FOOTNOTES

FOOTNOTES[1]By a Cabinet Order of June 3, 1740. See Carlyle’sFrederick the Great, iii. 7.[2]Pike,History of Crime in England, ii. 283, 346.[3]Beccaria was born in 1738, and his book appeared in 1764. Therefore he was only 26. The 28 must refer to the time he wrote the letter.[4]Lettre 80.[5]I Piaceri della Immaginazione, in his collected works by Villari, p. 546.[6]Villari,Opere di Beccaria, 547.[7]It is published in the Haarlem edition of theDei Delitti, 1766.[8]The letter is in Diderot’sŒuvres, ix. 451-66.[9]See the two volumes of theirLetterepublished at Milan by Dr. C. Casati, 1880.[10]Lettere, ii. 221: ‘Il suo libro d’oro sicuro è chiuso.’[11]Lettere, ii. 150.[12]Pietro had sent some of his manuscripts to Morellet, perhaps in the hope that the latter would offer to translate them. Anyhow Beccaria brought back no compliments to Pietro from Paris, and the key to Pietro’s feelings lies in the words he wrote to his brother the day after Beccaria’s return: ‘Non mi ha detto una sillaba che mostri che alcuno sappia in Parigi, che io sono al mondo.’[13]Lettere, i. 391; ii. 70, 127, 151, 211, 295. It is satisfactory for this point to be settled, for even so lately as 1862, Sig. Cantù, in his work on Beccaria, attributes theRispostato him, saying that all the intrinsic proofs are in favour of its being his work. P. 58.[14]Ibid.ii. 159.[15]Lettere, ii. 225.[16]Morellet,Mémoires, i. 167: ‘Revenu à Milan il a fait peu de chose, et sa fin n’a pas répondu à son début, phénomène commun parmi les gens de lettres d’Italie, qui ont un premier feu bien vif, mais qui, à 25 et 30 ans, se désabusent comme Salomon et reconnaissent que la science est vanité, sans avoir attendu d’être aussi savant que lui.’[17]Cantù, Beccaria, 42.[18]In a book calledCautio Criminalis, published in 1718.[19]Jardine’sReading on Torture.[20]Tooke’sCatharine II., 441-8. Rambaud’sRussie, 476. ‘Dans l’instruction pour la confection du nouveau Code, Catharine II., suivant sa propre expression, avaitpilléles philosophes d’Occident, mais surtout Montesquieu et Beccaria.’[21]Morellet,Mémoires, i. 165.[22]General C. Lee’s Memoirs.[23]This fact rests on the authority of a gentleman of Pisa, who told it to Dr. Rush, the so-called ‘American Æsculapius,’ who wrote against capital punishment towards the end of the last century.[24]By Gustavus III. It had, however, been discontinued long before, as Beccaria speaks of it as non-existent when he wrote.[25]Turnbull’sVisit to Philadelphia Prison, 1797.[26]Times, March 1, 1880.[27]For most of the above facts the writer is indebted to the papers published by the Howard Association, kindly sent to him by the Secretary, Mr. Tallack.[28]Diodorus Siculus, i. 65: ἀντὶ γὰρ τοῦ θανάτου τοὺς καταδικασθέντας ἠνάγκαζε λειτουργεῖν ταῖς πόλεσι δεδεμένους.[29]Gibbon, c. 48: ‘During his government of twenty-five years the penalty of death was abolished in the Roman Empire.’A.D.1118-1143.[30]Beccaria doubtless got the expression from Helvetius, who used it in hisL’Esprit, i. 228, 291.[31]Vicar of Wakefield, c. 27; andCitizen of the World, letter 79. Johnson was more outspoken in theRambler, No. 114 (1751), in which he advocated the restriction of capital punishment to cases of murder.[32]Lord Kames’Historical Law Tracts.Criminal Law.1776.[33]Enquiry into the Late Increase of Robbers(1751).[34]Meredith’s speech of May 13, 1777, inParl. Deb., xix. 239.[35]Lecky’sEngland, i. 506.[36]Speech, May 11, 1810.[37]Romilly’sMemoirs, ii. 322.[38]Hansard, and Campbell’sChief Justices, iii. 233. The arguments are almost Paley’s word for word.