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A COMMENTARY ON THE BOOK OF CRIMES AND PUNISHMENTS. - Cesare Bonesana di Beccaria, An Essay on Crimes and Punishments 
An Essay on Crimes and Punishments. By the Marquis Beccaria of Milan. With a Commentary by M. de Voltaire. A New Edition Corrected. (Albany: W.C. Little & Co., 1872).
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A COMMENTARY ON THE BOOK OF CRIMES AND PUNISHMENTS.
THE OCCASION OF THIS COMMENTARY.
Having read, with infinite satisfaction, the little book on Crimes and Punishments, which in morality, as in medicine, may be compared to one of those few remedies, capable of alleviating our sufferings; I flattered myself that it would be a means of softening the remains of barbarism in the laws of many nations; I hoped for some reformation in mankind, when I was informed, that, within a few miles of my abode, they had just hanged a girl of eighteen, beautiful, well made, accomplished, and of a very reputable family.
She was culpable of having suffered herself to be got with child, and also, of having abandoned her infant. This unfortunate girl, flying from her father’s house, is taken in labour, and, without assistance, is delivered of her burden by the side of a wood. Shame, which in the sex is a powerful passion, gave her strength to return home, and to conceal her situation. She left her child exposed; it is found the next morning; the mother is discovered, condemned and executed.
The first fault of this unhappy victim ought to have been concealed by the family, or rather claims the protection of the laws, because it was incumbent on her seducer to repair the injury he had done; because weakness hath a right to indulgence; because concealing her pregnancy may endanger her life; because declaring her condition destroys her reputation, and because the difficulty of providing for her infant is a great additional misfortune.
Her second fault is more criminal. She abandons the fruit of her weakness, and exposes it to perish.
But because a child is dead, is it absolutely necessary to kill the mother? She did not kill the child. She flattered herself, that some passenger would have compassion on the innocent babe. It is even possible that she might intend to return and provide for it; a sentiment so natural in the breast of a mother, that it ought to be presumed. The law in the country of which I am speaking is, indeed, positively against her. But is it not an unjust, inhuman, and pernicious law? Unjust, because it makes no distinction between her who murders, and her who abandons her infant; inhuman, because it punishes with death a too great desire of concealing a weakness; pernicious, because it deprives the state of a fruitful subject, in a country that wants inhabitants.
Charity hath not yet established, in that nation, houses of reception for exposed infants. Where charity is wanting, the law is always cruel. It were much better to prevent, than to think only of punishing these frequent misfortunes. The proper object of jurisprudence is, to hinder the commission of crimes, rather than condemn to death a weak woman, when it is evident that her transgression was unattended with malice, and that she hath already been severely punished by the pangs of her own heart.
Insure, as far as possible, a resource to those who shall be tempted to do evil, and you will have less to punish.
This misfortune, and this very hard law, with which I was so sensibly affected, prompted me to cast my eyes on the criminal code of nations. The humane author of the Essay on Crimes and Punishments, had but too much cause to complain, that the latter frequently exceed the former, and are sometimes detrimental to the state they were intended to serve.
Those ingenious punishments, the ne plus ultra of the human mind, endeavouring to render death horrible, seem rather the inventions of tyranny than of justice.
The punishment of the wheel was first introduced in Germany in the times of anarchy, when those who usurped the regal power resolved to terrify, with unheard-of torments, those who should dispute their authority. In England they ripped open the belly of a man guilty of high-treason, tore out his heart, dashed it in his face, and then threw it into the fire. And wherein did this high-treason frequently consist? In having been, during a civil war, faithful to an unfortunate king; or, in having spoken freely on the doubtful right of the conqueror. At length, their manners were softened; they continued to tear out the heart, but not till after the death of the offender. The apparatus is dreadful, but the death is mild, if death can ever be mild.
ON THE PUNISHMENT OF HERETICS.
The denunciation of death to those who, in certain dogmas, differed from the established church, was peculiarly the act of tyranny. No Christian emperor, before the tyrant Maximus, ever thought of condemning a man to punishment merely for points of controversy. It is true, indeed, that two Spanish bishops pursued to death the Priscilianists under Maximus; but it is also true, that this tyrant was willing to gratify the reigning party with the blood of heretics. Barbarity and justice were to him indifferent. Jealous of Theodosius, a Spaniard like himself, he endeavoured to deprive him of the empire of the East, as he had already obtained that of the West. Theodosius was hated for his cruelties; but he had found the means of gaining to his party the heads of the church. Maximus was willing to display the same zeal, and to attach the Spanish bishops to his faction. He flattered both the old and the new religion; he was as treacherous as inhuman, as indeed were all those who at that time either pretended to, or obtained empire. That vast part of the world was then governed like Algiers at present. Emperors were created and dethroned by the military power, and were often chosen from among nations that were reputed barbarous. Theodosius opposed to his competitor other barbarians from Scythia. He filled the army with Goths, and surprised Alaric the conqueror of Rome. In this horrible confusion, each endeavoured to strengthen his party by every means in his power.
Maximus having caused the Emperor Gratian, the colleague of Theodosius, to be assassinated at Lyons, meditated the destruction of Valentinian the second, who, during his infancy, had been made successor to Gratian. He assembled at Treves a powerful army, composed of Gauls and Germans. He caused troops to be levied in Spain, when two Spanish bishops, Idacio and Ithacus, or Itacius, both men of credit, came and demanded of him the blood of Priscilian, and all his adherents, who were of opinion, that souls were emanations from God; that the Trinity did not contain three hypostases; and moreover, they carried their sacrilege so far as to fast on Sundays. Maximus, half Pagan, and half Christian, soon perceived the enormity of these crimes. The holy bishops, Idacio and Itacius, obtained leave to torture Priscilian and his accomplices before they were put to death. They were both present, that things might be done according to order, and they returned blessing God, and numbering Maximus, the defender of the faith, among the saints. But Maximus being afterward defeated by Theodosius, and assassinated at the feet of his conqueror, had not the good fortune to be canonized.
It is proper to observe, that Saint Martin, bishop of Tours, who was really a good man, solicited the pardon of Priscilian; but being himself accused of heresy by the bishops, he returned to Tours, for fear of the torture at Treves.
As to Priscilian, he had the consolation, after he was hanged, of being honoured by his sect as a martyr. His feast was celebrated, and would be celebrated still, if there were any Priscilianists remaining.
This example made the entire church tremble; but it was soon after imitated and surpassed. Priscilianists had been put to death by the sword, the halter, and by lapidation. A young lady of quality, suspected to have fasted on a Sunday, was at Bourdeaux only stoned to death. These punishments appeared too mild; it was proved that God required that heretics should be roasted alive. The peremptory argument, in support of this opinion was, that God punishes them in that manner in the next world, and that every prince, or his representative, even down to a petty constable, is the image of God in this sublunary world.
On this principle it was, that all over Europe they burnt witches and sorcerers, who were manifestly under the empire of the devil; and also heterodox Christians, which were deemed still more criminal and dangerous.
