Of the Division of Crimes.
We have proved then, that crimes are to be estimated by
the injury done to society. This is one of those palpable truths which
though evident to the meanest capacity, yet by a combination of circumstances,
are only known to a few thinking men in every nation, and in every age. But
opinions, worthy only of the despotism of Asia, and passions, armed with power
and authority, have, generally by insensible, and sometimes by violent
impressions on the timid credulity of men, effaced those simple ideas which
perhaps constituted the first philosophy of an infant society. Happily the
philosophy of the present enlightened age seems again to conduct us to the same
principles, and with that degree of certainty which is obtained by a rational
examination and repeated experience.
A scrupulous adherence to order would require, that we
should now examine and distinguish the different species of crimes and the
modes of punishment; but they are so variable in their nature, from the
different circumstances of ages and countries, that the detail would be
tiresome and endless. It will be sufficient for my purpose to point out the
most general principles, and the most common and dangerous errors, in order to
undeceive as well those who, from a mistaken zeal for liberty, would introduce
anarchy and confusion, as those who pretend to reduce society in general to the
regularity of a covenant.
Some crimes are immediately destructive of society, or its
representative; others attack the private security of the life, property, or
honour of individuals; and a third class consists of such actions as are
contrary to the laws which relate to the general good of the community.
The first, which are of the highest degree, as they are
most destructive to society, are called crimes of leze-majesty (High
Treason). Tyranny and ignorance, which have confounded the clearest terms and
ideas, have given this appellation to crimes of a different nature, and
consequently have established the same punishment for each; and, on this
occasion, as on a thousand others, men have been sacrificed victims to a word.
Every crime, even of the most private nature, injures society; but every crime
does not threaten its immediate destruction. Moral as well as physical actions
have their sphere of activity differently circumscribed, like all the movements
of nature, by time and space; it is therefore a sophistical interpretation, the
common philosophy of slaves, that would confound the limits of things
established by eternal truth.
To these succeed crimes which are destructive of the
security of individuals. This security being the principal end of all society,
and to which every citizen hath an undoubted right, it becomes indispensably
necessary, that to these crimes the greatest of punishments should be assigned.
The opinion, that every member of society has a right to
do any thing that is not contrary to the laws, without fearing any other
inconveniences than those which are the natural consequences of the action
itself, is a political dogma, which should be defended by the laws, inculcated
by the magistrates, and believed by the people; a sacred dogma, without which
there can be no lawful society, a just recompense for our sacrifice of that
universal liberty of action common to all sensible beings, and only limited by
our natural powers. By this principle our minds become free, active, and
vigorous; by this alone we are inspired with that virtue which knows no fear,
so different from that pliant prudence, worthy of those only who can bear a
Attempts, therefore, against the life and liberty of a
citizen are crimes of the highest nature. Under this head we comprehend not
only assassinations and robberies committed by the populace, but by grandees
and magistrates, whose example acts with more force, and at a greater distance
destroying the ideas of justice and duty among the subjects, and substituting
that of the right of the strongest, equally dangerous to those who exercise it
and to those who suffer.
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