[39]Stephen’sEnglish Criminal Law, 156, 178.[40]Sir G. Staunton’sPenal Code of China, 347, 416.[41]See several instances in Baring Gould’sCuriosities of Olden Times, in the chapter on Queer Culprits.[42]So Seneca,De Ira., i. 16: ‘Nemo prudens punit quia peccatum est, sed ne peccetur. Revocari enim præterita non possunt, futura prohibentur.’ Compareibid., ii. 31, and Plato,Laws, xi. 934A.[43]The same is the philosophy of the nursery-rhyme book:—‘That’s Jack. Lay a stick on his back.What’s he done? I cannot say.We’ll find out to-morrow, and beat him to-day.’So said also a more serious authority, Periander, tyrant of Corinth, sometimes counted among the Seven Wise Men of Greece: μὴ μόνον τοὺς ἀμαρτάνοντας άλλὰ καὶ τοὺς μέλλοντας κόλαζε. ‘Punish not only those who have done wrong, but those who are going to.’[44]Judicial Statistics, 1878, xi.[45]White’sThree Years in Constantinople, ii. 331.[46]Pierson,Aus Russland’s Vergangenheit, 31, 32.[47]See Sir G. Staunton’sPenal Code of China, lxxi. 278-9, 285, 345, 367, 381, 449, for tables apportioning punishment to different crimes according to an exact mathematical scale. There is no reason to suppose that this scale was never acted upon, even if it is not observed now, about which there is no good evidence.[48]Farinaccius: ‘Potest pro tribus furtis, quamvis minimis, pœna mortis imponi.’ The philosophy of this was, that to do anything twice was the same as doing it frequently: ‘Quod bis fit, frequenter fieri dicitur.’[49]The French have two words,récidiveandrécidiver, to signify a relapse into crime, the word being applied as a metaphor from medicine, where it means the recurrence of a disease. In English we might adopt the wordreciduousto express renewed acts of crime after punishment.[50]The figures for May 1878 are: Men, 8,983; of these only 2,064 had had no previous conviction of any kind, 4,672 had had sentences short of penal servitude, and 2,247 penal servitude sentences. Of the 1,226 women, 124 had never been convicted before, 635 had had sentences short of penal servitude, 567 penal servitude sentences.—(P.S. Report, iii. 1170. See also ii. 206, 296, 364.)[51]Penal Servitude Acts Commission, 1879, vol. iii. 1195-6.[52]Judicial Statistics, 1878, xvi. 45.[53]The same seems to be also true of France. ‘Quoi de plus important que ce fait, qu’en moyenne annuelle 30,000 crimes ou délits restent impunis parce que les auteurs en sont inconnus, et 10,000 environ parce que les charges portées contre les accusés ou prévenus ont été jugées insuffisantes.’—Legoyt,La France et l’Étranger, i. 406.[54]Hill,Crime, 28.[55]Memorials of Millbank, ii. 274-5.[56]The author ofFive Years’ Penal Servitude. With this testimony agrees thoroughly that of the Chaplain of Parkhurst Prison (P.S. Rep.iii. 707-8), that of the Governor of Portland Prison (ii. 164-5), and that of the Governor of Spike Island (iii. 814-5).[57]Penal Servitude Report, i. 43.[58]If we include offences proceeded against summarily with the indictable offences reported, about 2 per cent. of the population may be counted as dishonest.[59]Strafgesetzbuch, c. vi. 33.[60]Wheeler,Imperial Assemblage at Delhi, 1877, 124, 127.[61]Congrès pénitentiaire international.Tableau xii.[62]There is a precedent for such a law in the legislation of Leopold, Grand Duke of Tuscany: ‘Les malheureux injustement emprisonnés et reconnus innocents devaient être indemnisés au moyen d’un fonds formé par les amendes, mésure équitable et profondément humaine.’—Loiseleur,Hist. des Peines, 336.[63]Staunton’sPenal Code of China, 29.

