The laws only can determine the punishment of crimes; and
the authority of making penal laws can only reside with the legislator, who
represents the whole society united by the social compact. No magistrate then,
(as he is one of the society,) can, with justice, inflict on any other member
of the same society punishment that is not ordained by the laws. But as a
punishment, increased beyond the degree fixed by the law, is the just
punishment with the addition of another, it follows that no magistrate, even
under a pretence of zeal, or the public good, should increase the punishment
already determined by the laws.
If every individual be bound to society, society is
equally bound to him, by a contract which from its nature equally binds both
parties. This obligation, which descends from the throne to the cottage, and
equally binds the highest and lowest of mankind, signifies nothing more than
that it is the interest of all, that conventions, which are useful to the
greatest number, should be punctually observed. The violation of this compact
by any individual is an introduction to anarchy.
The sovereign, who represents the society itself, can only
make general laws to bind the members; but it belongs not to him to judge
whether any individual has violated the social compact, or incurred the
punishment in consequence. For in this case there are two parties, one
represented by the sovereign, who insists upon the violation of the contract,
and the other is the person accused who denies it. It is necessary then that
there should be a third person to decide this contest; that is to say, a judge,
or magistrate, from whose determination there should be no appeal; and this
determination should consist of a simple affirmation or negation of fact.
If it can only be proved, that the severity of
punishments, though not immediately contrary to the public good, or to the end
for which they were intended, viz. to prevent crimes, be useless, then such
severity would be contrary to those beneficent virtues, which are the
consequence of enlightened reason, which instructs the sovereign to wish rather
to govern men in a state of freedom and happiness than of slavery. It would
also be contrary to justice and the social compact.