth would pile up in a single hand. Where a country's territory grows faster than its population, luxury favors despotism. It does so, first, because the scarcer men are, the less industry there is; and the less industry there is, the more the poor depend on the display of the rich, and the harder it is, and the less feared, for the oppressed to unite against the oppressors. And it does so, second, because homage, offices, distinctions and submission, which make the distance between the strong and the weak more keenly felt, are more easily obtained from the few than from the many, since men are the more independent the less they are watched, and the less watched the more numerous they are. But where population grows faster than territory, luxury works against despotism, because it rouses men's industry and activity, and need offers the rich man too many pleasures and comforts for the luxuries of display, which feed the habit of dependence, to take the largest place. Hence it may be observed that in states that are vast, weak and thinly peopled, unless other causes stand in the way, the luxury of display prevails over the luxury of comfort; but in states more populous than vast, the luxury of comfort always shrinks the luxury of display. The trade in luxuries and their passing from hand to hand has this drawback, however: though it is carried on through many hands, it begins with a few and ends with a few, and only the smallest share reaches the greatest number, so that it does not prevent the feeling of poverty, which comes more from comparison than from reality. It is security, and liberty limited only by the laws, that form the chief foundation of this happiness; with them the pleasures of luxury favor population, and without them they become the instrument of tyranny. As the noblest wild beasts and the freest birds withdraw into solitudes and inaccessible forests and leave the fertile, smiling countryside to man who lies in wait for them, so men flee from pleasure itself when tyranny hands it out.

It is proved, then, that a law imprisoning subjects in their own country is useless and unjust. So too, therefore, is the punishment of suicide. And so, although suicide is a fault that God punishes, since he alone can punish even after death, it is not a crime before men, because the punishment, instead of falling on the guilty man himself, falls on his family. If anyone objects that such a punishment may still hold back a man who has resolved to kill himself, I answer that a man who calmly gives up the good of life, who so hates existence here below that he prefers an unhappy eternity to it, must be quite unmoved by the less effective and more distant thought of his children or his relatives.⁸

Chapter 33: Smuggling

Smuggling is a real crime, one that injures the sovereign and the nation; but its punishment ought not to carry infamy, because in public opinion committing it brings no disgrace. Whoever imposes infamous punishments on crimes that men do not think infamous weakens the sense of infamy for those that are. Anyone who sees the same penalty, death for instance, laid down for the man who kills a pheasant and for the man who murders another man or forges an important document will make no distinction between these crimes. In this way moral feelings are destroyed: the work of many centuries and much blood, the slowest and hardest things to bring to birth in the human mind, feelings that were thought to need the help of the most sublime motives, and a great apparatus of solemn formalities, before they could be born at all.

This crime is born of the law itself. As the duty rises, the profit always rises, and with it the temptation to smuggle; and the ease of smuggling grows with the length of border to be guarded and as the bulk of the goods shrinks. The penalty of forfeiting both the contraband and whatever goods travel with it is perfectly just, but it will be the more effective the smaller the duty, because men take risks only in proportion to the profit that success would bring.

But why does this crime bring no infamy on the man who commits it, when it is a theft from the prince and so from the nation itself? I answer that offenses men believe cannot be done to them do not touch them closely enough to rouse public indignation against those who commit them. Smuggling is such an offense. Men, on whom distant consequences make the faintest impression, do not see the harm that smuggling can do them; indeed they often enjoy its present advantages. They see only the harm done to the prince. They have no such interest, then, in withholding their good opinion from the smuggler as they have against the man who commits a private theft, or forges a signature, or does any of the other harms that can befall them. It is an evident principle that every feeling being cares only about the evils it knows.

But is such a crime to go unpunished in a man who has no goods to lose? No. There are kinds of smuggling that so affect the nature of taxation, so essential and so difficult a part of good legislation, that the crime deserves a considerable punishment, even imprisonment, even servitude: but imprisonment and servitude suited to the nature of the crime itself. The imprisonment of a tobacco smuggler, for example, ought not to be shared with the assassin or the thief, and his labors, limited to work and service for the very royal monopoly he tried to cheat, will be the most fitting kind of punishment.