[1]By a Cabinet Order of June 3, 1740. See Carlyle’sFrederick the Great, iii. 7.

[2]Pike,History of Crime in England, ii. 283, 346.

[3]Beccaria was born in 1738, and his book appeared in 1764. Therefore he was only 26. The 28 must refer to the time he wrote the letter.

[4]Lettre 80.

[5]I Piaceri della Immaginazione, in his collected works by Villari, p. 546.

[6]Villari,Opere di Beccaria, 547.

[7]It is published in the Haarlem edition of theDei Delitti, 1766.

[8]The letter is in Diderot’sŒuvres, ix. 451-66.

[9]See the two volumes of theirLetterepublished at Milan by Dr. C. Casati, 1880.

[10]Lettere, ii. 221: ‘Il suo libro d’oro sicuro è chiuso.’

[11]Lettere, ii. 150.

[12]Pietro had sent some of his manuscripts to Morellet, perhaps in the hope that the latter would offer to translate them. Anyhow Beccaria brought back no compliments to Pietro from Paris, and the key to Pietro’s feelings lies in the words he wrote to his brother the day after Beccaria’s return: ‘Non mi ha detto una sillaba che mostri che alcuno sappia in Parigi, che io sono al mondo.’

[13]Lettere, i. 391; ii. 70, 127, 151, 211, 295. It is satisfactory for this point to be settled, for even so lately as 1862, Sig. Cantù, in his work on Beccaria, attributes theRispostato him, saying that all the intrinsic proofs are in favour of its being his work. P. 58.

[14]Ibid.ii. 159.

[15]Lettere, ii. 225.

[16]Morellet,Mémoires, i. 167: ‘Revenu à Milan il a fait peu de chose, et sa fin n’a pas répondu à son début, phénomène commun parmi les gens de lettres d’Italie, qui ont un premier feu bien vif, mais qui, à 25 et 30 ans, se désabusent comme Salomon et reconnaissent que la science est vanité, sans avoir attendu d’être aussi savant que lui.’

[17]Cantù, Beccaria, 42.

[18]In a book calledCautio Criminalis, published in 1718.

[19]Jardine’sReading on Torture.

[20]Tooke’sCatharine II., 441-8. Rambaud’sRussie, 476. ‘Dans l’instruction pour la confection du nouveau Code, Catharine II., suivant sa propre expression, avaitpilléles philosophes d’Occident, mais surtout Montesquieu et Beccaria.’

[21]Morellet,Mémoires, i. 165.

[22]General C. Lee’s Memoirs.

[23]This fact rests on the authority of a gentleman of Pisa, who told it to Dr. Rush, the so-called ‘American Æsculapius,’ who wrote against capital punishment towards the end of the last century.

[24]By Gustavus III. It had, however, been discontinued long before, as Beccaria speaks of it as non-existent when he wrote.

[25]Turnbull’sVisit to Philadelphia Prison, 1797.

[26]Times, March 1, 1880.

[27]For most of the above facts the writer is indebted to the papers published by the Howard Association, kindly sent to him by the Secretary, Mr. Tallack.

[28]Diodorus Siculus, i. 65: ἀντὶ γὰρ τοῦ θανάτου τοὺς καταδικασθέντας ἠνάγκαζε λειτουργεῖν ταῖς πόλεσι δεδεμένους.

[29]Gibbon, c. 48: ‘During his government of twenty-five years the penalty of death was abolished in the Roman Empire.’A.D.1118-1143.

[30]Beccaria doubtless got the expression from Helvetius, who used it in hisL’Esprit, i. 228, 291.

[31]Vicar of Wakefield, c. 27; andCitizen of the World, letter 79. Johnson was more outspoken in theRambler, No. 114 (1751), in which he advocated the restriction of capital punishment to cases of murder.

[32]Lord Kames’Historical Law Tracts.Criminal Law.1776.

[33]Enquiry into the Late Increase of Robbers(1751).

[34]Meredith’s speech of May 13, 1777, inParl. Deb., xix. 239.

