The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface of the Translator.
• Introduction.
• An Essay On Crimes and Punishments.
• Chapter I.: Of the Origin of Punishments.
• Chapter II.: Of the Right to Punish.
• Chapter III.: Consequences of the Foregoing Principles.
• Chapter IV.: Of the Interpretation of Laws.
• Chapter V.: Of the Obscurity of Laws.
• Chapter VI.: Of the Proportion Between Crimes and Punishments.
• Chapter VII.: Of Estimating the Degree of Crimes.
• Chapter VIII.: Of the Division of Crimes.
• Chapter IX.: Of Honour.
• Chapter X.: Of Duelling.
• Chapter XI.: Of Crimes Which Disturb the Public Tranquillity.
• Chapter XII.: Of the Intent of Punishments.
• Chapter XIII.: Of the Credibility of Witnesses.
• Chapter XIV.: Of Evidence and the Proofs of a Crime, and of the Form of Judgment.
• Chapter XV.: Of Secret Accusations.
• Chapter XVI.: Of Torture.
• Chapter XVII.: Of Pecuniary Punishments.
• Chapter XVIII.: Of Oaths.
• Chapter XIX.: Of the Advantage of Immediate Punishment.
• Chapter XX.: Of Acts of Violence.
• Chapter XXI.: Of the Punishment of the Nobles.
• Chapter XXII.: Of Robbery.
• Chapter XXIII.: Of Infamy, Considered As a Punishment.
• Chapter XXIV.: Of Idleness.
• Chapter XXV.: Of Banishment, and Confiscation.
• Chapter XXVI.: Of the Spirit of Family In States.
• Chapter XXVII.: Of the Mildness of Punishments.
• Chapter XXVIII.: Of the Punishment of Death.
• Chapter XXIX.: Of Imprisonment.
• Chapter XXX.: Of Prosecution and Prescription.
• Chapter XXXI.: Of Crimes of Difficult Proof.
• Chapter XXXII.: Of Suicide.
• Chapter XXXIII.: Of Smuggling.
• Chapter XXXIV.: Of Bankrupts.
• Chapter XXXV.: Of Sanctuaries.
• Chapter XXXVI.: Of Rewards For Apprehending, Or Killing Criminals.
• Chapter XXXVII.: Of Attempts. Accomplices and Pardon.
• Chapter XXXVIII.: Of Suggestive Interrogations.
• Chapter XXXIX.: Of a Particular Kind of Crimes.
• Chapter Xl.: of False Ideas of Utility.
• Chapter Xli.: of the Means of Preventing Crimes.
• Chapter Xlii.: of the Sciences.
• Chapter Xliii.: of Magistrates.
• Chapter Xliv.: of Rewards.
• Chapter Xlv.: of Education.
• Chapter Xlvi.: of Pardons.
• Chapter Xlvii.: Conclusion.
• A Commentary On the Book of Crimes and Punishments.
• Chapter I.: The Occasion of This Commentary.
• Chapter II.: Of Punishments.
• Chapter III.: On the Punishment of Heretics.
• Chapter IV.: On the Extirpation of Heresy.
• Chapter V.: Of Profanation.
• Chapter VI.: Of the Indulgence of the Romans In Matters of Religion.
• Chapter VII.: On the Crime of Preaching; and of Anthony.
• Chapter VIII.: The History of Simon Morin.
• Chapter IX.: Of Witches.
• Chapter X.: On the Punishment of Death.
• Chapter XI.: On Death Warrants.
• Chapter XII.: On Torture.
• Chapter XIII.: Of Certain Sanguinary Tribunals.
• Chapter XIV.: On the Difference Between Political and Natural Laws.
• Chapter XV.: On the Crime of High-treason. On Titus Oates, and On the Death of Augustin De Thou.
• Chapter XVI.: Of Religious Confession.
• Chapter XVII.: Of False Money.
• Chapter XVIII.: On Domestic Theft.
• Chapter XIX.: On Suicide.
• Chapter XX.: On a Certain Species of Mutilation.
• Chapter XXI.: On Confiscation.
• Chapter XXII.: On Criminal Procedure, and Other Forms.
• Chapter XXIII.: The Idea of Reformation.

CHAPTER XV.

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!