Chapter 34: On Debtors

Good faith in contracts and the security of commerce oblige the lawmaker to give creditors a hold on the persons of bankrupt debtors. But I think it important to distinguish the fraudulent bankrupt from the innocent one. The first ought to be punished with the same penalty assigned to counterfeiters of coin, since to falsify a piece of stamped metal, which is a pledge of the obligations of citizens, is no greater crime than to falsify the obligations themselves. But the innocent bankrupt, the man who after a rigorous examination has proved before his judges that he was stripped of his property by other men's malice, or other men's misfortune, or by turns of events that no human prudence could avoid: for what barbarous reason is he to be thrown into prison, deprived of the one sad good he has left, his bare liberty, to taste the anguish of the guilty, and, in the despair of honesty oppressed, perhaps to repent of the very innocence in which he lived peacefully under the protection of those laws? Laws it was not in his power to avoid offending; laws dictated by the powerful out of greed and endured by the weak out of that hope which flickers in most human hearts and makes us believe that misfortunes are for other people and good fortune for ourselves. Men left to their most immediate feelings love cruel laws, even though, since they are subject to those same laws, it would be in each one's interest that they be mild, because the fear of being injured is greater than the desire to injure. To come back to the innocent bankrupt, I say this. Let his obligation be inextinguishable until it is paid in full; let him not be allowed to escape it without the consent of the parties concerned, or to carry his industry off to live under other laws; let him even be compelled, under penalties, to employ that industry in putting himself back in a position to pay his creditors in proportion as he prospers. Granting all that, what legitimate pretext, the security of commerce, say, or the sacred right of property, can justify depriving him of liberty? It is useless except in one case: to make the hardships of slavery drag out the secrets of a supposedly innocent bankrupt, a very rare case once a rigorous examination is assumed. I believe it to be a maxim of legislation that the weight of a political inconvenience varies directly as the public harm and inversely as the improbability of its occurring. Fraud could be distinguished from gross fault, gross fault from slight fault, and slight fault from complete innocence. To fraud would be assigned the penalties for forgery; to gross fault, lesser penalties, but with loss of liberty; to complete innocence, the free choice of means to get back on its feet; from slight fault that freedom would be taken away and left to the creditors. But the distinctions between gross and slight must be fixed by the blind and impartial law, not by the dangerous and arbitrary prudence of judges. Fixing limits is as necessary in politics as in mathematics, in measuring the public good as in measuring magnitudes.

How easily the provident lawmaker could prevent a great many culpable bankruptcies and relieve the misfortunes of the innocent and industrious! A public, open registry of all contracts, with every citizen free to consult its well-ordered records; a public bank, formed from taxes wisely levied on prosperous trade and intended to come to the help, with suitable sums, of any unfortunate and blameless member of that trade: these would have no real drawbacks and could produce countless advantages. But the easy, simple, great laws, which wait only for the lawmaker's nod to spread plenty and strength through the heart of the nation, laws that would heap immortal hymns of gratitude on him from generation to generation, are the least known or the least wanted. A restless, petty spirit, the timid prudence of the present moment, a wary stiffness toward anything new, take possession of the feelings of those who arrange the crowded actions of little mortals.

Chapter 35: Sanctuaries

Two questions are left for me to examine: first, whether sanctuaries are just; and second, whether an agreement among nations to hand criminals over to one another is useful or not. Within the borders of a country there ought to be no place independent of the laws. Their force must follow every citizen as the shadow follows the body. Impunity and sanctuary differ only by more and less; and since the impression a punishment makes lies more in the certainty of meeting it than in its force, sanctuaries invite crime more than punishments discourage it. To multiply sanctuaries is to create so many little sovereignties, because where no laws command, new laws can form, opposed to the common ones, and with them a spirit opposed to that of the whole body of society. Every history shows that great revolutions, in states and in men's opinions, have come out of sanctuaries. But whether it is useful for nations to hand criminals over to one another, I should not dare to decide, until laws better suited to the needs of humanity, milder punishments, and the end of all dependence on caprice and opinion make oppressed innocence and hated virtue safe; until universal reason, which more and more unites the interests of the throne and of its subjects, confines tyranny altogether to the vast plains of Asia. And yet the conviction that there is not a hand's breadth of earth anywhere that forgives real crimes would be a most effective means of preventing them.⁹

