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.

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 interpretation.

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.

Of the Obscurity of Laws.

If the power of interpreting laws be an evil, obscurity in them must be another, as the former is the consequence of the latter. This evil will be still greater if the laws be written in a language unknown to the people; who, being ignorant of the consequences of their own actions, become necessarily dependent on a few, who are interpreters of the laws, which, instead of being public and general, are thus rendered private and

particular. What must we think of mankind when we reflect, that such is the established custom of the greatest part of our polished and enlightened Europe? Crimes will be less frequent in proportion as the code of laws is more universally read and understood; for there is no doubt but that the eloquence of the passions is greatly assisted by the ignorance and uncertainty of punishments.

Hence it follows, that, without written laws, no society will ever acquire a fixed form of government, in which the power is vested in the whole, and not in any part of the society; and in which the laws are not to be altered but by the will of the whole, nor corrupted by the force of private interest. Experience and reason show us that the probability of human traditions diminishes in proportion as they are distant from. their sources. How then can laws resist the inevitable force of time, if there be not a lasting monument of the social compact.

Hence we see the use of printing, which alone makes the public, and not a few individuals, the guardians and defenders of the laws. It is this art

which by diffusing literature, has gradually dissipated the gloomy spirit of cabal and intrigue. To this art it is owing that the atrocious crimes of our ancestors, who were alternately slaves and tyrants, are become less

frequent. Those who are acquainted with the history of the two or three last centuries may observe, how from the lap of luxury and effeminacy have sprung the most tender virtues, humanity, benevolence, and toleration of human errors. They may contemplate the effects of what was so improperly called ancient simplicity and good faith; humanity groaning under implacable superstition, the avarice and ambition of a few staining with human blood

the drones and palaces of kings, secret treasons and public massacres, every noble a tyrant over the people, and the ministers of the gospel of Christ bathing their hands in blood in the name of the God of all mercy. We may talk as we please of the corruption and degeneracy of the present age, but happily we see no such horrid examples of cruelty and oppression.

Of the Proportion between Crimes and Punishments.

It is not only the common interest of mankind that crimes should not be committed, but that crimes of every kind should be less frequent, in

proportion to the evil they produce to society. Therefore the means made use of by the legislature to prevent crimes should be more powerful in

proportion as they are destructive of the public safety and happiness, and

as the inducements to commit them are stronger. Therefore there ought to be a fixed proportion between crimes and punishments.

It is impossible to prevent entirely all the disorders which the passions of mankind cause in society. These disorders increase in proportion to the number of people and the opposition of private interests. If we consult history, we shall find them increasing, in every state, with the extent of dominion. In political arithmetic, it is necessary to substitute a

calculation of probabilities to mathematical exactness. That force which continually impels us to our own private interest, like gravity, acts

incessantly, unless it meets with an obstacle to oppose it. The effect of this force are the confused series of human actions. Punishments, which I would call political obstacles, prevent the fatal effects of private

interest, without destroying the impelling cause, which is that sensibility inseparable from man. The legislator acts, in this case, like a skilful

architect, who endeavours to counteract the force of gravity by combining the circumstances which may contribute to the strength of his edifice.

The necessity of uniting in society being granted, together with the

conventions which the opposite interests of individuals must necessarily require, a scale of crimes may be formed, of which the first degree should consist of those which immediately tend to the dissolution of society, and the last of the smallest possible injustice done to a private member of that

society. Between these extremes will be comprehended all actions contrary to the public good which are called criminal, and which descend by insensible degrees, decreasing from the highest to the lowest. If mathematical

calculation could be applied to the obscure and infinite combinations of human actions, there might be a corresponding scale of punishments, descending from the greatest to the least; but it will be sufficient that the wise legislator mark the principal divisions, without disturbing the order, left to crimes of the first degree be assigned punishments of the

last. If there were an exact and universal scale of crimes and punishments, we should there have a common measure of the degree of liberty and slavery, humanity and cruelty of different nations.

Any action which is not comprehended in the above mentioned scale will not be called a crime, or punished as such, except by those who have an interest in the denomination. The uncertainty of the extreme points of this scale hath produced system of morality which contradicts the laws, multitude of laws that contradict each other, and many which expose the best men to the severest punishments, rendering the ideas of vice and virtue vague and fluctuating and even their existence doubtful. Hence that fatal lethargy of political bodies, which terminates in their destruction.

Whoever reads, with a philosophic eye, the history of nations, and their laws, will generally find, that the ideas of virtue and vice, of a good or bad citizen, change with the revolution of ages, not in proportion to the

alteration of circumstances, and consequently conformable to the common good, but in proportion to the passions and errors by which the different lawgivers were successively influenced. He will frequently observe that the passions and vices of one age are the foundation of the morality of the

following; that violent passion, the offspring of fanaticism and enthusiasm, being weakened by time, which reduces all the phenomena of the natural and moral world to an equality, become, by degrees, the prudence of the age, and an useful instrument in the hands of the powerful or artful politician.

Hence the uncertainty of our notions of honour and virtue; an uncertainty which will ever remain, because they change with the revolutions of time, and names survive the things they originally signified; they change with the boundaries of states, which are often the same both in physical and moral geography.

Pleasure and pain are the only springs of actions in beings endowed with sensibility. Even amongst the motives which incite men to acts of religion, the invisible legislator has ordained rewards and punishments. From a partial distribution of these will arise that contradiction, so little

observed, because so common, I mean that of punishing by the laws the crimes which the laws have occasioned. If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter men from committing the greater as often as it is attended with greater advantage.

Of estimating the Degree of Crimes.

The foregoing reflections authorise me to assert that crimes are only to be measured by the injury done to society.

They err, therefore, who imagine that a crime is greater or less according to the intention of the person by whom it is committed; for this will depend on the actual impression of objects on the senses, and on the previous

disposition of the mind; both which will vary in different persons, and even in the same person at different times according to the succession of ideas,

passions, and circumstances. Upon that system it would be necessary to form, not only a particular code for every individual, but a new penal law for every crime. Men, often with the best intention, do the greatest injury to society, and, with the worst, do it the most essential services.

Others have estimated crimes rather by the dignity of the person offended than by their consequences to society. If this were the true standard, the smallest irreverence to the Divine Being ought to be punished with infinitely more severity than the assassination of a monarch.

In short, others have imagined, that the greatness of the sin should