It is not certainly known, what was the crime of those priests who were burnt at Orleans in the presence of king Robert and his wife Constantia, in the year 1022. How indeed should it be known? there being, at that time, but a small number of clerks and monks that could write. All we certainly know is, that Robert and his wife feasted their eyes with this abominable spectacle. One of the sectaries had been confessor to her majesty, who thought she could not better repair the misfortune of having confessed to a heretic, than by seeing him devoured by the flames.
Custom becomes law; from that period to the present time, a space of more than seven hundred years, the church hath continued to burn those that are guilty, or supposed guilty, of an error in opinion.
ON THE EXTIRPATION OF HERESY.
It seems necessary to distinguish an heresy of opinion from faction. From the first ages of Christianity opinions have been different. The Christians of Alexandria were, in many points, of a different opinion from those of Antioch. The Achaians differed from the Asiatics. This diversity of opinion existed from the beginning, and probably will continue for ever. Jesus Christ, who could have united all the faithful in the same sentiments, did it not; and therefore we may conclude that it was not his design; but that he chose rather to exercise all his churches in acts of indulgence and charity, by permitting different systems, yet all agreeing to acknowledge him their lord and master. These several sects, so long as they were tolerated by the emperors, or concealed from their sight, had it not in their power to prosecute each other, being equally subject to the Roman magistrates; they could only dispute. If they were persecuted, they equally claimed the privilege of nature: “Suffer us,” they said, “to adore our God in peace, and do not refuse us the liberty you grant to the Jews:” Every sect may now urge the same argument to their oppressors. They may say to those who want privileges to the Jews; “Treat us as you treat the sons of Jacob; let us, like them, pray to God according to our conscience. Our opinion will no more injure your state, than Judaism. You tolerate the enemies of Jesus Christ, tolerate us who adore him, and who differ from you only in theological subtleties. Do not deprive yourselves of useful subjects; useful in your manufactures, your marine, and the cultivation of your lands. Of what importance is it, that their creed be somewhat different from yours? You want their labour, and not their catechism?”
Faction is quite a different thing. It always happens, that a persecuted sect degenerates into faction. The oppressed naturally unite and animate each other; and are generally more industrious in strengthening their party, than their persecutors in their extermination. They must either destroy or be destroyed. So it happened after the persecution excited in 304, by Galerius, in the two last years of Dioclesian. The Christians, having been favoured by that emperor during eighteen years, were become too numerous and too rich to be exterminated. They joined Chlorus; they fought for his son Constantine, and a total revolution of the empire was the consequence.
Small events may be compared with great, when they are produced by the same spirit. Revolutions of a similar kind happened in Holland, in Scotland, and in Switzerland. When Ferdinand and Isabella drove the Jews out of Spain, where they were established not only before the reigning family, but before the Moors, the Goths, or even the Carthaginians; if the Jews had been as warlike as they were rich, they might easily, in conjunction with the Arabs, have effected a revolution.
In short, no sect ever changed the government, unless excited by despair. Mahomed himself succeeded only because he was driven from Mecca, and a reward offered for his head.
Would you prevent a sect from overturning the state, imitate the present wise conduct of England, of Germany, of Holland; use toleration. The only methods, in policy, to be taken with a new sect, are, to put to death the chief and all his adherents, men, women, and children, without sparing one individual; or to tolerate them, when numerous. The first method is that of a monster; the second of a wise man.
Chain your subjects to the state by their interest. Let the Quaker and the Turk find their advantage in living under your laws. Religion is of God to man; the civil law is of you to your people.
Lewis IX. king of France, who for his virtues was numbered among the saints, made a law against blasphemers. He condemned them to a new punishment; their tongues were pierced with a hot iron. It was a kind of retaliation; the sinning member suffering the punishment. But it was somewhat difficult to determine what was blasphemy. Expressions frequently escape from a man in a passion, from joy, or even in conversation, which are merely expletives, such as the sela and the vab of the Hebrews, the pol and the ædepol of the Latins, as also per Deos immortales, an expression frequently used, without the least intention of swearing by the immortal gods.
The words which are called oaths and blasphemy, are commonly vague terms that may be variously interpreted. The law by which they are punished, seems to be founded on that of the Jews, which says: Thou shalt not take the name of the Lord thy God in vain. The best commentators are of opinion, that this commandment relates to perjury; and there is the more reason to believe them right, as the word shave, which is translated in vain, properly signifies perjury. Now, what analogy can there be between perjury and Cabo de Dios, Cadedis, Sangbleu, Ventrebleu, Corpo de Dio, etc.?
It was customary with the Jews to swear by the life of God, as the Lord liveth: the phrase was common; so that it was lying in the name of God that was forbidden.
Philip Augustus, in 1181, condemned the nobility who should pronounce the words which are softened in the terms Tetebleu, Ventrebleu, Corbleu, Sangbleu, to pay a fine, and the plebeians to be drowned. The first part of this law seems puerile, the latter abominable. It was an outrage to nature, to drown one man for a crime for which another paid a few pence of the money of those times. So that this law, like many other, remained unexecuted, especially when the king was excommunicated, and his kingdom interdicted by Pope Celestine III.
Saint Lewis, transported with zeal, ordered indiscriminately, that whosoever should pronounce these indecent words, should have his tongue bored, or his upper lip cut off. A citizen of Paris, having suffered this punishment, complained to Pope Innocent IV. This pontiff remonstrated to the king that the punishment was too great for the crime, which however had no effect upon his majesty. Happy had it been for mankind, if the popes had never affected any other superiority over kings.
The ordinance of Lewis XIV. says, “Those who shall be convicted of having sworn by, or blasphemed the holy name of God, of his most holy mother, or of his saints, shall, for the first offence, pay a fine; for the second, third, and fourth, a double, triple, and quadruple fine; for the fifth, shall be put in the stocks; for the sixth, shall stand in the pillory, and lose his upper lip; for the seventh, shall have his tongue cut out.”
This law appears to be humane and just, as it inflicts a cruel punishment only on a seven-fold repetition, which can hardly be presumed.
But with regard to more atrocious profanations, which are called Sacrilege, the criminal ordinance mentions only robbing of churches; it takes no notice of public impieties, perhaps because they were not supposed to happen, or were too difficult to specify. They are left therefore to the discretion of the judge; and yet nothing ought to be left to discretion.
In such extraordinary cases, how is the judge to act? He should consider the age of the offender, the nature and degree of his offence, and particularly the necessity of a public example. Pro qualitate personæ, quoque rei conditione et temporis et ætatis et sexus, vel clementius statuendum. If the law does not expressly say that such a crime shall be punished with death, what judge shall think himself authorised to pronounce that sentence? If the law be silent; if nevertheless a punishment be required, the judge ought certainly, without hesitation, to decree the least severe, because he is a man.
Sacrilegious profanations are never committed except by young debauchees. Would you punish them as severely as if they had murdered a brother? Their youth pleads in their favour. They are not suffered to dispose of their possessions, because they are supposed to want maturity of judgment, sufficient to foresee the consequences of an imprudent transaction. Is it not therefore natural to suppose, that they are incapable of foreseeing the consequences of their impiety?
Would you treat a wild young man, who, in his phrenzy, had profaned a sacred image, without stealing it, with the same rigour that you punished a Brinvilliers, who poisoned his father and his whole family?