Chapter 36: On Bounties

The other question is whether it is useful to put a price on the head of a man known to be guilty, and, by arming every citizen's hand, to make an executioner of him. Either the guilty man is outside the borders or inside them. In the first case the sovereign is urging his citizens to commit a crime and exposing them to the scaffold; he is doing an injury and usurping authority in another's dominions, and so authorizing other nations to do the same to him. In the second case he is showing his own weakness. Whoever has the strength to defend himself does not go about buying it. Besides, such an edict overturns all the ideas of morality and virtue, which vanish from the human mind at the slightest breath of wind. Now the laws invite treachery, now they punish it. With one hand the lawmaker tightens the bonds of family, kinship and friendship, and with the other he rewards whoever snaps and shatters them. Always contradicting himself, he now invites men's suspicious minds to trust, now scatters mistrust in every heart. Instead of preventing one crime, he gives birth to a hundred. These are the expedients of weak nations, whose laws are nothing but emergency repairs to a ruinous building that is crumbling on every side. As enlightenment grows in a nation, good faith and mutual confidence become necessary, and tend more and more to merge with true policy. Tricks, cabals, dark and roundabout ways are mostly foreseen, and the alertness of all blunts the alertness of each. Even the ages of ignorance, in which public morality bent men to obey private morality, serve the enlightened ages as instruction and experience. But laws that reward treachery and stir up a hidden war by spreading mutual suspicion among citizens stand against this so necessary union of morality and politics, to which men would owe their happiness, nations their peace, and the world some longer interval of quiet and rest from the evils that walk abroad in it.

Chapter 37: Attempts, Accomplices and Immunity

Because the laws do not punish intention, it does not follow that a crime which begins with some act showing the will to carry it out deserves no punishment, though it deserves less than the crime actually carried out. The importance of preventing an attempt justifies a punishment; but since there may be an interval between the attempt and the deed, reserving the greater punishment for the completed crime may leave room for repentance. The same holds, though for a different reason, when there are several accomplices in a crime and not all of them are its immediate perpetrators. When several men join in a risk, the greater it is, the more they try to make it equal for all; so it will be harder to find one willing to be the man who does the deed, if he runs a greater risk than the other accomplices. The only exception would be the case where a reward had been fixed for the man who does it: then, since he has compensation for the greater risk, the punishment ought to be equal. These reflections will seem too metaphysical to anyone who does not consider how very useful it is that the laws should give the partners in a crime as few grounds for agreement as possible.

Some courts offer immunity to an accomplice in a serious crime who will reveal his companions. Such an expedient has its disadvantages and its advantages. The disadvantages are that the nation authorizes treachery, which is detestable even among villains; and crimes of courage are less fatal to a nation than crimes of cowardice, because courage is not common, and needs only a beneficent, guiding force to make it work for the public good, while cowardice is more common and contagious, and keeps closing in on itself. Besides, the court shows its own uncertainty, and the weakness of a law that begs help from the man who breaks it. The advantages are that it prevents important crimes, crimes that frighten the people because their effects are plain and their authors hidden; and it helps to show that a man who breaks faith with the laws, that is, with the public, is likely to break faith with private persons too. It would seem to me that a general law promising immunity to the accomplice who reveals any crime would be preferable to a special declaration in a particular case. It would prevent such partnerships through each accomplice's fear that he would be the one left exposed, and the court would not embolden villains by letting them see their help asked for in a particular case. Such a law, however, ought to join to the immunity the banishment of the informer... But in vain I torment myself to stifle the remorse I feel at authorizing the sacred laws, the monument of public trust, the foundation of human morality, to stoop to treachery and deceit. And what an example to the nation it would be if the promised immunity were then broken, and the man who had answered the laws' invitation were dragged to execution by learned quibbles, in defiance of the public faith! Such examples are not rare among nations, and so they are not rare, those men who have no other idea of a nation than of a complicated machine whose levers the cleverest and most powerful work as they please: cold and unmoved by everything that delights tender and lofty souls, they rouse the dearest feelings and the most violent passions with imperturbable shrewdness the moment they see them useful to their ends, playing on men's minds as musicians play on their instruments.

