of honour disappear, or are confounded with others. In the first case, reputation becomes useless from the despotism of the laws; and in the second, the despotism of one man, annulling all civil existence, reduces the rest to a precarious and temporary personality. Honour then is one of the fundamental principles of those monarchies, which are a limited despotism, and in these, like revolutions in despotic states, it is a momentary return to a state of nature, and original equality.
Chapter 10: Of Duelling
From the necessity of the esteem of others, have arisen single combats, and they have been established by the anarchy of the laws. They are thought to have been unknown to the ancients; perhaps because they did not assemble in their temples, in their theaters, or with their friends, suspiciously armed with swords; and, perhaps, because single combats were a common spectacle, exhibited to the people by gladiators, who were slaves, and whom freemen disdained to imitate.
In vain have the laws endeavored to abolish this custom, by punishing the offenders with death. A man of honour, deprived of the esteem of others, foresees that he must be reduced, either to a solitary existence, insupportable to a social creature, or become the object of perpetual insult; consideration sufficient to overcome the fear of death.
What is the reason, that duels are not frequent among the common people, as amongst the great? Not only because they do not wear swords, but because, to men of that class, reputation is of less importance, than it is to those of a higher rank, who commonly regard each other with distrust and jealousy.
It may not be without its use to repeat here, what has been mentioned by other writers; viz. that the best method of preventing this crime is to punish the aggressor, that is, the person who gave occasion to the duel, and to acquit him, who, without any fault on his side, is obliged to defend that, which is not sufficiently secured to him by the laws.
Chapter 11: Of Crimes, Which Disturb Public Tranquillity
Another class of crimes is that which disturbs the public tranquility and the quiet of the citizens; such as tumults and riots in the public streets, which are intended for commerce and the passage of the inhabitants; the discourses of fanatics, which rouse the passions of the curious multitude, and gain strength from the number of their hearers, who, though deaf to calm and solid reasoning, are always affected by obscure and mysterious enthusiasm.
The illumination of the streets, during the night, at the public expense; guards stationed in different quarters of the city; the plain and moral discourses of religion, reserved for the silence and tranquility of churches, and protected by authority, and harangues in support of the interest of public, delivered only at the general meetings of the nation, in parliament, or where the sovereign resides; are all means to prevent the dangerous effects of the misguided passions of the people. These should be the principal objects of the vigilance of a magistrate, and which the French call Police; but if this magistrate should act in an arbitrary manner, and not in conformity to the code of laws, which ought to be in the hands of every member of the community, he opens a door to tyranny, which always surrounds the confines of political liberty.
I do not know of any exception to this general axiom, that Every member of society should know when he is criminal, and when innocent. If censors, and, in general, arbitrary magistrates, be necessary in any government, it proceeds from some fault in the constitution. The uncertainty of crimes hath sacrificed more victims to secret tyranny, than have ever suffered by public and solemn cruelty.
What are, in general, the proper punishments for crimes? Is the punishment of death really useful, or necessary for the safety or good order of society? Are tortures and torments consistent with justice, or do they answer the end proposed by the laws? Which is the best method of preventing crimes? Are the same punishments equally useful at all times? What influence have they on manners? These problems should be solved with that geometrical precision, which the mist of sophistry, the seduction of eloquence, and the timidity of doubt, are unable to resist.
If I have no other merit than that of having first presented to my country, with a greater degree of evidence, what other nations have written, and are beginning to practice, I shall account myself fortunate; but if, by supposing the rights of mankind and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or of ignorance, equally fatal; his blessing and tears of transport, will be sufficient consolation to me for the contempt of all mankind.
Chapter 12: Of the Intent of Punishments
From the foregoing considerations it is evident, that the intent of punishments, is not to torment a sensible being, nor to undo a crime already committed. Is it possible that torments and useless cruelty, the instruments of furious fanaticism, or the impotency of tyrants, can be authorized by a political body? which, so far from being influenced by passion, should be the cool moderator of the passions of individuals. Can the groans of a tortured wretch recall the time past, or reverse the crime he has committed?
The end of punishment, therefore, is no other, than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence. Such punishments, therefore, and such a mode of inflicting them, ought to be chosen, as will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.
Chapter 13: Of the Credibility of Witnesses
To determine exactly the credibility of a witness, and the force of evidence, is an important point in every good legislation. Every man of common sense, that is, every one whose ideas have some connection with each other, and whose sensations are conformable to those of other men, may be a witness; but the credibility of his evidence will be in proportion as he is interested in declaring or concealing the truth. Hence it appears, how frivolous is the reasoning of those, who reject the testimony of women on account of their weakness; how puerile it is, not to admit the evidence of those who are under sentence of death, because they are dead in law; and how irrational to exclude persons branded with infamy: for in all these cases they ought to be credited, when they have no interest in giving false testimony.
The credibility of a witness, then, should only diminish in proportion to the hatred, friendship, or connections, subsisting between him and the delinquent. One witness is not sufficient; for whilst the accused denies what the other affirms, truth remains suspended, and the right that every one has to be believed innocent, turns the balance in his favor.
The credibility of a witness is the less, as the atrociousness of the crime is greater, from the improbability of its having been committed; as in cases of witchcraft, and acts of wanton cruelty. The writers on penal laws have adopted a contrary principle, viz. that the credibility of a witness is greater, as the crime is more atrocious. Behold their inhuman maxim, dictated by most cruel of imbecility. In atrocissimis, leviores conjecturae sufficiunt & licet judici jura transgredi. Let us translate this sentence, that mankind may see one of the many unreasonable principles to which they are ignorantly subject. In the most atrocious crimes the slightest conjectures are sufficient, and the judge is allowed to exceed the limits of the law. The absurd practices of legislators, are often the effect of timidity, which is a principal source of the contradictions of mankind. The legislators, (or rather lawyers, whose opinions, when alive, were interested and venal, but which after their death become of decisive authority, and are the sovereign arbiters of the lives and fortunes of men) terrified by the condemnation of some innocent person, have burthened the law with pompous and useless formalities, the scrupulous observance of which will place anarchical impunity on the throne of justice; at other times, perplexed by atrocious crimes of difficult proof, they imagined themselves under a necessity of superseding the very formalities established by themselves; and thus, at one time, with despotic impatience,