There is no law against the unhappy youth, and you are determined to make one that shall condemn him to the severest punishment! He deserved chastisement, but did he deserve such excruciating torture, and the most horrible death?
But he had offended God! True, most grievously. Imitate God in your proceedings against him. If he be penitent, God forgives him. Impose a penance, and let him be pardoned.
Your illustrious Montesquieu hath said: It is our duty to honour the Deity, and not to revenge him. Let us weigh these words. They do not mean, that we should neglect the maintenance of public decorum; but, as the judicious author of the preceding Essay observes, that it is absurd for an insect to pretend to revenge the Supreme Being. A village magistrate, or the magistrate of a city, is neither a Moses nor a Joshua.
OF THE INDULGENCE OF THE ROMANS IN MATTERS OF RELIGION.
The amazing contrast between the Roman laws, and the barbarous institutions by which they were succeeded, hath often been the subject of conversation among the speculative part of mankind.
Doubtless the Roman senate held the supreme God in as great veneration as we; and professed as much esteem for their secondary deities as we for our saints. Ab Jove principium was their common formule. Pliny, in his panegyric on the good Trajan, attests, that the Romans never omitted to begin their discourse and affairs by invoking the Deity. Cicero and Livy tell us the same thing. No people were more religious; but they were too wise, and too great, to descend to the punishment of idle language or philosophic opinions. They were incapable of inflicting barbarous punishments on those who, with Cicero, himself an augur, had no faith in auguries; or on those who, like Cæsar, asserted in full senate, that the gods do not punish men after death.
It hath often been remarked that the senate permitted the chorus in the Troad to sing, There is nothing after death, and death itself is nothing. You ask, what becomes of the dead? They are where they were ere they were born.*
Was ever profanation more flagrant than this? From Ennius to Ausonius all his profanation, notwithstanding the respect for divine worship. Why were these things disregarded by the senate? Because they did not, in any wise, affect the government of the state; because they disturbed no institution, nor religious ceremony. The police of the Romans was nevertheless excellent; they were nevertheless absolute masters of the best part of the world, till the reign of Theodosius the second.
It was a maxim of the Romans, Deorum offensæ, Diis curæ, Offences against the gods concern the gods only. The senate, by the wisest institution, being at the head of religion, were under no apprehensions that a convocation of priests should force them to revenge the priesthood under a pretext of revenging Heaven. They never said, let us tear the impious asunder, lest we ourselves be deemed impious; let us shew the priesthood, by our cruelty, that we are no less religious than they.
But our religion is more holy than that of the Romans, and consequently impiety is a greater crime. Granted. God will punish it. The part of man is, to punish that which is criminal in the public disorder which the impiety hath occasioned. But if in the act of impiety the delinquent hath not even stolen a handkerchief; if the ceremonies of religion have been in no wise disturbed, shall we, as I said before, punish the impiety as we would punish parricide? The Marshal d’Ancre had caused a white cock to be killed when the moon was at full: ought we therefore to burn the Marshal D’Ancre?
ON THE CRIME OF PREACHING; AND OF ANTHONY.
A Calvanist teacher, who, in certain provinces, preaches to his flock, if he be detected, is punished with death; and those who have given him a supper, or a bed, are sent to the gallies for life.
In other countries, if a Jesuit be caught preaching, he is hanged. Is it to avenge God that this Calvinist and this Jesuit are put to death? Have both parties built upon the following Evangelical law? If he neglect to hear the church, let him be unto thee as an heathen man and a publican. But the Evangelist does not order that this heathen and this publican should be hanged.
Or have they built on this passage in Deuteronomy:*If among you a prophet arise; and that which he hath said come to pass; and he sayeth unto you, let us follow strange gods; and if thy brother, or thy son, or thy wife, or the friend of thy heart, say unto thee, Come, let us follow strange gods: let thembe straightways killed, strike thou first, and all the people after thee. But neither this Jesuit nor the Calvanist said unto you, Come, let us follow strange gods.
The counsellor Dubourg, the monk Jehan Chouvin, named Calvin, the Spanish physician Servetus, the Calabrian Gentilis, all worshipped the same God: and yet the president Minard caused counsellor Dubourg to be burnt; and Dubourg’s friends caused president Minard to be assassinated; Jehan Calvin caused the physician Servetus to be roasted; and had likewise the consolation to be a principal means of bringing the Calabrian Gentilis to the block; and the successors of Jehan Calvin burnt Anthony. Was it reason, or piety, or justice, that committed these murders?
This history of Anthony is one of the most singular which the annals of phrenzy hath preserved. I read the following account in a very curious manuscript; it is in part related by Jacob Spon.
Anthony was born at Brieu in Lorrain, of catholic parents, and he was educated by the Jesuits at Pont a Mousson. The preacher Feri engaged him in the protestant religion at Metz. Having returned to Nancy he was prosecuted as a heretic, and, had he not been saved by a friend, would certainly have been hanged. He fled for refuge to Sedan, where, being taken for a Papist, he narrowly escaped assassination.
Seeing by what strange fatality his life was not in safety, either among Papists or Protestants, he went to Venice and turned Jew. He was positively persuaded, even to the last moments of his life, that the religion of the Jews was the only true religion; for that, if it was once true, it must always be so. The Jews did not circumcise him, for fear of offending the state; but he was no less internally a Jew. He now went to Geneva, where, concealing his faith, he became a preacher, was president of the college, and finally what is called a minister.
The perpetual combat in his breast between the religion of Calvin, which he was obliged to preach, and that of Moses, which was the only religion he believed, produced a long illness. He became melancholy, and at last quite mad, crying aloud, that he was a Jew. The ministers of the gospel came to visit him, and endeavoured to bring him to himself; but he answered, “that he adored none but the God of Israel; that it was impossible for God to change; that God could never have given a law, and inscribed it with his own hand, with an intention that it should be abolished.” He spoke against Christianity, and afterwards retracted all he had said, and even wrote his confession of faith, to escape punishment; but the unhappy persuasion of his heart would not permit him to sign it. The council of the city assembled the clergy, to consult what was to be done with the unfortunate Anthony. The minority of these clergy were of opinion, that they should have compassion on him, and rather endeavour to cure his disease than punish him. The majority determined that he should be burnt, and he was burnt. This transaction is of the year 1632.* A hundred years of reason and virtue are scarce sufficient to expiate such a deed.
THE HISTORY OF SIMON MORIN.
The tragical end of Simon Morin is not less horrible than that of poor Anthony. It was midst the feasting, pleasures, and gallantry of a brilliant court; it was even in the times of the greatest licentiousness, that this unfortunate madman was burnt at Paris, in the year 1663. Imagining that he had seen visions, he carried his folly so far, as to believe that he was sent from God, and that he was incorporated with Jesus Christ.
The Parliament very wisely condemned him to be confined in a mad-house. What was very remarkable, there happened to be confined in the same mad-house another fool, who called himself God the Father. Simon Morin was so struck with the folly of his companion, that he acknowledged his own, and appeared for a time to have recovered his senses. He declared his repentance, and, unfortunately for himself, obtained his liberty.
