Of Crimes and Punishments
Of Crimes of difficult Proof.
With the forgoing principles in view, it will appear
astonishing, that reason hardly ever presided at the formation of the laws of
nations that the weakest. and most equivocal evidence, and even conjectures,
have been thought sufficient proof for crimes the most atrocious, (and
therefore most improbable) the most obscure and chimerical; as if it were the
interest of the laws and the judge not to enquire into the truth, but to prove
the crime; as if there were not a greater risk of condemning an innocent
person, when the probability of his guilt is less.
The generality of men want that vigour of mind and
resolution which are as necessary for great crimes as for great virtues, and
which at the same time produce both the one and the other in those nations.
which are supported by the activity of their government, and a passion for the
public good. For in those which subsist by their greatness or power, or by the
goodness of their laws, the passions, being in a weaker degree, seem calculated
rather to maintain than to improve the form of government. This naturally leads
us to an important conclusion, viz. that great crimes do not always produce the
destruction of a nation.
There are some crimes which, though frequent in society,
are of difficult proof, a circumstance admitted as equal to the probability of
the innocence of the accused. But as the frequency of these crimes is not owing
to their impunity so much as to other causes, the danger of their passing
unpunished is of less importance, and therefore the time of examination and
prescription may be equally diminished. These principles are different from
those commonly received; for it is in crimes which are proved with the greatest
difficulty, such as adultery and sodomy, that presumptions, half proofs,
&c. are admitted; as if a man could be half innocent, and half guilty, that
is, half punishable and half absolvable. It is in these cases that torture
should exercise its cruel power on the person of the accused, the witnesses,
and even his whole family, as, with unfeeling indifference, some civilians have
taught, who pretend to dictate laws to nations.
Adultery is a crime which, politically considered, owes
its existence to two causes, viz. pernicious laws, and the powerful attraction
between the sexes. This attraction is similar in many circumstances to gravity,
the spring of motion in the universe. Like this, it is diminished by distance;
one regulates the motions of the body, the other of the soul. But they differ
in one respect; the force of gravity decreases in proportion to the obstacles
that oppose it, the other gathers strength and vigour as the obstacles
If I were speaking to nations guided only by the laws of
nature, I would tell them, that there is a considerable difference between
adultery and all other crimes. Adultery proceeds from an abuse of that
necessity which is constant and universal in human nature; a necessity anterior
to the formation of society, and indeed the founder of society itself; whereas
all other crimes, tend to the destruction of society, and arise from momentary
passions, and not from a natural necessity. It is the opinion of those who have
studied history and mankind, that this necessity is constantly in the same
degree in the same climate. If this be true, useless, or rather pernicious,
must all laws and customs be which tend to diminish the sum total of the
effects of this passion. Such laws would only burden one part of society, with
the additional necessities of the other; but, on the contrary, wise are the
laws which, following the natural course of the river, divide the stream into a
number of equal branches, preventing thus both sterility and inundation.
Conjugal fidelity is always greater in proportion as
marriages are more numerous and less difficult. But, when the interest or pride
of families, or paternal authority, not the inclination of the parties, unite
the sexes, gallantry soon breaks the slender ties, in spite of common
moralists, who exclaim against the effect, whilst they pardon the cause. But
these reflections are useless to those who, living in the true religion, act
from sublimer motives, which correct the eternal laws of nature.
The act of adultery is a crime so instantaneous, so
mysterious, and so concealed by the veil which the laws themselves have woven,
a veil necessary indeed, but so transparent as to heighten rather than conceal
the charms of the object, the opportunities are so frequent, and the danger of
discovery so easily avoided, that it were much easier for the laws to prevent
this crime, than to punish it when committed.
To every crime which, from its nature, must frequently
remain unpunished, the punishment is an incentive. Such is the nature of the
human mind, that difficulties, if not unsurmountable, nor too great for our
natural indolence, embellish the object, and spur us on to the pursuit. They
are so many barriers that confine the imagination to the object, and oblige us
to consider it in every point of view. In this agitation, the mind naturally
inclines and fixes itself to the most agreeable part, studiously avoiding every
idea that might create disgust.
The crime of sodomy, so severely punished by the laws, and
for the proof of which are employed tortures, which often triumph over
innocence itself, has its source much less in the passions of man in a free and
independent state than in society and a slave. It is much less the effect of a
satiety in pleasures, than of that education which in order to make men useful
to others, begins by making them useless to themselves. In those public
seminaries, where ardent youth are carefully excluded from all commerce with
the other sex, as the vigour of nature blooms, it is consumed in a manner not
only useless to mankind, but which accelerates the approach of old age.
The murder of bastard children is, in like manner, the
effect of a cruel dilemma, in which a woman finds herself, who has been seduced
through weakness, or overcome by force. The alternative is, either her own
infamy, or the death of a being who is incapable of feeling the loss of life.
How can she avoid preferring the last to the inevitable misery of herself and
her unhappy infant! The best method of preventing this crime would be
effectually to protect the weak woman from that tyranny which exaggerates all
vices that cannot be concealed under the cloak of virtue.
I do not pretend to lessen that just abhorrence which
these crimes deserve, but to discover the sources from whence they spring; and
I think I may draw the following conclusion: That the punishment of a crime
cannot be just, that is necessary, if the laws have not endeavoured to prevent
that crime by the best means which times and circumstances would allow.
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