Chapter 38: Leading Questions and Depositions

Our laws forbid what are called leading questions in a trial: those, as the doctors of law put it, that ask about the species when they ought to ask about the genus, in the circumstances of a crime; that is, questions so directly connected with the crime that they suggest to the accused an immediate answer. Questions, according to the criminal lawyers, ought to wind around the fact in a spiral, so to speak, and never go at it in a straight line. The reasons for this method are either not to suggest to the accused an answer that would shelter him from the charge, or perhaps that it seems against nature itself for an accused man to accuse himself directly. Whichever of the two reasons it is, the contradiction is remarkable in laws that keep this custom and at the same time authorize torture; for what question is more leading than pain? The first reason applies to torture, because pain will suggest to the strong man a stubborn silence, so that he may exchange the greater punishment for the lesser, and to the weak man it will suggest confession, so that he may free himself from the present torment, which for the moment weighs more with him than pain to come. The second reason plainly applies too, for if a specific question makes an accused man confess against the law of nature, agony will make him do so far more easily. But men are governed more by differences of names than by differences of things.

Among the other abuses of grammar, which have had no small influence on human affairs, one is notable: the rule that makes the deposition of a man already condemned null and void. He is civilly dead, the Aristotelian jurists solemnly declare, and a dead man is capable of no act. Many victims have been sacrificed to keep up this empty metaphor, and it has quite often been seriously debated whether truth ought to give way to the formulas of the court. Provided the depositions of a condemned man do not go so far as to stop the course of justice, why should not a suitable space of time be allowed, even after sentence, both to the extreme misery of the condemned and to the interests of truth, so that if he brings forward new facts that change the nature of the case, he may clear himself or another by a new trial? Formalities and ceremonies are necessary in the administration of justice: because they leave nothing to the discretion of the man who administers it; because they give the people the idea of a judgment that is not hasty and self-interested but steady and regular; and because on men, who are imitators and slaves of habit, sensations make a stronger impression than reasoning. But the law can never fix them, without fatal danger, in such a way that they harm the truth, which, being either too simple or too complex, needs some outward pomp to win over the ignorant people.

Finally, a man who stubbornly refuses under examination to answer the questions put to him deserves a punishment fixed by the laws, and one of the heaviest they impose, so that men may not cheat in this way the need for the example they owe the public. This punishment is not necessary when it is beyond doubt that this accused man has committed this crime, so that questioning is useless, in the same way that a confession is useless when other proofs establish his guilt. This last case is the most common, because experience shows that in most trials the accused deny everything.

Chapter 39: A Particular Kind of Crime

Anyone who reads this work will notice that I have left out a kind of crime that has covered Europe with human blood, and raised those dreadful pyres where living human bodies served as fuel for the flames, when it was a merry spectacle and a pleasing harmony to the blind multitude to hear the dull, confused groans of the wretched coming out of whirlwinds of black smoke, the smoke of human limbs, amid the crackling of charred bones and the frying of still-quivering entrails. But reasonable men will see that the place, the age and the subject do not allow me to examine the nature of such a crime. It would take too long, and lie outside my subject, to prove how a perfect uniformity of thought must be necessary in a state, against the example of many nations; how opinions that differ from one another only by certain very subtle and obscure distinctions, far beyond human capacity, can nonetheless overturn the public good when one of them is not authorized in preference to the others; and how the nature of opinions is so constituted that, while some grow clearer by fermenting and fighting together in contest, the true ones floating to the top and the false sinking into oblivion, others, too insecure in their bare constancy, have to be clothed with authority and force. It would take too long to prove how, however odious the empire of force over human minds may seem, an empire whose only conquests are dissimulation and then degradation; however contrary it may seem to the spirit of gentleness and brotherhood commanded by reason and by the authority we most revere, it is nonetheless necessary and indispensable. All this must be believed evidently proved, and in keeping with the true interests of mankind, if there is someone with recognized authority who exercises it. I speak only of the crimes that arise from human nature and from the social contract, and not of sins, whose punishments, even temporal ones, must be governed by other principles than those of a limited philosophy.¹⁰