Some time after, he relapsed into his former nonsense, and began to dogmatize. His unhappy destiny brought him acquainted with St. Sorlin Desmarets, who, for some months, was his friend, but who afterwards, from jealousy, became his most cruel persecutor.
This Desmarets was no less a visionary than Morin. His first follies indeed were innocent. He printed the Tragi-Comedies of Erigone and Mirame, with a translation of the Psalms; the Romance of Ariane, and the Poem of Clovis, with the office of the holy Virgin turned into verse. He likewise published dithyrambic poems, enriched with invectives against Homer and Virgil. From this kind of follies he proceeded to others of a more serious nature. He attacked Port-Royal, and after confessing that he had perverted some women to atheism, he commenced prophet. He pretended that God had given him, with his own hand, the key to the treasure of the Apocalypse, that with this key he would reform the whole world, and that he should command an army of an hundred and forty thousand men against the Jansenists.
Nothing could have been more reasonable and more just, than to have confined him in the same place with Simon Morin; but can it be believed, that he found credit with the Jesuit Annat, the king’s confessor? whom he persuaded, that this poor Simon Morin would establish a sect almost as dangerous as the Jansenists themselves. In short, carrying his infamy so far as to turn informer, he obtained an order to seize the person of his rival. Shall I tell it! Simon Morin was condemned to be burnt alive?
In conducting him to the stake, there was found, in one of his stockings, a paper in which he begged forgiveness of God for all his errors. This ought to have saved him; but no: the sentence was confirmed, and he was executed without mercy.
Such deeds are enough to make a man’s hair bristle with horror. Yet where is the country that hath not beheld such shocking spectacles? Mankind universally forget that they are brothers, and persecute each other even to death. Let us console ourselves with the hope, that such dreadful times are passed, never more to return.
In the year 1748, in the bishopric of Wurtsburg, an old woman was convicted of witchcraft and burnt. This was an extraordinary phenomenon in the present century. But how incredible it seems, that a people, who boasted of their reformation, and of having trampled superstition under their feet, and who flattered themselves that they had brought their reason to perfection; is it not wonderful, I say, that such a people should have believed in witchcraft; should have burnt old women accused of this crime, and that above a hundred years after the pretended reformation of their reason?.
In the year 1652, a country woman, named Michelle Chaudron, of the little territory of Geneva, met the devil in her way from the city. The devil gave her a kiss, received her homage, and imprinted on her upper lip and on her right breast, the mark which he is wont to bestow upon his favourites. This seal of the devil is a little sign upon the skin, which renders it insensible, as we are assured by all the demonographical civilians of those times.
The devil ordered Michelle Chaudron to bewitch two young girls. She obeyed her master punctually. The parents of the two girls accused her of dealing with the devil. The girls, being confronted with the criminal, declared, that they felt a continual prickling in some parts of their bodies, and that they were possessed. Physicians were called, at least men that passed for physicians in those days. They visited the girls. They sought for the seal of the devil on the body of Michelle, which seal is called, in the verbal process, the Satanical mark. Into one of these marks they plunged a long needle, which was already no small torture. Blood issued from the wound, and Michelle testified by her cries that the part was not insensible. The judges not finding sufficient proof that Michelle Chaudron was a witch, ordered her to be tortured, which infallibly produced the proof they wanted. The poor wretch, overcome by torment, confessed at last every thing they desired.
The physicians sought again for the Satanical mark, and found it in a little black spot on one of her thighs. Into this they plunged their needle. The poor creature, exhausted and almost expiring with the pain of the torture, was insensible to the needle, and did not cry out. She was instantly condemned to be burnt; but the world beginning at this time to be a little more civilized, she was previously strangled.
At this period every tribunal in Europe resounded with such judgments, and fire and faggot were universally employed against witchcraft as well as heresy. The Turks were reproached with having amongst them neither sorcerers, witches, nor demoniacs; and the want of the latter was considered as an infallible proof of the falsity of their religion.
A zealous friend to the public welfare, to humanity, and to true religion, in one of his writings in favour of innocence, informs us, that there have been above a hundred thousand witches condemned to die by Christian tribunals. If, to these lawful massacres, we add the much superior number of heretics sacrificed, our part of the globe will appear one vast scaffold covered with executioners and victims, and surrounded by judges, guards, and spectators.
ON THE PUNISHMENT OF DEATH.
It hath long since been observed, that a man after he is hanged is good for nothing, and that punishments invented for the good of society, ought to be useful to society. It is evident, that a score of stout robbers, condemned for life to some public work, would serve the state in their punishment, and that hanging them is a benefit to nobody but the executioner. Thieves, in England, are seldom punished with death, but are transported to the colonies. This is also practised in Russia, where not one criminal was executed during the whole reign of the autocratical Elisabeth. Catherine II. who hath succeeded her, with much more genius, follows her example; yet crimes are not multiplied by this humanity; and it generally happens that the criminals sent to Siberia in time become honest people. The same is observed in the English colonies. We are astonished at the change, and yet nothing can be more natural. The condemned are forced to continual labour for a livelihood. The opportunities of vice are wanting. They marry and multiply. Oblige men to work, and you certainly make them honest. It is well known, that atrocious crimes are not committed in the country, unless when there is too much holiday, and consequently too much idleness, and consequently too much debauchery.
The Romans never condemned a citizen to death, unless for crimes which concerned the safety of the state. These our masters, our first legislators, were careful of the blood of their fellow-citizens; but we are extravagant with the blood of ours.
The question hath been frequently debated, whether a judge ought to have the power to punish with death, when the punishment is undetermined by the law? This question was solemnly agitated in the presence of the Emperor Henry VII. who decreed that no judge should have such a power.*
There are some criminal cases which are either so new, so complicated, and so unaccountable as to have escaped the provision of the laws, and which, therefore, in some countries are left to the discretion of the judge. But for one case in which the laws permit the death of a criminal whom they have not condemned, there are a thousand wherein humanity should save whom the laws have condemned to suffer.
The sword of justice is in our hands, but we ought rather to blunt than to sharpen its edge. It remains within its sheath in the presence of kings, to inform us that it ought seldom to be drawn.
There have been some judges who were passionately fond of spilling human blood; such was Jefferies in England, and such in France was the man whom they called Coupe-tete. Nature never intended such men for magistrates, but for executioners.
ON DEATH WARRANTS.
Must we go to the end of the world, must we have recourse to the laws of China, to learn how frugal we ought to be of human blood? It is now more than four thousand years that the tribunals of that empire have existed; and it is also more than four thousand years that the meanest subject, at the extremity of the empire, hath not been executed without first transmitting his case to the emperor, who causes it to be thrice examined by one of his tribunals; after which he signs the death warrant, alters the sentence, or entirely acquits.
But it is unnecessary to travel so far for examples of this nature; Europe will abundantly supply us. In England, no criminal is put to death, whose death warrant is not signed by the king. It is also practised in Germany, and in most parts of the north. Such likewise was formerly the custom in France, and such it ought to be in all polished nations. A sentence, at a distance from the throne, may be dictated by cabal, prejudice, or ignorance. Such little intrigues are unknown to monarchs, who are continually surrounded by great objects. The members of the supreme council are more enlightened, less liable to prejudice, and better qualified than a provincial judge, to determine whether the state require severe punishments. In short, when inferior courts have judged according to the letter of the law, which possibly may be rigorous, the council mitigates the sentence according to the true spirit of all laws, which teaches, never to sacrifice a man, but in evident necessity.
