XII.

that in each conftitution are apt to affift or check Book the principle of liberty, which each government is Chap. 2. capable of receiving.

PH

СНАР. II.

Of the Liberty of the Subject.

Hilofophical liberty confifts in the exercise of our will, or at least (if we must speak agreeably to all fyftems) in the opinion we have of exercifing our will. Political liberty confifts in fecurity, or at least in the opinion we have of fecurity.

This fecurity is never more dangerously attacked than in public or private accufations. It is therefore on the goodness of criminal laws that the liberty of the subject principally depends.

book 2.

See Dio

Criminal laws did not receive their full perfection all at once. Even in places where liberty has been most fought after, it has not been always found. Ariftotle (P) informs us that at Cumæ, the parents (P) Politics of the accufer might be witneffes. So imperfectarwas the law under the kings of Rome, that Servius quinius Tullius pronounced fentence againft the children of Prifcus. Ancus Martius, who were charged with having nyfius Haaffaffinated the king his father-in-law (1). Under licarn. the first kings of France, Clotarius made a law (), (*) As earthat no body should be condemned without being ly as the heard; which fhews that a contrary cuftom had year 560. (f) Ariftot. prevailed in fome particular cafe or among fome bar- Polit. barous people. It was Charondas that first establish-book 2, ed penalties against falfe witneffes (1). When the When the chap 12. He gave fubject has no fence to fecure his innocence, he has his laws none for his liberty.

$ 3

book 4.

at Thurium in the 84th O

Thelympiad.

Воок

XII. Chap. 3,

& 4.

The knowledge already acquired in fome countries, or that may be hereafter attained in others, in regard to the fureft rules that can be obferved in criminal judgments, is more interesting to mankind than any other thing in the universe.

Liberty can be founded only on the practice of this knowledge: and supposing a state to have the beft laws imaginable in this refpect, a person tried under that state, and condemned to be hanged the next day, would have much more liberty, than a bafhaw enjoys in Turkey.

T

The fame Subject continued.

HOSE laws which condemn a man to death on the depofition of a fingle witness, are fatal to liberty. In right reason there should be two, because a witness who affirms, and the accused who denies, make an equal balance, and a third muft incline the fcale.

The Greeks () and Romans (*) required one (i) See Ariftid. voice more to condemn: but our French laws inOrat. in fift upon two. The Greeks pretend that their cuftom had been established by the Gods; but this (k) Dionyf. more justly may be faid of ours.

Miner

vam.

Halicarn.

on the

judgment of Coriolanus,

book 7.

CHA P. IV.

That Liberty is favoured by the nature and pro

L'

portion of Punishments.

IBERTY is in its highest perfection, when criminal laws derive each punishment from the particular nature of the crime. Then there are

no

XII.

Chap. 4.

no arbitrary decifions; the punishment does not flow Book from the capriciousness of the legislator, but from the very nature of the thing; and man ufes no violence to man.

There are four forts of crimes. Those of the first species are prejudicial to religion, the second to morals, the third to the public tranquillity, and the fourth to the fecurity of the fubject. The punishments inflicted for these crimes ought to proceed from the nature of each of these species.

In the clafs of crimes that concern religion, I rank only those which attack it directly, fuch as all fimple facrileges. For as to crimes that difturb the exercise of it, they are of the nature of those which prejudice the tranquillity or fecurity of the subject, and ought to be referred to those claffes.

In order to derive the punishment of fimple facrileges from the nature of the thing t, it fhould confist in depriving people of the advantages conferred by religion, in expelling them out of the temples, in a temporary or perpetual exclufion from the fociety of the faithful, in fhunning their prefence, in execrations, deteftations, and conjurations.

·

In things that prejudice the tranquillity or fecurity of the ftate, fecret actions are fubject to human jurisdiction. But in those which offend the deity, where there is no public action, there can be no criminal matter; the whole paffes betwixt man and God, who knows the measure and time of his vengeance. Now if magiftrates, confounding things, fhould inquire alfo into hidden facrileges, this inqui

St. Lewis made fuch fevere laws against those who swore, that the pope thought himself obliged to admonish him for it. This prince moderated his zeal, and foftened his laws (*).

S 4

(*) See his fition Ordinances.

XII.

Chap. 4.

Book quifition would be directed to a kind of action that does not at all require it; the liberty of the subject would be fubverted by arming the zeal of timorous as well as of prefumptuous consciences against him.

() Father Bougerel.

The mischief arifes from a notion fome people have of revenging the cause of the Deity. But we must honor the Deity, and leave him to avenge his own cause. In effect, were we to be directed by fuch a notion, where would be the end of punishments? If human laws are to avenge the caufe of an infinite being, they will be directed by his infinity, and not by the ignorance and caprice of man.

An hiftorian (t) of Provence relates a fact, which furnishes us with an excellent defcription of the confequences that may arife in weak capacities from this notion of avenging the Deity's cause. A Jew was accused of having blafphemed against the bleffed Virgin, and upon conviction, was condemned to be flead alive. A ftrange fpectacle was then feen: gentlemen masked, with knives in their hands, afcended the fcaffold, and drove away the executioner, in order to be the avengers themselves of the honour of the bleffed Virgin. I do not chufe to anticipate here the reflections of the reader.

The fecond clafs is of thofe crimes which are prejudicial to morals. Such are the violation of public or private continency, that is, of the policy directing the manner in which the pleasure annexed to the union of bodies is to be enjoyed. The punishment of thofe crimes ought to be alfo derived from the nature of the thing; the privation of fuch advantages as fociety has attached to the purity of

morals,

XII.

Chap. 4.

morals, fines, shame, neceffity of concealment, pub- Book lic infamy, expulfion from home and fociety, and in fine all fuch punishments as belong to a corrective jurifdiction, are fufficient to reprefs the temerity of the two fexes. In effect, these things are lefs founded on malice, than on oblivion and self contempt.

We speak here of none but crimes that relate merely to morals, for as to those that are also prejudicial to the public fecurity, fuch as rapes and ravishments, they belong to the fourth fpecies.

The crimes of the third class are those that dif turb the public tranquillity. The punishments ought therefore to be derived from the nature of the thing, and to be relative to this tranquillity; fuch as imprisonment, exile, corrections, and other-like chaftisements, proper for reclaiming turbulent fpirits, and reducing them to the established order.

I confine thofe crimes that injure the public tranquillity to things that imply a simple tranfgreffion against the civil administration: for as to those which by disturbing the public tranquillity attack at the fame time the fecurity of the fubject, they ought to be ranked in the fourth class.

The punishments inflicted upon the latter crimes are what are properly diftinguished by that name. It is a kind of retaliation, by which the fociety refufes fecurity to a member, that either has actually, or intentionally deprived another of his fecurity. This punishment is derived from the nature of the thing, founded on reason, and drawn from the very fource of good and evil. A man deferves death when he has violated the fecurity fo far as to deprive, or to attempt to deprive another man of his life. This punishment of death is the remedy, as it

were