Of Crimes and Punishments
Of the Interpretation of Laws.
Judges, in criminal cases, have no right to interpret the
penal laws, because they are not legislators. They have not received the laws
from our ancestors as a domestic tradition, or as the will of a testator, which
his heirs and executors are to obey; but they receive them from a society
actually existing, or from the sovereign, its representative. Even the
authority of the laws is not founded on any pretended obligation, or ancient
convention; which must be null, as it cannot bind those who did not exist at
the time of its institution; and unjust, as it would reduce men in the ages
following, to a herd of brutes, without any power of judging or acting. The
laws receive their force and authority from an oath of fidelity, either tacit
or expressed, which living subjects have sworn to their sovereign, in order to
restrain the intestine fermentation of the private interest of individuals.
From hence springs their true and natural authority. Who then is their lawful
interpreter? The sovereign, that is, the representative of society, and not the
judge, whose office is only to examine if a man have or have not committed an
action contrary to the laws.
In every criminal cause the judge should reason
syllogistically. The major should be the general law; the minor,
the conformity of the action, or its opposition to the laws; the
conclusion, liberty, or punishment. If the judge be obliged by the
imperfection of the laws, or chooses to make any other or more syllogisms than
this, it will be an introduction to uncertainty.
There is nothing more dangerous than the common axiom,
the spirit of the laws is to be considered. To adopt it is to give way
to the torrent of opinions. This may seem a paradox to vulgar minds, which are
more strongly affected by the smallest disorder before their eyes, than by the
most pernicious though remote consequences produced by one false principle
adopted by a nation.
Our knowledge is in proportion to the number of our ideas.
The more complex these are, the greater is the variety of positions in which
they may be considered. Every man hath his own particular point of view, and,
at different times, sees the same objects in very different lights. The spirit
of the laws will then be the result of the good or bad logic of the judge; and
this will depend on his good or bad digestion, on the violence of his passions,
on the rank or condition. of the accused, or on his connections with the judge,
and on all those little circumstances which change the appearance of objects in
the fluctuating mind of man. Hence we see the fate of a delinquent changed many
times in passing through the different courts of judicature, and his life and
liberty victims to the false ideas or ill humour of the judge, who mistakes the
vague result of his own confused reasoning for the just interpretation of the
laws. We see the same crimes punished in a different manner at different times
in the same tribunals, the consequence of not having consulted the constant and
invariable voice of the laws, but the erring instability of arbitrary
The disorders that may arise from a rigorous observance of
the letter of penal laws are not to be compared with those produced by the
interpretation of them. The first are temporary inconveniences which will
oblige the legislature to correct the letter of the law, the want of
preciseness and uncertainty of which has occasioned these disorders ; and this
will put a stop to the fatal liberty of explaining, the source of arbitrary and
venal declamations. When the code of laws is once fixed, it should be observed
in the literal sense, and nothing more is left to the judge than to determine
whether an action be or be not conformable to the written law. When the rule of
right, which ought to direct the actions of the philosopher, as well as the
ignorant, is a matter of controversy, not of fact, the people are slaves to the
magistrates. The despotism of this multitude of tyrants is more insupportable
the less the distance is between the oppressor and the oppressed, more fatal
than that of one, for the tyranny of many is not to be shaken off but by having
recourse to that of one alone. It is more cruel, as it meets with more
opposition, and the cruelty of a tyrant is not in proportion to his strength,
but to the obstacles that oppose him.
These are the means by which security of person and
property is best obtained, which is just, as it is the purpose of uniting in
society; and it is useful as each person may calculate exactly the
inconveniences attending every crime. By these means, subjects will acquire a
spirit of independence and liberty, however it may appear to those who dare to
call the weakness of submitting blindly to their capricious and interested
opinions by the sacred name of virtue.
These principles will displease those who have made it a
rule with themselves to transmit to their inferiors the tyranny they suffer
from their superiors. I should have every thing to fear if tyrants were to read
my book; but tyrants never read.
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