All mankind being exposed to the attempts of violence or perfidy, detest the crimes of which they may possibly be the victims: all desire that the principal offender and his accomplices may be punished; nevertheless, there is a natural compassion in the human heart, which makes all men detest the cruelty of torturing the accused in order to extort confession. The law has not condemned them, and yet, though uncertain of their crime, you inflict a punishment more horrible than that which they are to suffer when their guilt is confirmed. “Possibly thou mayst be innocent; but I will torture thee that I may be satisfied: not that I intend to make thee any recompence for the thousand deaths which I have made thee suffer, in lieu of that which is preparing for thee.” Who does not shudder at the idea? St. Augustin opposed such cruelty. The Romans tortured their slaves only; and Quintilian, recollecting that they were men, reproved the Romans for such want of humanity.
If there were but one nation in the world which had abolished the use of torture; if in that nation crimes were no more frequent than in others; and if that nation be more enlightened and more flourishing since the abolition, its example surely were sufficient for the rest of the world. England alone might instruct all other nations in this particular; but England is not the only nation. Torture hath been abolished in other countries, and with success; the question therefore is decided. Shall not a people, who pique themselves on their politeness, pride themselves also on their humanity? Shall they obstinately persist in their inhumanity, merely because it is an ancient custom? Reserve, at least, such cruelty for the punishment of those hardened wretches, who shall have assassinated the father of a family, or the father of his country; but that a young person, who commits a fault which leaves no traces behind it, should suffer equally with a parricide; is not this an useless piece of barbarity?
I am ashamed of having said any thing on this subject, after what hath been already said by the author of the Essay on Crimes and Punishments. I ought to have been satisfied with wishing, that mankind may read with attention the work of that friend to humanity.
OF CERTAIN SANGUINARY TRIBUNALS.
Is it credible, that there formerly existed a supreme tribunal more horrible than the Inquisition, and that this tribunal was established by Charlemagne? It was the judgment of Westphalia, otherwise called the Vhemic Court. The severity, or rather cruelty, of this court, went so far as to punish with death, every Saxon who broke his fast during Lent. The same law was also established in Franche-Comte, in the beginning of the seventeenth century. In the archives of a little place called St. Claude, situated in a remote corner of the most mountainous part of the county of Burgundy, are preserved the particulars of the sentence and verbal process of execution of a poor gentleman named Claude Guillon, who was beheaded on the 28th of July, 1629. Being reduced to the utmost poverty, and urged by the most intolerable hunger, he eat, on a fish-day, a morsel of horse flesh, which had been killed in a neighbouring field. This was his crime. He was found guilty of sacrilege. Had he been a rich man, and had spent two hundred crowns in a supper of sea-fish, suffering the poor to die of hunger, he would have been considered as a person fulfilling every duty. The following is a copy of his sentence: “Having seen all the papers of the process, and heard the opinions of the doctors learned in the law, we declare the said Claude Guillon to be truly attainted and convicted of having taken away part of the flesh of a horse, killed in the meadow of that town; of having caused the said flesh to be dressed, and of eating the same on Saturday the 31st of March,” etc.
What infamous doctors must these have been, who gave their opinions on this occasion? Was it among the Topinambous, or among the Hottentots, that these things happened? The Vhemic Court was yet more horrible. Delegates from this court were secretly spread over all Germany, taking informations unknown to the accused, who were condemned without being heard; and frequently, in want of an executioner, the youngest judge performed the office himself.* It was requisite, in order to be safe from the assassination of this court, to procure letters of exemption from the emperor; and even these were sometimes ineffectual. This chamber of assassins was not entirely abolished till the reign of Maximilian I. It ought to have been dissolved in the blood of its members. The Venetian Council of Ten was, in comparison with this, a court of mercy.
What shall we think of such horrid proceedings? Is it sufficient to bewail humanity? There were some cases that cried aloud for vengeance.
ON THE DIFFERENCE BETWEEN POLITICAL AND NATURAL LAWS.
I callnatural laws, those which nature dictates in all ages to all men, for the maintenance of that justice which she (say what they will of her) hath implanted in our hearts. Theft, violence, homicide, ingratitude to beneficent parents, perjury against innocence, conspiracies against one’s country, are crimes that are universally and justly punished, though with more or less severity.
I call political laws, those that are made in compliance with present necessity, whether it be to give stability to the government, or to prevent misfortune. For example; being apprehensive that the enemy may receive intelligence from the inhabitants of the city, you shut the gates, and forbid any one to pass the ramparts on pain of death.
Or, fearful of a new sect of people, who publicly disclaim all obedience to their sovereign, and secretly consult of means to divest themselves of that obedience; who preach, that all men are equal, and that obedience is due to God alone; who, accusing the reigning sect of superstition, mean to destroy that which is consecrated by the state; you denounce death against those who, in publicly dogmatizing in favour of this sect, may instigate the people to revolt.
Or, two ambitious princes contend for a crown: the strongest gains the prize, and punishes with death the partizans of the weaker. The judges become the instruments of vengeance of the new sovereign, and the supports of his authority.
When Richard the Third, the murderer of his two nephews, was acknowledged king of England, the jury found Sir William Collinburn guilty of having written to a friend of the Duke of Richmond, who was at that time raising an army, and who afterwards reigned by the name of Henry VII. They found two ridiculous lines of Sir William’s writing, which were sufficient to condemn him to a horrible death. History abounds with such examples of justice.
The right of reprisal is also a law adopted by nations. For example, your enemy has hanged one of your brave captains, for having defended an old ruined castle against a whole army. One of his captains falls into your hands; he is a worthy man, and you esteem him; nevertheless you hang him by way of reprisal. You say it is the law: that is to say, because your enemy has been guilty of an enormous crime, you must be guilty of another.
These political sanguinary laws exist but for a time; they are temporary, because they are not founded in truth. They resemble the necessity which, in cases of extreme famine, obliges people to eat each other: they cease to eat men as soon as bread is to be had.
ON THE CRIME OF HIGH-TREASON. ON TITUS OATES, AND ON THE DEATH OF AUGUSTIN DE THOU.
High-treason is an offence committed against the security of the commonwealth, or of the king its representative. It is considered as parricide, and therefore ought not to be extended to offences which bear no analogy to that crime. In making it high-treason to commit a theft in any house belonging to the state, or even to speak seditious words, you lessen the horror which the crime of high-treason ought to inspire.
In our ideas of great crimes, there should be nothing arbitrary. If a theft from, or imprecation against, a father be considered as parricide, you break the bond of filial piety; the son will then regard his parent as a terrible monster. Every exaggeration in a law tends to its destruction.
In common crimes, the laws of England are favourable to the accused; but in cases of high-treason they are against him. The Jesuit Titus Oates being legally interrogated in the House of Commons, and having upon his oath declared, that he had related the whole truth, yet afterwards accused the secretary of the Duke of York, and several others, of high-treason, and his information was admitted. He likewise swore before the king’s council, that he had not seen the secretary, and afterwards that he had. Notwithstanding these illegalities and contradictions, the secretary was executed.