[35]Lecky’sEngland, i. 506.

[36]Speech, May 11, 1810.

[37]Romilly’sMemoirs, ii. 322.

[38]Hansard, and Campbell’sChief Justices, iii. 233. The arguments are almost Paley’s word for word.

[39]Stephen’sEnglish Criminal Law, 156, 178.

[40]Sir G. Staunton’sPenal Code of China, 347, 416.

[41]See several instances in Baring Gould’sCuriosities of Olden Times, in the chapter on Queer Culprits.

[42]So Seneca,De Ira., i. 16: ‘Nemo prudens punit quia peccatum est, sed ne peccetur. Revocari enim præterita non possunt, futura prohibentur.’ Compareibid., ii. 31, and Plato,Laws, xi. 934A.

[43]The same is the philosophy of the nursery-rhyme book:—‘That’s Jack. Lay a stick on his back.What’s he done? I cannot say.We’ll find out to-morrow, and beat him to-day.’So said also a more serious authority, Periander, tyrant of Corinth, sometimes counted among the Seven Wise Men of Greece: μὴ μόνον τοὺς ἀμαρτάνοντας άλλὰ καὶ τοὺς μέλλοντας κόλαζε. ‘Punish not only those who have done wrong, but those who are going to.’

[43]The same is the philosophy of the nursery-rhyme book:—

‘That’s Jack. Lay a stick on his back.What’s he done? I cannot say.We’ll find out to-morrow, and beat him to-day.’

‘That’s Jack. Lay a stick on his back.

What’s he done? I cannot say.

We’ll find out to-morrow, and beat him to-day.’

So said also a more serious authority, Periander, tyrant of Corinth, sometimes counted among the Seven Wise Men of Greece: μὴ μόνον τοὺς ἀμαρτάνοντας άλλὰ καὶ τοὺς μέλλοντας κόλαζε. ‘Punish not only those who have done wrong, but those who are going to.’

[44]Judicial Statistics, 1878, xi.

[45]White’sThree Years in Constantinople, ii. 331.

[46]Pierson,Aus Russland’s Vergangenheit, 31, 32.

[47]See Sir G. Staunton’sPenal Code of China, lxxi. 278-9, 285, 345, 367, 381, 449, for tables apportioning punishment to different crimes according to an exact mathematical scale. There is no reason to suppose that this scale was never acted upon, even if it is not observed now, about which there is no good evidence.

[48]Farinaccius: ‘Potest pro tribus furtis, quamvis minimis, pœna mortis imponi.’ The philosophy of this was, that to do anything twice was the same as doing it frequently: ‘Quod bis fit, frequenter fieri dicitur.’

[49]The French have two words,récidiveandrécidiver, to signify a relapse into crime, the word being applied as a metaphor from medicine, where it means the recurrence of a disease. In English we might adopt the wordreciduousto express renewed acts of crime after punishment.

[50]The figures for May 1878 are: Men, 8,983; of these only 2,064 had had no previous conviction of any kind, 4,672 had had sentences short of penal servitude, and 2,247 penal servitude sentences. Of the 1,226 women, 124 had never been convicted before, 635 had had sentences short of penal servitude, 567 penal servitude sentences.—(P.S. Report, iii. 1170. See also ii. 206, 296, 364.)

[51]Penal Servitude Acts Commission, 1879, vol. iii. 1195-6.

[52]Judicial Statistics, 1878, xvi. 45.

[53]The same seems to be also true of France. ‘Quoi de plus important que ce fait, qu’en moyenne annuelle 30,000 crimes ou délits restent impunis parce que les auteurs en sont inconnus, et 10,000 environ parce que les charges portées contre les accusés ou prévenus ont été jugées insuffisantes.’—Legoyt,La France et l’Étranger, i. 406.

[54]Hill,Crime, 28.

[55]Memorials of Millbank, ii. 274-5.

[56]The author ofFive Years’ Penal Servitude. With this testimony agrees thoroughly that of the Chaplain of Parkhurst Prison (P.S. Rep.iii. 707-8), that of the Governor of Portland Prison (ii. 164-5), and that of the Governor of Spike Island (iii. 814-5).

