but every paragraph in the whole book. But in this, I conceive, he hath assumed a right which belongs not to any translator, and which cannot be justified. His disposition may appear more systematical, but certainly the author hath as undoubted a right to the arrangement of his own ideas, as to the ideas themselves; and therefore, to destroy that arrangement, is to pervert his meaning, if he had any meaning in his plan, the contrary to which can hardly be supposed.
With regard to the commentary, attributed to Mons. de Voltaire, my only authority for supposing it his, is the voice of the public, which indeed is the only authority we have for most of his works. Let those who are acquainted with the peculiarity of his manner judge for themselves.
The facts above-mentioned would preclude all apology for this translation, if any apology were necessary, for translating into our language, a work which, from the nature of the subject, must be interesting to every nation; but must be particularly acceptable to the English, from the eloquent and forcible manner in which the author pleads the cause of liberty, benevolence and humanity. It may however be objected, that a treatise of this kind is useless in England, where, from the excellence of our laws and government, no examples of cruelty or oppression are to be found. But it must also be allowed, that much is still wanting to perfect our system of legislation: the confinement of debtors, the filth and horror of our prisons, the cruelty of jailers, and the extortion of the petty officers of justice, to all which may be added the melancholy reflection, that the number of criminals put to death in England is much greater than in any other part of Europe, are considerations which will sufficiently answer every objection. These are my only reasons for endeavoring to diffuse the knowledge of the useful truths contained in this little essay; and I say, with my author, that if I can be instrumental in rescuing a single victim from the hands of tyranny or ignorance, his transports will sufficiently console me for the contempt of all mankind.
Introduction of the Author
In every human society, there is an effort continually tending to confer on one part the height of power and happiness, and to reduce the other to the extreme of weakness and misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally, and equally. But men generally abandon the care of their most important concerns to the uncertain prudence and discretion of those, whose interest it is to reject the best, and wisest institutions; and it is not till they have been led into a thousand mistakes in matters, the most essential to their lives and liberties, and are weary of suffering, that they can be induced to apply a remedy to the evils, with which they are oppressed. It is then they begin to conceive, and acknowledge the most palpable truths, which, from their very simplicity, commonly escape vulgar minds incapable of analyzing objects, accustomed to receive impressions without distinction, and to be determined rather by the opinions of others, than by the result of their own examination.
If we look into history we shall find, that laws, which are, or ought to be, conventions between men in a state of freedom, have been, for the most part, the work of the passions of a few, or the consequences of a fortuitous, or temporary necessity; not dictated by a cool examiner of human nature, who knew how to collect in one point, the actions of a multitude, and had this only end in view, the greatest happiness of the greatest number. Happy are those few nations, who have not waited, till the slow succession of human vicissitudes, should, from the extremity of evil, produce a transition to good; but, by prudent laws, have facilitated the progress from one to the other! And how great are the obligations due from mankind to that philosopher, who from the obscurity of his closet, had the courage to scatter amongst the multitude, the seeds of useful truths, so long unfruitful!
The art of printing has diffused the knowledge of those philosophical truths, by which the relations between sovereigns and their subjects, and between nations, are discovered. By this knowledge, commerce is animated, and there has sprung up a spirit of emulation, and industry, worthy of rational beings. These are the produce of this enlightened age; but the cruelty of punishments, and the irregularity of proceeding in criminal cases, so principal a part of the legislation, and so much neglected throughout Europe, has hardly ever been called in question. Errors, accumulated through many centuries, have never yet been exposed by ascending to general principles; nor has the force of acknowledged truths been ever opposed to the unbounded licentiousness of ill-directed power, which has continually produced so many authorized examples of the most unfeeling barbarity. Surely, the groans of the weak, sacrificed to the cruel ignorance, and indolence of the powerful; the barbarous torments lavished, and multiplied with useless severity, for crimes either not proved, or in their nature impossible; the filth and horrors of a prison, increased by the most cruel tormentor of the miserable, uncertainty, ought to have roused the attention of those whose business is to direct the opinions of mankind.
The immortal Montesquieu has but slightly touched on this subject. Truth, which is eternally the same, has obliged me to follow the steps of that great man: but the studious part of mankind, for whom I write, will easily distinguish the superstructure from the foundation. I shall be happy, if with him, I can obtain the secret thanks of the obscure, and peaceful disciples of reason, and philosophy; and excite that tender emotion, in which sensible minds sympathize with him, who pleads the cause of humanity.
Chapter 1: Of the Origin of Punishment
Laws are the conditions, under which men, naturally independent, united themselves in society. Weary of living in a continual state of war, and of enjoying a liberty which became of little value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy the rest in peace and security. The sum of all these portions of the liberty of each individual constituted the sovereignty of a nation; and was deposited in the hands of the sovereign, as the lawful administrator. But it was not sufficient only to establish this deposit; it was also necessary to defend it from the usurpation of each individual, who will always endeavor to take away from the mass, not only his own portion, but to encroach on that of others. Some motives, therefore, that strike the senses, were necessary to prevent the despotism of each individual from plunging society into its former chaos. Such motives are the punishments established against the infractor of the laws. I say, that motives of this kind are necessary; because, experience shows, that the multitude adopt no established principle of conduct; and because, society is prevented from approaching to that dissolution, (to which, as well as all other parts of the physical, and moral world, it naturally tends) only by motives, that are the immediate objects of sense, and which being continually presented to the mind, are sufficient to counterbalance the effects of the passions of the individual, which oppose the general good. Neither the power of eloquence, nor the sublimest truths, are sufficient to restrain, for any length of time, those passions, which are excited by the lively impressions of present objects.
Chapter 2: Of the Right to Punish
Every punishment, which does not arise from absolute necessity, says the great Montesquieu, is tyrannical. A proposition which may be made more general, thus. Every act of authority of one man over another, for which there is not an absolute necessity, is tyrannical. It is upon this then, that the sovereign's right to punish crimes is founded; that is, upon the necessity of defending the public liberty, entrusted to his care, from the usurpation of individuals; and punishments are just in proportion, as the liberty, preserved by the sovereign, is sacred and valuable.
Let us consult the human heart, and there we shall find the foundation of the sovereign's right to punish; for no advantage in moral policy can be lasting, which is not founded on the indelible sentiments of the heart of man. Whatever law deviates from this principle will always meet with a resistance, which will destroy it in the end; for the smallest force, continually applied, will overcome the most violent motion communicated to bodies.
No man ever gave up his liberty, merely for the good of the public. Such a chimera exists only in romances. Every individual wishes, if possible, to be exempted from the compacts, that bind the rest of mankind.