The same Titus Oates and another witness deposed, that fifty Jesuits had conspired to assassinate Charles II. and that they had seen commissions, signed by father Oliva, general of the Jesuits, for the officers that were to command an army of rebels. This evidence was sufficient to authorize the tearing out the hearts of several people, and dashing them in their faces. But seriously, can two witnesses be thought sufficient to convict a man whom they have a mind to destroy? At least one would imagine they ought not to be notorious villains; neither ought that which they depose to be improbable.
Let us suppose that two of the most upright magistrates in the kingdom were to accuse a man of having conspired with the Mufti, to circumcise the whole Council of State, the Parliament, the Archbishop and the Sorbonne; in vain these two magistrates might swear, that they had seen the letters of the Mufti: it would naturally be supposed that they were wrong in their heads. It was equally ridiculous to imagine, that the general of the Jesuits should raise an army in England, as that the Mufti intended to circumcise the Court of France. But unhappily Titus Oates was believed; that there might remain no species of atrocious folly, which hath not entered into the heart of man.
The laws of England do not consider as guilty of conspiracy those who are privy to it, and do not inform. They suppose the informer as infamous as the conspirator is culpable. In France, if any one be privy to a conspiracy, and does not reveal it, he is punished with death. Lewis XI. against whom conspiracies were frequent, made this law; a law which a Lewis XII. or a Henry IV. could never have imagined. It not only obliges an honest man to divulge a crime, which, by his resolution and advice, he might possibly prevent; but it renders him liable to be punished as a calumniator, it being easy for the accused to manage their affairs in such a manner as to elude conviction.
This was exactly the case of the truly respectable Augustin de Thou, counsellor of state, and son of the only good historian of which France can boast; equal to Guicciardini in point of abilities, and perhaps superior in point of impartiality.
This conspiracy was against Cardinal de Richelieu, rather than against Lewis XIII. The design was not to betray France to an enemy; for the king’s brother, who was the principal author of the plot, could never intend to betray a kingdom to which he was the presumptive heir, there being only between him and the crown a dying brother, and two children in the cradle.
De Thou was neither guilty in the sight of God nor man. One of the agents of the king’s brother, of the Duke of Bouillon, sovereign prince of Sedan, and of the grand Equerry d’Effiat St. Mars, had communicated their intention to de Thou, who immediately went to St. Mars, and endeavoured to dissuade him from the enterprize. If he had informed against him, he had no proof, and must inevitably have fallen a sacrifice to the resentment of the presumptive heir of a sovereign prince, of the king’s favourite, and to public execration. In short, he would have been punished as a malignant calumniator.
The chancellor Seguier was convinced of this in confronting de Thou with the grand Equerry, when de Thou asked the latter the following question: “Do you not remember, Sir, that there never passed a day, in which I did not endeavour to dissuade you from the attempt?” St. Mars acknowledged it to be true. So that de Thou deserved a recompence, rather than death, from a tribunal of Equity. He certainly deserved to have been saved by Cardinal Richelieu; but humanity was not his virtue. There is in this case something more than summum jus summa injuria. In the sentence of this worthy man we read, “for having had knowledge and participation of the said conspiracy.” It does not say for not having revealed. So that his crime was, his having been informed of a crime; and he was punished for having had ears and eyes.
All that we can say in extenuation of the severity is, that it was not the act of Justice herself, but of a delegated power. The letter of the law was positive; but I appeal not only to the lawyers, but to all mankind, whether the spirit of the law was not perverted? It is a melancholy absurdity, that a small number of people should condemn as criminal, a man judged innocent by a whole nation, and worth their esteem!
OF RELIGIOUS CONFESSION.
Jaurigny and Balthazar Gerard, who assassinated William I. Prince of Orange; Clement the Dominican, Chatel, Ravaillac, and all the other parricides of those times, went to confession before they committed their crimes. Fanaticism, in that deplorable age, was carried to such excess, that confession was an additional engagement to the perpetration of villainy; an engagement deemed sacred, because confession is a sacrament.
Strada himself says, that Jaurigny non ante facinus aggredi sustinuit quam expiatam necis animam apud Dominicanum sacerdotem cælesti pane firmaverit.
It appears in the interrogatory of Ravaillac that coming from the Feuillants, and going towards the Jesuits college, he addressed himself to the Jesuit d’Aubigny; that after talking to him of several apparitions which he had seen, he shewed him a knife, on the blade of which was engraved a heart and a cross; and that he said, this heart signifies, that the heart of the king should be induced to make war against the Huguenots. If this d’Aubigny had informed the king of these words, and described the man, the best of kings might possibly have escaped assassination.
On the 20th of August, 1610, three months after the death of Henry IV. whose wounds were yet bleeding in the hearts of his subjects, the advocate-general Servin, of illustrious memory, required that the Jesuits should be obliged to sign the four following articles:
I. That the Council is superior to the Pope.
II. That the Pope cannot deprive the king of any of his rights by excommunication.
III. That the ecclesiastics are, like other people, entirely subject to the king.
IV. That a priest who, by confession, is apprized of a conspiracy against the king or the state, should reveal it to the magistrates.
On the 22d, the parliament published an arret, forbidding the Jesuits to instruct youth, until they had signed those four articles. But the court of Rome was at that time so powerful, and that of France so weak, that the arret was disregarded.
It is worth notice, that this court of Rome, which would not suffer confession to be revealed when the life of a sovereign was concerned, obliged the confessors to inform the Inquisition in case any female should accuse another priest of having seduced or attempted to seduce her. Paul IV. Pius IV. Clement VIII. and Gregory XV. ordered this revelation. It was a dangerous snare both for the confessor and the penitent. It was converting a sacrament into a register of accusations and sacrilege; for by the ancient canons, and particularly by the Lateran council, under Innocent III. every confessor who reveals confession, of whatsoever nature it may be, shall be interdicted and imprisoned for life.
Thus we see four different Popes, in the sixteenth and seventeenth centuries, ordering the revelation of a sin of impurity, and forbidding it in cases of parricide. A woman confesses, or supposes in her confession to a Carmelite, that a Cordelier attempted to seduce her; the Carmelite must impeach the Cordelier. A fanatical assassin, believing that he shall serve God by killing his prince, consults his confessor on this case of conscience; the confessor is guilty of sacrilege if he save the life of his sovereign.
This horrible absurdity is one of the unhappy consequences of the continual opposition, which hath subsisted for so many ages, between the ecclesiastical and civil law. Mankind have in a thousand instances been suspended between the crimes of sacrilege and high-treason, and the distinctions of right and wrong have been buried in a chaos, from which they are not yet emerged.
Confession of sins hath been authorised in all times and in all nations. The ancients accused themselves in the mysteries of Orpheus, of Isis, of Ceres, of Samothrace. The Jews confessed their sins on the day of solemn expiation, and still continue the same practice. Each penitent chuses his confessor, who becomes his penitent in turn, and each receives from his companion thirty-nine lashes whilst he is repeating, three times, the formule of confession, which consists only in thirteen words, and which consequently must be general.