[57]Penal Servitude Report, i. 43.

[58]If we include offences proceeded against summarily with the indictable offences reported, about 2 per cent. of the population may be counted as dishonest.

[59]Strafgesetzbuch, c. vi. 33.

[60]Wheeler,Imperial Assemblage at Delhi, 1877, 124, 127.

[61]Congrès pénitentiaire international.Tableau xii.

[62]There is a precedent for such a law in the legislation of Leopold, Grand Duke of Tuscany: ‘Les malheureux injustement emprisonnés et reconnus innocents devaient être indemnisés au moyen d’un fonds formé par les amendes, mésure équitable et profondément humaine.’—Loiseleur,Hist. des Peines, 336.

[63]Staunton’sPenal Code of China, 29.

BY THEMARQUIS CESARE BECCARIA.

TRANSLATED.

‘In rebus quibuscumque difficilioribus non expectandum ut quis simul et serat et metat, sed præparatione opus est, ut per gradus maturescant.’—Bacon.

Some remnants of the laws of an ancient conquering people, which a prince who reigned in Constantinople some 1,200 years ago caused to be compiled, mixed up afterwards with Lombard rites and packed in the miscellaneous volumes of private and obscure commentators—these are what form that set of traditional opinions which from a great part of Europe receive nevertheless the name of laws; and to this day it is a fact, as disastrous as it is common, that some opinion of Carpzovius, some old custom pointed out by Clarus, or some form of torture suggested in terms of complacent ferocity by Farinaccius, constitute the laws, so carelessly followed by those, who in all trembling ought to exercise their government over the lives and fortunes of men. These laws, the dregs of the most barbarous ages, are examined in this book in so far as regards criminal jurisprudence, and I have dared to expose their faults to the directors of the public happiness in a style which may keep ata distance the unenlightened and intolerant multitude. The spirit of frank inquiry after truth, of freedom from commonplace opinions, in which this book is written, is a result of the mild and enlightened Government under which the Author lives. The great monarchs, the benefactors of humanity, who are now our rulers, love the truths expounded, with force but without fanaticism, by the obscure philosopher, who is only roused to indignation by the excesses of tyranny, but is restrained by reason; and existing abuses, for whosoever well studies all the circumstances, are the satire and reproach of past ages, and by no means of the present age or of its lawgivers.

Whoever, therefore, shall wish to honour me with his criticisms, I would have begin with a thorough comprehension of the purpose of my work—a purpose which, so far from diminishing legitimate authority, will serve to increase it, if opinion can effect more over men’s minds than force, and if the mildness and humanity of the government shall justify it in the eyes of all men. The ill-conceived criticisms that have been published against this book are founded on confused notions, and compel me to interrupt for a moment the arguments I was addressing to my enlightened readers, in order to close once for all every door against the misapprehensions of timid bigotry or against the calumnies of malice and envy.

There are three sources of the moral and political principles which govern mankind, namely, revelation, natural law, and social conventions. With regard to their principal object there is no comparison between the first and the other two, but they all resemble one another in this, that they all three conduce to the happiness of this present mortal life. To consider the different relations of social conventions is not to exclude those of revelation and natural law; rather it is the thousandfold changes which revelation and natural law, divine and immutable though they be, have undergone in the depraved mind of man, by his own fault, owing to false religions and arbitrary notions of virtue and vice, that make it appear necessary to examine, apart from all other considerations, the result of purely human conventions, expressed or implied, for the public need and welfare: this being an idea in which every sect and every moral system must necessarily agree; and it will always be a laudable endeavour, which seeks to constrain the headstrong and unbelieving to conform to the principles that induce men to live together in society. There are, then, three distinct kinds of virtue and vice—the religious, the natural, and the political. These three kinds ought never to conflict, although all the consequences and duties that flow from any one of them do not necessarily flow from the others. The natural law does not require all that revelation requires,nor does the purely social law require all that natural law requires; but it is most important to distinguish the consequences of the conventional law—that is, of the express or tacit agreements among men—from the consequences of the natural law or of revelation, because therein lies the limit of that power, which can rightly be exercised between man and man without a special mandate from the Supreme Being. Consequently the idea of political virtue may, without any slur upon it, be said to be variable; that of natural virtue would be always clear and manifest, were it not obscured by the stupidity or the passions of men; whilst the idea of religious virtue remains ever one and the same, because revealed directly from God and by Him preserved.

