Painful and corporal punishments should never be applied to fanaticism; for, being founded on pride, it glories in persecution. Infamy and ridicule only should be employed against fanatics if the first, their pride will be overbalanced by the pride of the people; and we may judge of the power of the second, if we consider that even truth Is obliged to summon all her force when attacked by error armed with ridicule. Thus, by opposing one passion to another, and opinion to opinion, a wise legislator puts an end to the admiration of the populace occasioned by a false principle, the original absurdity of which is veiled by some well deduced consequences.
This is the method to avoid confounding the immutable relations of things,
or opposing nature, whose actions, not being limited by time, but operating
incessantly, overturn and destroy all those vain regulations which contradict
her laws. It is not only in the fine arts that the imitation of nature
is the fundamental principle; it is the same in sound policy, which is
no other than the art of uniting and directing to the same end the natural
and immutable sentiments of mankind.
It seems as if banishment should be the punishment of those who, being accused of an atrocious crime, are probably, but not certainly, guilty. For this purpose would be required a law the least arbitrary and the most precise possible; which should condemn to banishment those who have reduced the community to the fatal alternative either of fearing or punishing them unjustly, still, however, leaving them the sacred right of proving their innocence. The reasons ought to be stronger for banishing a citizen than a stranger, and for the first accusation than for one who hath been often accused.
Should the person who is excluded for ever from society be deprived of his property? This question may be considered in different lights. The confiscation of effects, added to banishment is a greater punishment than banishment alone; there ought then to be some cases, in which, according to the crime, either the whole fortune should be confiscated, or part only, or none at all. The whole should be forfeited, when the law which ordains banishment declares, at the same time, that all connections or relations between the society and the criminal are annihilated. In this case the citizen dies; the man only remains, and, with respect to a political body, the death of the citizen should have the same consequences with the death of the man. It seems to follow then, that in this case, the effects of the criminal should devolve to his lawful heirs. But it is not on account of this refinement that I disapprove of confiscations. If some have insisted, that they were a restraint to vengeance and the violence of particulars, they have not reflected, that, though punishments be productive of good, they are not, on that account, more just; to be just, they must be necessary. Even an useful injustice can never be allowed by a legislator, who means to guard against watchful tyranny, which, under the flattering pretext of momentary advantages, would establish permanent principles of destruction, and, to procure the ease of a few in a high station, would draw tears from thousands of the poor.
The law which ordains confiscations sets a price on the head of the
subject, with the guilty punishes the innocent, and, by reducing them to
indigence and despair, tempts them to become criminal. Can there be a more
melancholy spectacle than a whole family overwhelmed with infamy and misery
from the crime of their chief? a crime, which, if it had been possible,
they were restrained from preventing, by that submission which the laws
themselves have ordained.
In a republic of families, the children remain under the authority of the father as long as he lives, and are obliged to wait until his death for an existence dependent on the laws alone. Accustomed to kneel and tremble in their tender years, when their natural sentiments were less restrained by that caution, obtained by experience, which is called moderation, how should they resist those obstacles which vice always opposes to virtue in the languor and decline of age, when the despair of reaping the fruits is alone sufficient to damp the vigour of their resolutions?
In a republic, where every man is a citizen, family-subordination is not the effect of compulsion, but of contract; and the sons, disengaged from the natural dependence which the weakness of infancy and the necessity of education required, become free members of society, but remain subject to the head of the family for their own advantage, as in the great society.
In a republic of families, the young people, that is, the most numerous and most useful part of the nation, are at the discretion of their fathers: in a republic of men, they are attached to their parents by no other obligation than that sacred and inviolable one of mutual assistance, and of gratitude for the benefits they have received; a sentiment destroyed not so much by the wickedness of the human heart, as by a mistaken subjection prescribed by the laws.