Chapter 40: False Ideas of Utility

One source of errors and injustices is the false ideas of utility that lawmakers form. A false idea of utility is one that puts particular inconveniences ahead of the general inconvenience; that commands feelings instead of rousing them; that says to logic, "Obey." A false idea of utility is one that sacrifices a thousand real advantages to an inconvenience either imaginary or of little consequence: that would take fire away from men because it burns, and water because it drowns; that repairs evils only by destroying. The laws that forbid carrying arms are laws of this kind. They disarm only those who are neither inclined nor determined to commit crimes. For how can men who have the nerve to violate the most sacred laws of humanity and the most important in the code be expected to respect the lesser and purely arbitrary ones? Laws so easily broken, and with such impunity; laws whose exact enforcement would take away personal liberty, dearest of things to man and to the enlightened lawmaker, and subject the innocent to all the harassment that is due to the guilty? Such laws make the attacked worse off and the attackers better off; they do not reduce murders but increase them, because one attacks the unarmed with more confidence than the armed. These are not laws that prevent crimes; they are laws that are afraid of crimes, born of the tumultuous impression of a few particular incidents, not of reasoned reflection on the drawbacks and advantages of a general decree. A false idea of utility is one that would give a multitude of feeling beings the symmetry and order that brute, lifeless matter submits to; that neglects present motives, which alone act on the multitude steadily and strongly, in order to give force to distant ones, whose impression is very brief and weak unless a power of imagination, uncommon in mankind, makes up for the distance of the object by magnifying it. Finally, a false idea of utility is one that, sacrificing the thing to the name, separates the public good from the good of every individual.

There is this difference between the state of society and the state of nature: the savage does harm to others only as far as he needs to do himself good, but social man is sometimes moved by bad laws to injure others without doing himself any good. The despot casts fear and dejection into the minds of his slaves, but the fear rebounds and comes back with greater force to torment his own mind. The more solitary and private fear is, the less dangerous it is to the man who makes it the instrument of his happiness; but the more public it is, and the greater the multitude of men it stirs, the more likely it is that someone will be found, reckless, or desperate, or bold and shrewd, who will make men serve his own ends by waking in them feelings more welcome and the more seductive as the risk of the enterprise is spread over more people, and as the value the wretched set on their own existence shrinks in proportion to the misery they suffer. This is why offenses breed new offenses: hatred is a feeling so much more lasting than love because it draws its strength from the very repetition of acts that weakens love.

Chapter 41: How to Prevent Crimes

It is better to prevent crimes than to punish them. This is the chief end of all good legislation, which is the art of leading men to the greatest possible happiness, or the least possible unhappiness, to speak in terms of every reckoning of the goods and evils of life. But the means employed so far are mostly false and contrary to the end proposed. It is not possible to reduce the turbulent activity of men to a geometrical order without irregularity and confusion. Just as the constant and very simple laws of nature do not keep the planets from disturbing one another in their motions, so, among the infinite and wholly opposed attractions of pleasure and pain, human laws cannot keep disturbance and disorder from arising. And yet this is the fantasy of limited men whenever they have power in their hands. To forbid a multitude of indifferent actions is not to prevent the crimes that may arise from them; it is to create new ones, to define at pleasure the virtue and vice that are preached to us as eternal and unchanging. What would we be reduced to if we had to be forbidden everything that might lead us into crime? Man would have to be deprived of the use of his senses. For every motive that drives men to commit a real crime, there are a thousand that drive them to commit those indifferent actions which bad laws call crimes; and if the likelihood of crimes is proportionate to the number of motives, to widen the sphere of crimes is to increase the likelihood of their being committed. Most laws are nothing but privileges, that is, a tribute paid by all for the convenience of a few.

Do you want to prevent crimes? See to it that the laws are clear and simple, and that the whole force of the nation is gathered to defend them and no part of it is used to destroy them. See to it that the laws favor classes of men less than men themselves. See to it that men fear the laws, and fear nothing but the laws. Fear of the laws is wholesome; but the fear of man for man is fatal and fertile in crimes. Enslaved men are more sensual, more debauched and more cruel than free men. Free men think about the sciences and about the interests of the nation; they see great objects and imitate them. Slaves, content with the present day, look in the din of debauchery for a distraction from the nothingness they see themselves reduced to; and being used to uncertainty about the outcome of everything, they find the outcome of their crimes uncertain too, to the advantage of the passion that drives them. If uncertainty in the laws falls on a nation made indolent by its climate, it keeps up and increases its indolence and stupor. If it falls on a nation fond of pleasure but active, it scatters that activity into an infinite number of little cabals and intrigues, which spread mistrust in every heart and make treachery and dissimulation the foundation of prudence. If it falls on a brave and strong nation, the uncertainty is removed in the end, but only after many swings from liberty to slavery and from slavery back to liberty.