It would, therefore, be a mistake to ascribe to one, who only discusses social conventions and their consequences, principles contrary either to natural law or to revelation, for the reason that he does not discuss them. It would be a mistake, when he speaks of a state of war as anterior to a state of society, to understand it in the sense of Hobbes, as meaning that no obligation nor duty is prior to the existence of society, instead of understanding it as a fact due to the corruption of human nature and the want of any expressed sanction. It would be a mistake to impute it as a fault to a writer who is considering the results of the social compactthat he does not admit them as pre-existent to the formation of the compact itself.

Divine justice and natural justice are in their essence immutable and constant, because the relation between similar things is always the same; but human or political justice, being nothing more than a relation between a given action and a given state of society, may vary according as such action becomes necessary or useful to society; nor is such justice easily discernible, save by one who analyses the complex and very changeable relations of civil combinations. When once these principles, essentially distinct, become confused, there is no more hope of sound reasoning about public matters. It appertains to the theologian to fix the boundaries between the just and the unjust, in so far as regards the intrinsic goodness or wickedness of an act; to fix the relations between the politically just and unjust appertains to the publicist; nor can the one object cause any detriment to the other, when it is obvious how the virtue that is purely political ought to give place to that immutable virtue which emanates from God.

Whoever, then, I repeat, will honour me with his criticisms, let him not begin by supposing me to advocate principles destructive of virtue or religion, seeing that I have shown that such are not my principles; and instead of his proving me to be an infidel or arebel, let him contrive to find me a bad reasoner or a shortsighted politician; but let him not tremble at every proposition on behalf of the interests of humanity; let him convince me either of the inutility or of the possible political mischief of my principles; let him prove to me the advantage of received practices. I have given a public testimony of my religion and of my submission to my sovereign in my reply to the Notes and Observations; to reply to other writings of a similar nature would be superfluous; but whoever will write with that grace which becomes honest men, and with that knowledge which shall relieve me from the proof of first principles, of what character soever, he shall find in me not so much a man who is eager to reply as a peaceable lover of the truth.

Men for the most part leave the regulation of their chief concerns to the prudence of the moment, or to the discretion of those whose interest it is to oppose the wisest laws; such laws, namely, as naturally help to diffuse the benefits of life, and check that tendency they have to accumulate in the hands of a few, which ranges on one side the extreme of power and happiness, and on the other all that is weak and wretched. It is only, therefore, after having passed through a thousand errors in matters that most nearly touch their lives and liberties, only after weariness of evils that have been suffered to reach a climax, that men are induced to seek a remedy for the abuses which oppress them, and to recognise the clearest truths, which, precisely on account of their simplicity, escape the notice of ordinary minds, unaccustomed as they are to analyse things, and apt to receive their impressions anyhow, from tradition rather than from inquiry.

We shall see, if we open histories, that laws, whichare or ought to be covenants between free men, have generally been nothing but the instrument of the passions of some few men, or the result of some accidental and temporary necessity. They have never been dictated by an unimpassioned student of human nature, able to concentrate the actions of a multitude of men to a single point of view, and to consider them from that point alone—the greatest happiness divided among the greatest number. Happy are those few nations which have not waited for the slow movement of human combinations and changes to cause an approach to better things, after intolerable evils, but have hastened the intermediate steps by good laws; and deserving is that philosopher of the gratitude of mankind, who had the courage, from the obscurity of his despised study, to scatter abroad among the people the first seeds, so long fruitless, of useful truths.

