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 exempt from the compacts that bind the rest of mankind.
The multiplication of mankind, though slow, being too
great, for the means which the earth, in its natural state, offered to satisfy
necessities which every day became more numerous, obliged men to separate
again, and form new societies. These naturally opposed the first, and a state
of war was transferred from individuals to nations.
Thus it was necessity that forced men to give up apart of
their liberty. It is certain, then, that every individual would choose to put
into the public stock the smallest portion possible, as much only as was
sufficient to engage others to defend it. The aggregate of these, the smallest
portions possible, forms the right of punishing; all that extends beyond this,
is abuse, not justice.
Observe that by justice I understand nothing more
than that bond which is necessary to keep the interest of individuals united,
without which men would return to their original state of barbarity. All
punishments which exceed the necessity of preserving this bond are in their
nature unjust. We should be cautious how we associate with the word
justice an idea of any thing real, such as a physical power, or a being
that actually exists. I do not, by any means, speak of the justice of God,
which is of another kind, and refers immediately to rewards and punishments in
a life to come.
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