Chapter 5: Of the Obscurity of Laws
If the power of interpreting laws be an evil, obscurity in them must be another, as the former is the consequence of the latter. This evil will be still greater, if the laws be written in a language unknown to the people; who, being ignorant of the consequences of their own actions, become necessarily dependent on a few, who are interpreters of the laws, which, instead of being public, and general, are thus rendered private, and particular. What must we think of mankind, when we reflect, that such is the established custom of the greatest part of our polished, and enlightened Europe? Crimes will be less frequent, in proportion as the code of laws is more universally read, and understood: for there is no doubt, but that the eloquence of the passions is greatly assisted by ignorance, and uncertainty of punishments.
Hence it follows, that without written laws, no society will ever acquire a fixed form of government, in which the power is vested in the whole, and not in any part of the society; and in which, the laws are not to be altered, but by the will of the whole, nor corrupted by the force of private interest. Experience and reason shows us, that the probability of human traditions diminishes in proportion as they are distant from their sources. How then can laws resist the inevitable force of time, if there be not a lasting monument of the social compact?
Hence, we see the use of printing, which alone makes the public, and not a few individuals, the guardians and defenders of the laws. It is this art, which, by diffusing literature, has gradually dissipated the gloomy spirit of cabal and intrigue. To this art it is owing, that the atrocious crimes of our ancestors, who were alternately slaves, and tyrants, are become less frequent. Those who are acquainted with the history of the two or three last centuries, may observe, how, from the lap of luxury and effeminacy, have sprung the most tender virtues, humanity, benevolence, and toleration of human errors. They may contemplate the effects of, what was so improperly called, ancient simplicity, and good faith; humanity groaning under implacable superstition; the avarice and ambition of a few, staining, with human blood, the thrones and palaces of kings; secret treasons, and public massacres; every noble a tyrant over the people; and the ministers of the gospel of Christ, bathing their hands in blood. We may talk as we please of the corruption and degeneracy of the present age, but happily we see no such horrid examples of cruelty and oppression.
Chapter 6: Of the Proportion between Crimes and Punishments
It is not only the common interest of mankind, that crimes should not be committed, but that crimes of every kind should be less frequent, in proportion to the evil they produce to society. Therefore, the means made use of by the legislature to prevent crimes, should be more powerful, in proportion as they are destructive of the public safety and happiness, and as the inducements to commit them are stronger. Therefore there ought to be a fixed proportion between crimes and punishments.
It is impossible to prevent entirely all the disorders which the passions of mankind cause in society. These disorders increase in proportion to the number of people, and the opposition of private interests. If we consult history, we shall find them increasing, in every state, with the extent of dominion. In political arithmetic, it is necessary to substitute a calculation of probabilities, to mathematical exactness. That force, which continually impels us to our own private interest, like gravity, acts incessantly, unless it meets with an obstacle to oppose it. The effects of this force are the confused series of human actions. Punishments, which I would call political obstacles, prevent the fatal effects of private interest, without destroying the impelling cause, which is that sensibility inseparable from man. The legislator acts, in this case, like a skillful architect, who endeavors to counteract the force of gravity, by combining the circumstances which may contribute to the strength of his edifice.
The necessity of uniting in society being granted, together with the conventions, which the opposite interests of individuals must necessarily require, a scale of crimes may be formed, of which the first degree should consist of those, which immediately tend to the dissolution of society, and the last, of the smallest possible injustice done to a private member of that society. Between these extremes will be comprehended, all actions contrary to the public good, which are called criminal, and which descend by insensible degrees, decreasing from the highest to the lowest. If mathematical calculation could be applied to the obscure and infinite combinations of human actions, there might be a corresponding scale of punishments, descending from the greatest to the least; but it will be sufficient that the wise legislator mark the principal divisions, without disturbing the order, left to crimes of the first degree, be assigned punishments of the last. If there were an exact and universal scale of crimes and punishments, we should there have a common measure of the degree of liberty and slavery, humanity and cruelty of different nations.
Any action, which is not comprehended in the above mentioned scale, will not be called a crime, or punished as such, except by those who have an interest in the denomination. The uncertainty of the extreme points of this scale, has produced a system of morality which contradicts the laws; a multitude of laws that contradict each other; and many, which expose the best men to the severest punishments, rendering the ideas of vice and virtue vague and fluctuating, and even their existence doubtful. Hence that fatal lethargy of political bodies, which terminates in their destruction.
Whoever reads, with a philosophic eye, the history of nations, and their laws, will generally find, that the ideas of virtue and vice, of a good or a bad citizen, change with the revolution of ages; not in proportion to the alteration of circumstances, and consequently conformable to the common good; but in proportion to the passions and error by which the different law-givers were successively influenced. He will frequently observe, that the passions and vices of one age, are the foundation of the morality of the following; that violent passion, the offspring of fanaticism and enthusiasm, being weakened by time, which reduces all the phenomena of the natural and moral world so an equality, become, by degrees, the prudence of the age, and an useful instrument in the hands of the powerful, or artful politician. Hence the uncertainty of our notions of honour and virtue; an uncertainty which will ever remain, because they change with the revolutions of time, and names survive the things they originally signified; they change with the boundaries of states, which are often the same both in physical and moral geography.
Pleasure and pain are the only springs of action in beings endowed with sensibility. Even amongst the motives which incite men to acts of religion, the invisible legislator has ordained rewards and punishments. From a partial distribution of these, will arise that contradiction, so little observed, because so common; I mean, that of punishing by the laws, the crimes which the laws have occasioned. If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter men from committing the greater, as often as it is attended with greater advantage.
Chapter 7: Of Estimating the Degree of Crimes
The foregoing reflections authorize me to assert, that crimes are only to be measured by the injury done to society. They err, therefore, who imagine, that a crime is greater or less, according to the intention of the person by whom it is committed; for this will depend on the actual impression of objects on the senses, and on the previous disposition of the mind; both which will vary in different persons, and even in the same person at different times, according to the succession of ideas, passions, and circumstances. Upon that system, it would be necessary to form not only a particular code for every individual, but a new penal law for every crime. Men, often with the best intentions, do the greatest injury to society, and with the worst do it the most essential services.
Others have estimated crimes rather by the dignity of the person offended, than by their consequences to society. If this were the true standard, the smallest irreverence to the divine Being ought to be punished with infinitely more severity, than the assassination of a monarch.
In short, others have imagined, that the greatness