These contradictions between the laws of families and the fundamental laws of a state are the source of many others between public and private morality, which produce a perpetual conflict in the mind. Domestic morality inspires submission and fear; the other courage and liberty. That instructs a man to confine his beneficence to a small number of persons, not of his own choice; this to extend it to all mankind. That commands a continual sacrifice of himself to a vain idol called the good of the family, which is often no real good to any one of those who compose it; this teaches him to consider his own advantage, without offending the laws, or excites him to sacrifice himself for the good of his country, by rewarding him beforehand with the fanaticism it inspires. Such contradictions are the reason that men neglect the pursuit of virtue, which they can hardly distinguish amidst the obscurity and confusion of natural and moral objects. How frequently are men, upon a retrospection of their actions, astonished to find themselves dishonest?
In proportion to the increase of society each member becomes a smaller part of the whole; and the republican spirit diminishes in the same proportion, if neglected by the laws. Political societies, like the human body, have their limits circumscribed, which they cannot exceed, without disturbing their economy. It seems as if the greatness of a state ought to be inversely as the sensibility and activity of the individuals; if, on the contrary, population and activity increase in the same proportion, the laws. will with difficulty prevent the crimes arising from the good they have produced. An overgrown republic can only be saved from despotism by subdividing it into a number of confederate republics. But how is this practicable? By a despotic dictator, who, with the courage of Sylla, has as much genius for building up as that Roman had for pulling down. If he be an ambitious man, his reward will be immortal glory? if a philosopher, the blessings of his fellow citizens will sufficiently console him for the loss of authority, though he should not be insensible to their ingratitude.
In proportion as the sentiments which unite us to the state grow weaker, those which attach us to the objects which more immediately surround us grow stronger; therefore, in the most despotic government, friendships are more durable, and domestic virtues (which are always of the lowest class) are the most common, or the only virtues, existing. Hence it appears how confined have been the views of the greatest number of legislators.It is remarkable, that many fatal acts of injustice have been authorised and approved, even by the wisest and most experienced men, in the freest republics. This has been owing to their having considered the state rather as a society of families than of men. Let us suppose a nation composed of an hundred thousand men, divided into twenty thousand families of five persons each, including the head or master of the family, its representative. If it be an association of families, there will be twenty thousand men, and eighty thousand slaves; or if of men, there will be an hundred thousand citizens, and not one slave. In the first case we behold a republic, and twenty thousand little monarchies, of which the heads are the sovereigns: in the second the spirit of liberty will not only breath in every public place of the city, and in the assemblies of the nation, but in private houses, where men find the greatest part of their happiness or misery. As laws and customs are always the effect of the habitual sentiments of the members of a republic, if the society be an association of the heads of families, the spirit of monarchy will gradually make its way into the republic itself, as its effects will only be restrained by the opposite interests of each, and not by an universal spirit of liberty and equality. The private spirit of family is a spirit of minuteness, and confined to little concerns. Public spirit, on the contrary, is influenced by general principles, and from facts deduces general rules of utility to the greatest number.
In a republic of families, the children remain under the authority of the father as long as he lives, and are obliged to wait until his death for an existence dependent on the laws alone. Accustomed to kneel and tremble in their tender years, when their natural sentiments were less restrained by that caution, obtained by experience, which is called moderation, how should they resist those obstacles which vice always opposes to virtue in the languor and decline of age, when the despair of reaping the fruits is alone sufficient to damp the vigour of their resolutions?
In a republic, where every man is a citizen, family-subordination is not the effect of compulsion, but of contract; and the sons, disengaged from the natural dependence which the weakness of infancy and the necessity of education required, become free members of society, but remain subject to the head of the family for their own advantage, as in the great society.
In a republic of families, the young people, that is, the most numerous and most useful part of the nation, are at the discretion of their fathers: in a republic of men, they are attached to their parents by no other obligation than that sacred and inviolable one of mutual assistance, and of gratitude for the benefits they have received; a sentiment destroyed not so much by the wickedness of the human heart, as by a mistaken subjection prescribed by the laws.