None of these confessions were particular, and consequently could never serve for a pretence to those secret consultations, under the shadow of which fanatical penitents think to sin with impunity; a pernicious practice, by which a salutary institution is corrupted. Confession, which was intended as a curb to iniquity, hath frequently, in times of confusion and seduction, become an incentive to wickedness. Probably it was for this reason, that so many Christian states have abolished a holy institution, which appeared to be as dangerous as useful.
OF FALSE MONEY.
The crime of coining false money is deemed high-treason in the second degree, and justly. To rob all the people is to be a traitor to the state. But it is asked whether a merchant who imports ingots of gold from America, and privately converts them into good money, be guilty of high-treason, and merit death? which is the punishment annexed to this crime in almost all countries. Nevertheless, he has robbed nobody; on the contrary, he has done service to the state by increasing the currency. But he hath defrauded the king of the small profit upon the coin. He hath indeed coined good money; but he hath led others into the temptation of coining bad. Yet death is a severe punishment. I knew a lawyer who was of opinion, that such a criminal should be condemned, as a useful hand, to work in the royal mint, with irons to his legs.
ON DOMESTIC THEFT.
In countries where a trifling domestic theft, or breach of trust, is punished with death, is not the disproportioned punishment dangerous to society? Is it not even an encouragement to larceny? If, in this case, a master prosecutes his servant, and the unhappy wretch suffer death, the whole neighbourhood hold the master in abhorrence: they perceive that the law is contrary to nature, and consequently that it is a bad law.
What is the result? Masters, to avoid opprobrium, content themselves with discharging the thief, who afterwards steals from another, and gradually becomes familiar with dishonesty. The punishment being the same for a small theft as for a greater, he will naturally steal as much as he can, and at last will not scruple to turn assassin to prevent detection.
If, on the contrary, the punishment be proportioned to the crime; if those who are guilty of a breach of trust be condemned to labour for the public, the master will not hesitate to bring the offender to justice, and the crime will be less frequent: so true it is, that rigorous laws are often productive of crimes.
The celebrated Du Verger de Hauranne, Abbè de St. Cyran, one of the founders of Port Royal, in the year 1608, wrote a treatise on suicide, which is become one of the scarcest books in Europe.
“The Decalogue,” says that author, “forbids us to commit murder; in which precept self-murder seems no less to be understood, than the murder of another: if, therefore, there be cases in which it is lawful to kill another, there may be cases also wherein suicide may be allowed. But a man ought not to attempt his own life, till after having consulted his reason. Public authority, which is the representative of God, may dispose of our lives. The reason of man may also represent that of the Deity, it being a ray of the eternal light.”
St. Cyran extends his argument to a great length, which after all is a mere sophism. But when he comes to exemplify, he is not quite so easily answered. “A man may kill himself,” says he, “for the good of his prince, for the good of his country, or for the good of his parents.”
It does not appear, that we could with justice condemn a Codrus, or a Curtius. What prince would dare to punish the family of a man who had sacrificed himself for his service? Or rather, is there any prince who would dare not to reward them. St. Thomas, before St. Cyran, said the same thing. But there was no need of either of Thomas, of Bonaventure, nor of Huranne, to inform us, that a man who dies for his country deserves our praise.
St. Cyran concludes, that it is lawful to do for one’s own sake, that which is praise-worthy if done for another. The arguments of Plutarch, of Seneca, of Montaigne, and a hundred others, are well known. I do not pretend to apologise for an action which the laws have condemned; but I do not recollect, that either the Old or New Testament forbid a man to relinquish his life, when it is no longer supportable. By the Roman laws, suicide was not forbidden; on the contrary, in a law of Mark Antony, which was never repealed, we find it thus written: “If your brother or your father, being convicted of no crime, hath put himself to death, either to avoid pain, or being weary of life, or from despair or madness, his will shall nevertheless be valid, or his heirs inherit according to law.”
Notwithstanding this humane law of our ancient masters, we ordain, that a stake shall be driven through the corps of the offender, and his memory becomes infamous. We do all in our power to dishonour his family. We punish a son for having lost a father, and a widow because she is deprived of her husband. We even confiscate the effects of the deceased, and rob the living of that which is justly their due. This custom, with many others, is derived from our canon law, which denies Christian burial to those who are guilty of suicide, concluding thence, that it is not lawful to inherit on earth from one who hath himself no inheritance in heaven. The cannon law assures us, that Judas committed a greater crime in hanging himself, than in betraying Jesus Christ.
ON A CERTAIN SPECIES OF MUTILATION.
We find, in the Pandect, a law of Adrian, which denounces death to the physicians who should make an eunuch, either by castration or by bruising the testes. By the same law, the possessions of those who suffered castration were confiscated. Origen ought certainly to have been punished, who submitted to this operation, from the rigid interpretation of that passage in St. Matthew, which says, There be eunuchs, which have made themselves eunuchs for the kingdom of heaven’s sake.
Things changed in the reigns of succeeding emperors, who adopted the luxury of Asia; especially in the lower empire of Constantinople, where eunuchs became patriarchs and generals of armies.
In these our own times, it is the custom at Rome to castrate young children, to render them worthy of being musicians to his Holiness; so that Castrato and Musico del Papa are synonimous. It is not long since you might have seen at Naples, written in great letters over the doors of certain barbers, Qui si castrano mar avigliosamente i puti: here boys are castrated in the best manner.
It is a maxim received at the bar, that he who forfeits his life forfeits his effects; a maxim which prevails in those countries where custom serves instead of law. So that, as we have already observed, the children of one who puts an end to his own life, are condemned to perish with hunger, equally with those of an assassin. Thus, in every case, a whole family is punished for the crime of an individual. Thus when the father of a family is condemned to the gallies for life, by an arbitrary sentence, whether it be for having harboured a preacher, or for hearing his sermon in a cavern or a desert, his wife and children are reduced to beg their bread.
That law which consists in depriving an orphan of support, and in giving to one man the possessions of another, was unknown in the times of the Roman republic. It was first introduced by Sylla, in his proscriptions, whose example one would scarce have thought worthy imitation. Nor indeed was this law adopted by Cesar, by Trajan, or by Antoninus, whose name is still pronounced with respect by all nations; and under Justinian, confiscation took place only in case of high-treason.
It seems that, in the times of feudal anarchy, princes and lords not being very rich, sought to increase their revenue by the condemnation of their subjects. Their laws being arbitrary, and the Roman jurisprudence unknown, customs either cruel or ridiculous prevailed. But now that the power of princes is founded on immense and certain revenues, there can be no need to swell their treasuries with the inconsiderable wreck of an unfortunate family.
In countries where the Roman law is established, confiscation is not admitted, except within the jurisdiction of the parliament of Toulouse. It was formerly the law at Calais, but was abolished by the English, whilst that city was in their possession. It is strange, that the inhabitants of the capital should be subject to a severer law than the people in the country: but laws, like the cottages in a village, were generally established by accident, and without attention to the regularity of a general plan.