The knowledge of the true relations between a sovereign and his subjects, and of those between different nations; the revival of commerce by the light of philosophical truths, diffused by printing; and the silent international war of industry, the most humane and the most worthy of rational men—these are the fruits which we owe to the enlightenment of this century. But how few have examined and combated the cruelty of punishments, and the irregularities of criminal procedures, a part of legislation soelementary and yet so neglected in almost the whole of Europe; and how few have sought, by a return to first principles, to dissipate the mistakes accumulated by many centuries, or to mitigate, with at least that force which belongs only to ascertained truths, the excessive caprice of ill-directed power, which has presented up to this time but one long example of lawful and cold-blooded atrocity! And yet the groans of the weak, sacrificed to the cruelty of the ignorant or to the indolence of the rich; the barbarous tortures, multiplied with a severity as useless as it is prodigal, for crimes either not proved or quite chimerical; the disgusting horrors of a prison, enhanced by that which is the cruellest executioner of the miserable—namely, uncertainty;—these ought to startle those rulers whose function it is to guide the opinion of men’s minds.

The immortal President, Montesquieu, has treated cursorily of this matter; and truth, which is indivisible, has forced me to follow the luminous footsteps of this great man; but thinking men, for whom I write, will be able to distinguish my steps from his. Happy shall I esteem myself if, like him, I shall succeed in obtaining the secret gratitude of the unknown and peaceable followers of reason, and if I shall inspire them with that pleasing thrill of emotion with which sensitive minds respond to the advocate of the interests of humanity.

To examine and distinguish all the different sortsof crimes and the manner of punishing them would now be our natural task, were it not that their nature, which varies with the different circumstances of times and places, would compel us to enter upon too vast and wearisome a mass of detail. But it will suffice to indicate the most general principles and the most pernicious and common errors, in order to undeceive no less those who, from a mistaken love of liberty, would introduce anarchy, than those who would be glad to reduce their fellow-men to the uniform regularity of a convent.

What will be the penalty suitable for such and such crimes?

Is death a penalty reallyuseful and necessaryfor the security and good order of society?

Are torture and tormentsjust, and do they attain theendwhich the law aims at?

What is the best way of preventing crimes?

Are the same penalties equally useful in all times?

What influence have they on customs?

These problems deserve to be solved with such geometrical precision as shall suffice to prevail over the clouds of sophistication, over seductive eloquence, or timid doubt. Had I no other merit than that of having been the first to make clearer to Italy that which other nations have dared to write and are beginning to practise, I should deem myself fortunate;but if, in maintaining the rights of men and of invincible truth, I should contribute to rescue from the spasms and agonies of death any unfortunate victim of tyranny or ignorance, both so equally fatal, the blessings and tears of a single innocent man in the transports of his joy would console me for the contempt of mankind.

From political morality, unless founded on the immutable sentiments of mankind, no lasting advantage can be hoped. Whatever law deviates from these sentiments will encounter a resistance which will ultimately prevail over it, just in the same way as a force, however slight, if constantly applied, will prevail over a violent motion applied to any physical body.

If we consult the human heart we shall therein discover the fundamental principles of the real right of the sovereign to punish crimes.

No man has gratuitously parted with a portion of his own liberty with a view to the public good; that is a chimera which only exists in romances. Each one of us would wish, if it were possible, that thecovenants which bind others should not bind himself. There is no man but makes himself the central object of all the combinations of the globe.

The multiplication of the human race, slight in the abstract, but far in excess of the means afforded by nature, barren and deserted as it originally was, for the satisfaction of men’s ever increasing wants, caused the first savages to associate together. The first unions necessarily led to others to oppose them, and so the state of war passed from individuals to nations.