These contradictions between the laws of families and the fundamental laws of a state are the source of many others between public and private morality, which produce a perpetual conflict in the mind. Domestic morality inspires submission and fear; the other courage and liberty. That instructs a man to confine his beneficence to a small number of persons, not of his own choice; this to extend it to all mankind. That commands a continual sacrifice of himself to a vain idol called the good of the family, which is often no real good to any one of those who compose it; this teaches him to consider his own advantage, without offending the laws, or excites him to sacrifice himself for the good of his country, by rewarding him beforehand with the fanaticism it inspires. Such contradictions are the reason that men neglect the pursuit of virtue, which they can hardly distinguish amidst the obscurity and confusion of natural and moral objects. How frequently are men, upon a retrospection of their actions, astonished to find themselves dishonest?
In proportion to the increase of society each member becomes a smaller part of the whole; and the republican spirit diminishes in the same proportion, if neglected by the laws. Political societies, like the human body, have their limits circumscribed, which they cannot exceed, without disturbing their economy. It seems as if the greatness of a state ought to be inversely as the sensibility and activity of the individuals; if, on the contrary, population and activity increase in the same proportion, the laws. will with difficulty prevent the crimes arising from the good they have produced. An overgrown republic can only be saved from despotism by subdividing it into a number of confederate republics. But how is this practicable? By a despotic dictator, who, with the courage of Sylla, has as much genius for building up as that Roman had for pulling down. If he be an ambitious man, his reward will be immortal glory? if a philosopher, the blessings of his fellow citizens will sufficiently console him for the loss of authority, though he should not be insensible to their ingratitude.
In proportion as the sentiments which unite us to the state grow weaker,
those which attach us to the objects which more immediately surround us
grow stronger; therefore, in the most despotic government, friendships
are more durable, and domestic virtues (which are always of the lowest
class) are the most common, or the only virtues, existing. Hence it appears
how confined have been the views of the greatest number of legislators.
If punishments be very severe, men are naturally led to the perpetration of other crimes, to avoid the punishment due to the first. The countries and times most notorious for severity of punishments were always those in which the most bloody and inhuman actions and the most atrocious crimes were committed; for the hand of the legislator and the assassin were directed by the same spirit of ferocity, which on the throne dictated laws of iron to slaves and savages, and in private instigated the subject to sacrifice one tyrant to make room for another.
In proportion as punishments become more cruel, the minds of men, as a fluid rises to the same height with that which surrounds it, grow hardened and insensible; and the force of the passions still continuing, in the space of an hundred years the wheel terrifies no more than formerly the prison. That a punishment may produce the effect required, it is sufficient that the evil it occasions should exceed the good expected from the crime, including in the calculation the certainty of the punishment, and the privation of the expected advantage. All severity beyond this is superfluous, and therefore tyrannical.
Men regulate their conduct by the repeated impression of evils they know, and not by those with which they are unacquainted. Let us, for example, suppose two nations, in one of which the greatest punishment is perpetual slavery, and in the other the wheel: I say, that both will inspire the same degree of terror, and that their can be no reasons for increasing the punishments of the first, which are not equally valid for augmenting those of the second to more lasting and more ingenious modes of tormenting, and so on to the most exquisite refinements of a science too well known to tyrants.
There are yet two other consequences of cruel punishments, which counteract the purpose of their institution, which was, to prevent crimes. The first arises from the impossibility of establishing an exact proportion between the crime and punishment; for though ingenious cruelty hath greatly multiplied the variety of torments, yet the human frame can suffer only to a certain degree, beyond which it is impossible to proceed, be the enormity of the crime ever so great. The second consequence is impunity. Human nature is limited no less in evil than in good. Excessive barbarity can never be more than temporary, it being impossible that it should be supported by a permanent system of legislation; for if the laws be too cruel, they must be altered, or anarchy and impunity will succeed.
Is it possible without shuddering with horror, to read in history of the barbarous and useless torments that were cooly invented and executed by men who were called sages? Who does not tremble at the thoughts of thousands of wretches, whom their misery, either caused or tolerated by the laws, which favoured the few and outraged the many, had forced in despair to return to a state of nature, or accused of impossible crimes, the fabric of ignorance and superstition, or guilty only of having been faithful to their own principles; who, I say, can, without horror, think of their being torn to pieces, with slow and studied barbarity, by men endowed with the same passions and the same feelings? A delightful spectacle to a fanatic multitude!