Chapter 42: On Knowledge

Do you want to prevent crimes? See to it that enlightenment goes hand in hand with liberty. The evils that arise from knowledge vary inversely as its diffusion, and the goods directly. A bold impostor, who is never an ordinary man, is worshipped by an ignorant people and hissed by an enlightened one. Knowledge, by making it easier to compare things and multiplying the points of view from which they are seen, sets many feelings against one another, and they modify one another the more easily as each man foresees the same views and the same resistance in others. In the face of enlightenment spread generously through a nation, slanderous ignorance falls silent and authority unarmed with reasons trembles, while the vigorous force of the laws stands unshaken; for there is no enlightened man who does not love the public, clear and useful compacts of common safety, when he compares the scrap of useless liberty he has given up with the sum of all the liberties given up by other men, who without the laws might have conspired against him. Anyone with a feeling heart who casts his eye over a code of well-made laws, and finds that he has lost nothing but the fatal liberty to do harm to others, will be moved to bless the throne and the one who sits on it.

It is not true that the sciences have always been harmful to mankind, and when they were, the harm was unavoidable. The multiplication of the human race over the face of the earth brought in war, the crudest arts, and the first laws, which were temporary compacts born with necessity and dying with it. This was men's first philosophy, and its few elements were sound, because their indolence and lack of cunning kept them from error. But needs kept multiplying as men multiplied. Stronger and more lasting impressions were needed, then, to keep them from falling back again and again into the first unsociable state, which was growing ever more ruinous. Those first errors that peopled the earth with false divinities, and created an invisible universe to govern ours, did humanity a great service, then (a great political service, I mean). They were benefactors of mankind who dared to take men by surprise and drag docile ignorance to the altars. By presenting men with objects placed beyond the senses, which fled before them just as they thought they had reached them, and which were never despised because they were never well known, they gathered and concentrated divided passions on a single object that held them powerfully. These were the first stages of every nation that formed out of savage peoples; this was the age in which the great societies were formed, and such was their necessary and perhaps their only bond. I do not speak of that people chosen by God, for whom the most extraordinary miracles and the most signal graces took the place of human policy. But as it is the nature of error to subdivide itself without end, the sciences born of it made of men a fanatical multitude of the blind, jostling and stumbling over one another in a closed labyrinth, so that some feeling and philosophical souls came even to regret the old savage state. This is the first age in which knowledge, or rather opinion, is harmful.

The second is the hard and terrible passage from error to truth, from a darkness that does not know itself to light. The immense collision between errors useful to the powerful few and truths useful to the weak many, and the passions that crowd together and ferment on such an occasion, do infinite harm to wretched humanity. Anyone who reflects on history, which after certain intervals repeats itself in its principal ages, will find more than once a whole generation sacrificed to the happiness of those that follow it, in the mournful but necessary passage from the darkness of ignorance to the light of philosophy, and from tyranny to the liberty that follows from it. But when minds have grown calm, and the fire that purged the nation of the evils oppressing it has burned out, and truth, whose progress is slow at first and then quickens, sits as a companion on the thrones of monarchs and has worship and an altar in the parliaments of republics, who will ever be able to maintain that the light that illuminates the multitude is more harmful than the darkness, and that the true and simple relations of things, once men know them well, are fatal to them?

Blind ignorance is less fatal than middling, muddled knowledge, since the latter adds to the evils of ignorance those of the error that is unavoidable for a man whose sight stops short of the boundaries of truth. If that is so, then the enlightened man is the most precious gift a sovereign can make to the nation and to himself, when he makes him the keeper and guardian of the sacred laws. Used to seeing the truth and not fearing it; free of most of the needs of reputation, which are never satisfied and which put the virtue of most men to the test; accustomed to contemplate humanity from the highest points of view: before such a man his own nation becomes a family of brothers, and the distance between the great and the people seems to him the smaller, the greater the mass of humanity he has before his eyes. Philosophers acquire needs and interests unknown to ordinary men, above all the need not to belie in the light of public life the principles they preached in obscurity, and they acquire the habit of loving truth for its own sake. A choice of such men makes the happiness of a nation, but only a passing happiness, unless good laws so increase their number as to lessen the probability, always great, of a bad choice.

