CHA P. II. Of the Liberty of the Subje. PHILOSOPHICAL liberty confifts in the free exercife of the will; or at leaft, if we muft fpeak agreeable to all systems, in an opinion that we have the free exercise of our will. Political liberty confifts in fecurity, or at leaft in the opinion that we enjoy fecurity. This fecurity is never more dangerously attacked than in public or private accufations. It is therefore on the goodhefs of criminal laws that the liberty of the fubject principally depends. Criminal laws did not receive their full perfection all at once. Even in places where liberty has been moft fought after, it has not been always found. Ariftotle informs us, that at Cumæ the parents of the accufer might be wit neffes. So imperfect was the law under the kings of Rome, that Servius Tullius pronounced fentence against the children of Ancus Marcius, who were charged with having affaffinated the king his fatherinlaw.+ Under the firft kings of France, Clotarius made a law, that nobody fhould be condemned without being heard; which fhews that a contrary custom had prevailed in fome particular cafe, or among fome barbarous people. It was Charondas that first established penalties against falfe witneffes.§ When the fubje&t has no fence to fecure his innocence, he has none for his liberty. The knowledge already acquired in fome countries, or that may be hereafter attained in others, in regard to the fureft rules that can be observed in criminal judgments, is more interefting to mankind than any other thing in the universe. Liberty can only be founded on the practice of this knowledge And fuppofing a ftate to have the best laws imaginable *Politics, book 2. + Tarquinius Prifcus. See Dionyfius Halicarn, book 4. As early as the year 560. Ariftot. Polit. book 2. chap, 12. He gave his laws at Thurium in the 84th Olympiad. imaginable in this refpect, a perfon tried under that state, and condemned to be hanged the next day, would have much more liberty, than a bashaw enjoys in Turkey, CHA P. III. The fame Subject continued. THOSE laws which condemn a man to death on the depofition of a fingle witness, are fatal to liberty. In right reafon there fhould be two, because a witnefs who affirms, and the accufed who denies, make an equal balance, and a third must incline the scale, : The Greeks and Romanst required one voice more to condemn But our French law infifts upon two. The Greeks pretended that their custom was established by the gods; but this more juftly may be faid of ours. CHA P. IV. That Liberty is favored by the Nature and Proportion of Punish ments. LIBERTY is in its highest perfection, when criminal laws derive each punishment from the particular nature of the crime. There are then no arbitrary decifions; the punishment does not flow from the capriciousness of the legiflator, but from the very nature of the thing; and man ufes no violence to man. There are four forts of crimes. Those of the firft fpecies 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 thefe 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, such as all fimple facrileges. See Ariftid. orat, in Minervam. + Dionyf. Halicarn, op the judgment of Coriolanus, book 7, For For, as to crimes that disturb the exercise of it, they are of the nature of those which prejudice the tranquillity or fecurity of the fubject, and ought to be referred to those claffes. In order to derive the punishment of fimple facrileges from the nature of the thing, it should confift 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 conjura tions. In things that prejudice the tranquillity or fecurity of the state, fecret actions are subject to human jurifdiction. 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 inquifition would be directed to a kind of action that does not at all require it; the liberty of the fubject would be fubverted by arming the zeal of timorous, as well as of prefumptuous confciences against him. The mischief arifes from a notion which fome people have entertained of revenging the caufe of the Deity. But we muft 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 cause of an infinite Being, they. will be directed by his infinity, and not by the ignorance and caprice of man. An hiftoriant of Provence relates a fact, which furnifhes us with an excellent description of the confequences, that may arise in weak capacities from this notion of avenging the Deity's caufe. A Jew was accused of having blafphemed against the bleffed Virgin; and, upon conviction, was condemned to be flayed alive. A ftrange fpectacle was then feen: Gentlemen masked, with knives in their hands, afcended the scaffold, and drove away the executioner, in order to be the avengers themfelves of the honor St. Lewis made fuch fevere laws against those who fwore, that the Pope thought himself obliged to admonifh him for it. This prince moderated his zeal, and foftened his laws. See his ordinances. + Father Bougeral. honor of the bleffed Virgin-I do not here choose to anticipate the reflections of the reader. The fecond clafs confifts of thofe crimes which are prejudicial to morals. Such is 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-fines, fhame, neceffity of concealment, public 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 wickednefs, than on the forgetting and defpifing ourselves. We speak here of none but crimes that relate merely to morals; for as to thofe that are 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 disturb 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 chastisements, 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 fingle 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 clafs. The punishments inflicted upon the latter crimes are fuch as are properly diftinguished by that name. They are a kind of retaliation, by which the fociety refuses fecurity to a member, who has actually or intentionally deprived another of his fecurity. These punishments are derived from the nature of the thing, founded on reason, and drawn from the very fource of good and evil. A man deserves death when he has violated the fecurity fo far as to deprive, or attempt to deprive another man of his life. This punishment of death is the remedy; as it were, of of a fick fociety. When there is a breach of fecurity in refpect to property, there may be some reasons for inflicting a capital punishment: But it would be perhaps much better, and more natural, that crimes committed against the fecurity of property fhould be punished with the lofs of property, and this ought indeed to be the cafe, if mens fortunes were common or equal. But as thofe who have no property are generally the readieft to attack the proper ty of others, it has been found neceffary, inftead of a pecuniary, to fubftitute a corporal punishment. All that I have here advanced, is founded in nature, and extremely favorable to the liberty of the subject. Of certain Accufanions that require particular Moderation and Prudence. IT is an important maxim, that we ought to be very circumfpect in the profecution of magic and herefy. The accufation of these two crimes may be vaftly injurious to liberty, and productive of an infinite number of oppreffions, if the legiflator knows not how to fet bounds to it. For as it does not aim directly at a perfon's actions, but at his character, it grows dangerous in proportion to the ignorance of the people; and then a man is always in danger, because the most unexceptionable conduct, the pureft morals, and the conftant practice of every duty in life, are not a fufficient fecurity against the fufpicion of his being guilty of crimes like these. Under Manuel Commenus, the proteftator* was accused of having confpired against the emperor, and of having employed for that purpose fome fecrets that render men invifible. It is mentioned in the life of this emperor,t that Aaron was detected as he was poring over a book of Solomon's, the reading of which was fufficient to conjure up whole legions of devils. Now, by fuppofing a power in magic to arm all hell, people look upon a man whom they call a magician as the fitteft perfon in the world to trouble * Nicetas, life of Manuel Commenus, book + Ibid. |