Who would believe that, in the year 1673, in the most brilliant period of the kingdom of France, the advocate-general, Omer Talon, did in full parliament express himself, on the subject of a young lady named Canillac, in the following words:
“God says, in the 13th chapter of Deuteronomy, If thou comest into a city where idolatry reigneth, thou shalt surely smite the inhabitants of that city with the edge of the sword, destroying it utterly and all that is therein. And thou shalt gather all the spoil thereof into the midst of the street, and shalt burn with fire the city, and all the spoil thereof, for the Lord thy God; and it shall be an heap for ever; and there shall cleave nought of the cursed thing to thine hand.”
“In like manner, in the crime of high-treason, the children were deprived of their inheritance, which became forfeited to the king. Naboth being prosecuted quia maledixerat regi, king Ahab took possession of his effects. David being informed that Mephibosheth had rebelled, gave all his possessions to Ziba who brought him the news: tua sint omnia quæ fuerunt Mephibosheth.”
The question in dispute was, who should inherit the paternal estate of Mlle. de Canillac, which having been confiscated, was abandoned by the king to a lord of the treasury, and afterwards bequeathed by him to the testatrix. In this cause concerning a girl of Auvergne it was, that an advocate-general referred to Ahab, king of a part of Palestine, who confiscated the vineyard of Naboth, after assassinating the owner with the sword of justice: an action so abominable as to have passed into a proverb, intended to inspire mankind with detestation for such acts of tyranny. There was certainly no analogy between the vineyard of Naboth and the inheritance of Mlle. de Canillac; nor hath the murder and confiscation of the possessions of Mephibosheth, the grandson of Saul, and son of Jonathan, the friend and protector of David, the least affinity with the will of this lady.
It was with such pedantry, with such foolish quotations foreign to the subject, with such ignorance of the first principles of human nature, with such prejudices ill conceived and ill applied, that laws have been explained and executed, by men who acquired reputation in their sphere. I leave to the reader that, which to tell him were superfluous.
ON CRIMINAL PROCEDURE, AND OTHER FORMS.
If, in France, it should ever happen that the laws of humanity soften some of our rigorous customs, without facilitating the commission of crimes, we may hope for reformation in those legal proceedings, wherein our legislators seem to have been influenced by too much severity. Our criminal procedure appears in many instances to point only at the destruction of the accused. It is the only law which is uniform throughout the whole kingdom; a law which ought certainly to be no less favourable to the innocent, than terrible to the guilty.
In England a man may recover damages for false imprisonment. In France, on the contrary, an innocent person, who has had the misfortune to be thrown into a dungeon and tortured almost to death, has no consolation, no damages to hope for, no action against any one; and to add to his misfortune, he has for ever lost his reputation. Why? Because his joints have been dislocated; a circumstance which ought rather to inspire compassion and respect. The discovery of crimes, say they, requires severity: it is a war of human justice against iniquity. But there is generosity and compassion even in war. The brave are ever compassionate; and shall the law delight in barbarity?
Let us compare the criminal procedure of the Romans with ours. With them, the evidence were heard publicly in presence of the accused, who might answer or interrogate them, or employ counsel. This procedure was open and noble; it breathed Roman magnanimity.
With us, all is conducted in secret. A single judge, only attended by his clerk, hears each witness separately. This custom, established by Francis I. was confirmed by the commissioners who were employed to digest the ordinance of Lewis XIV. in 1670; which confirmation was entirely owing to a mistake. They imagined, in reading the code de Testibus, that the words testes intrare judicii secretum, signified that the witnesses were examined in private; but secretum means here the chamber of the judge. Intrare secretum, if intended to signify private interrogation, would be false Latin. This part of our law therefore is founded on a solecism.
The evidence in these cases are commonly the dregs of the people, whom the judge may, in such private examination, make say whatever he pleases. They are examined a second time, but still privately; and if, after this re-examination, they retract from their deposition, or vary in any material circumstance, they are punished as false evidence. So that if a simple honest fellow, recollecting that he has said too much, that he misunderstood the judge, or the judge him, revoke his deposition from a principle of justice, he is punished as a reprobate. The natural consequence of this is, that men will confirm a false testimony rather than expose themselves, for their honesty, to certain punishment.
The law seems to oblige the magistrate to be the enemy of the accused, rather than his judge; it being left in the power of the magistrate to confront the evidence with the accused, or not, as he shall think proper. Amazing! that so necessary a part of the procedure should be left undetermined.
A man being suspected of a crime, knowing that he is denied the benefit of counsel, flies his country; a step to which he is encouraged by every maxim of the law. But he may be condemned in his absence, whether the crime be proved or not. Strange laws! If a man be charged with owing a sum of money, before he can be condemned to pay the demand, it is required that the debt be proved; but if his life be in question, he may be condemned, by default, without any proof of the crime. Is money then of more importance than life? O ye judges and legislators! Consult the pious Antoninus, and the good Trajan: they suffered not the absent to be condemned.
Do your laws then allow the privilege of counsel to an extortioner, or a fraudulent bankrupt, and refuse it to one who may possibly be a very honest and honourable man? If there ever were an instance of innocence being justified by means of counsel, the law, which deprives the accused of that benefit, is evidently unjust.
The parliament of Toulouse hath a very singular custom relative to the validity of evidence. In other places demi-proofs are admitted, which is a palpable absurdity, there being no such thing as demi-truth; but at Toulouse they admit of quarters and eighths of a proof. For instance, an hearsay may be considered as a quarter, and another hearsay, more vague than the former, as an eighth: so that eight hearsays, which in fact are no other than an echo of a groundless report, constitute a full proof. Upon this principle it was, that poor Calas was condemned to the wheel.
THE IDEA OF REFORMATION.
Magistrates are in themselves so respectable, that the inhabitants of the only country in which they are venal, sincerely pray to be delivered from this custom: they wish that the civilian may by his merit establish that justice, which in his writings he hath so nobly defended. We may then possibly hope to see a regular and uniform system of laws.
Shall the law of the provinces be always at variance with the law in the capital? Shall a man be right in Britanny, and wrong in Languedoc? Nay, there are as many laws as there are towns; and, even in the same parliament, the maxims of one chamber are not the maxims of another.
What astonishing contrariety in the laws of one kingdom! In Paris, a man who has been an inhabitant during one year and a day, is reputed a citizen. In Franche-Comte, a freeman who, during a year and a day, inhabits a house in mortmain, becomes a slave; his collateral heirs are excluded from inheriting his foreign acquisitions, and even his children are deprived of their inheritance, if they have been a year absent from the house in which the father died. This province is called Franche, but where is their freedom?
Were we to attempt to draw a line between civil authority and ecclesiastical customs, what endless disputes would ensue? In short, to what side soever we turn our eyes, we are presented with a confused scene of contradictions, uncertainty, hardships, and arbitrary power. In the present age, we seem universally aiming at perfection; let us not therefore neglect to perfect the laws, on which our lives and fortunes depend.
[* ]Post mortem nihil est, mors ipsaque nihil, etc.Seneca.
[* ] Chap. xiii.
[* ] Spon, p. 500. Guy Vances.
[* ] Boudin de Republica, lib. iii, c. 5.
[* ] See the excellent abridgement of the chronological history and laws of Germany, an. 803.