Chapter 43: Magistrates

Another means of preventing crimes is to give the body that carries out the laws an interest in keeping them rather than in corrupting them. The more members it has, the less danger there is of its usurping the laws, because venality is harder among members who keep watch on one another, and they have the less interest in increasing their own authority, the smaller the share of it that would fall to each, above all when it is weighed against the danger of the enterprise. If the sovereign, with display and pomp, with stern edicts, and by refusing to hear the complaints, just and unjust alike, of those who think themselves oppressed, accustoms his subjects to fear the magistrates more than the laws, the magistrates will profit more from that fear than his own safety and the public's will gain by it.

Chapter 44: Rewards

Another means of preventing crimes is to reward virtue. On this subject I notice a universal silence in the laws of every nation today. If the prizes that academies offer to the discoverers of useful truths have multiplied both knowledge and good books, why should not prizes given out by the sovereign's beneficent hand multiply virtuous actions as well? The coin of honor is always inexhaustible and fruitful in the hands of a wise distributor.

Chapter 45: Education

Finally, the surest but hardest way to prevent crimes is to perfect education. It is a subject too vast, and one that goes beyond the limits I have set myself; a subject, I even dare to say, too intimately bound up with the nature of government for it not to remain a barren field until the remotest ages of public happiness, cultivated only here and there by a few wise men. A great man, who enlightens the humanity that persecutes him, has shown in detail what the chief maxims are of an education truly useful to men: that it should consist less in a barren multitude of subjects than in choosing them well and treating them exactly; that it should put the originals in place of the copies, in the moral and the physical phenomena alike that chance or design sets before the fresh minds of the young; that it should lead them to virtue by the easy road of feeling, and turn them from evil by the unfailing road of necessity and of the harm that follows, and not by the uncertain road of command, which wins only a feigned and passing obedience.¹¹

Chapter 46: On Pardons

As punishments become milder, clemency and pardon become less necessary. Happy the nation in which they would be harmful! Clemency, then, the virtue that has sometimes made up, in a sovereign, for every other duty of the throne, ought to be excluded from a perfect legislation, in which punishments are mild and the method of judging regular and swift. This truth will seem harsh to anyone living amid the disorder of the criminal system, where pardons and acts of grace are needed in proportion to the absurdity of the laws and the atrocity of the sentences. Pardon is the finest prerogative of the throne, the most desirable attribute of sovereignty; and it is the silent disapproval that the beneficent dispensers of the public happiness express for a code which, with all its imperfections, has on its side the prejudice of centuries, the voluminous and imposing train of countless commentators, the weighty apparatus of endless formalities, and the support of the most ingratiating and least feared of the half-learned. But let it be considered that clemency is the virtue of the lawmaker and not of the executor of the laws; that it ought to shine in the code, not in particular judgments; that to let men see that crimes can be pardoned, and that punishment is not their necessary consequence, is to feed the flattering hope of impunity, and to make them believe that, since pardons can be given, the sentences that are not pardoned are acts of violence by force rather than emanations of justice. And what are we to say when the prince grants pardons, that is, gives away the public safety to a private person, and by a private act of unenlightened kindness makes a public decree of impunity? Let the laws, then, be inexorable, and inexorable those who carry them out in particular cases; but let the lawmaker be gentle, indulgent and humane. Let him be a wise architect, and raise his building on the foundation of self-love, and let the general interest be the sum of the interests of each; then he will not be forced, with partial laws and hasty remedies, to keep separating the public good from the good of individuals, and to raise the idol of public safety on fear and mistrust. Let him be a deep and feeling philosopher, and leave men, his brothers, to enjoy in peace the small portion of happiness that the immense system established by the First Cause, by Him who is, allows them to enjoy in this corner of the universe.

Chapter 47: Conclusion

I conclude with one reflection: the severity of punishments ought to be relative to the state of the nation itself. Stronger and more vivid impressions are needed on the hardened minds of a people just emerged from the savage state. It takes a thunderbolt to fell a fierce lion that turns on the musket shot. But as minds grow gentler in the social state, sensibility grows, and as it grows the force of punishment must diminish, if the relation between the object and the sensation is to stay constant.

From all that we have seen so far a general theorem can be drawn, a very useful one, though little in keeping with custom, the usual lawgiver of nations. It is this: in order that no punishment be an act of violence by one or by many against a private citizen, it must be essentially public, prompt, necessary, the least possible in the given circumstances, proportionate to the crime, and dictated by the laws.