Laws are the conditions under which men, leading independent and isolated lives, joined together in society, when tired of living in a perpetual state of war, and of enjoying a liberty which the uncertainty of its tenure rendered useless. Of this liberty they voluntarily sacrificed a part, in order to enjoy the remainder in security and quiet. The sum-total of all these portions of liberty, sacrificed for the good of each individually, constitutes the sovereignty of a nation, and the sovereign is the lawful trustee and administrator of these portions. But, besides forming this trust-fund, or deposit, it was necessary to protect it from the encroachments of individuals, whose aim it ever is not only to recover from the fund their own deposit, but to avail themselves of that contributed by others. ‘Sensible motives,’ were therefore wanted to divert the despotic will of the individual from re-plunging into their primitive chaos the laws of society.Such motives were found in punishments, established against transgressors of the laws; and I call themsensiblemotives, because experience has shown that the majority of men adopt no fixed rules of conduct, nor avoid that universal principle of dissolution, observable alike in the moral as in the physical world, save by reason of motives which directly strike the senses and constantly present themselves to the mind, counterbalancing the strong impressions of private passions, opposed as they are to the general welfare; not eloquence, nor declamations, nor the most sublime truths have ever sufficed to curb the passions for any length of time, when excited by the lively force of present objects.

As it, then, was necessity which constrained men to yield a part of their individual liberty, it is certain that each would only place in the general deposit the least possible portion—only so much, that is, as would suffice to induce others to defend it. The aggregate of these least possible portions constitutes the right of punishment; all that is beyond this is an abuse and not justice, a fact but not a right.[64]Punishmentswhich exceed what is necessary to preserve the deposit of the public safety are in their nature unjust; and the more just punishments are, the more sacred and inviolable is personal security, and the greater the liberty that the sovereign preserves for his subjects.

The first consequence of these principles is, that the laws alone can decree punishments for crimes, and this authority can only rest with the legislator, who represents collective society as united by a social contract. No magistrate (who is part of society) can justly inflict punishments upon another member of the same society. But since a punishment that exceeds the legally fixed limit is the lawful punishmentplusanother one, a magistrate can, under no pretext of zeal or the public good, add to the penalty already decreed against a delinquent citizen.

The second consequence is, that the sovereign, who represents society itself, can only form general laws, obligatory on all; he cannot judge whetherany one in particular has broken the social compact, for in that case the nation would be divided into two parties, one represented by the sovereign, asserting the violation of such contract; the other by the accused, denying the same. Hence the necessity of a third person to judge of the fact; in other words, of a magistrate, whose decisions shall simply consist of affirmations or denials of particular facts, and shall also be subject to no appeal.

The third consequence is this: if it were proved that the severity of punishments were simply useless (to say nothing of being directly opposed to the public good and to the very object of preventing crimes), even in that case it would be contrary not only to those beneficent virtues that flow from an enlightened reason, which prefers to rule over happy human beings than over a flock of slaves, the constant victims of timid cruelty, but it would be also contrary to justice and to the nature of the social contract itself.

There is also a fourth consequence of the above principles: that the right to interpret penal laws cannot possibly rest with the criminal judges, for thevery reason that they are not legislators. The judges have not received the laws from our ancestors as a family tradition, as a legacy that only left to posterity the duty of obeying them, but they receive them from living society, or from the sovereign that represents it and is the lawful trustee of the actual result of men’s collective wills; they receive them, not as obligations arising from an ancient oath[65](null, because it bound wills not then in existence, and iniquitous, because it reduced men from a state of society to that of a flock), but as the result of the tacit or expressed oath made to the sovereign by the united wills of living subjects, as chains necessary for curbing and regulating the disorders caused by private interests. This is the natural and real source of the authority of the laws.

Who, then, will be the rightful interpreter of the laws? Will it be the sovereign, the trustee of the actual wills of all, or the judge, whose sole functionit is to examine whether such and such a man has committed an illegal act or not?

In every criminal case a judge ought to form a complete syllogistic deduction, in which the statement of the general law constitutes themajor premiss; the conformity or non-conformity of a particular action with the law, theminor premiss; and acquittal or punishment, the conclusion. When a judge is obliged, or of his own accord wishes, to make even no more than two syllogisms, the door is opened to uncertainty.

Nothing is more dangerous than that common axiom, ‘We must consult the spirit of the laws.’ It is like breaking down a dam before the torrent of opinions. This truth, which seems a paradox to ordinary minds, more struck as they are by a little present inconvenience than by the pernicious but remote consequences which flow from a false principle enrooted among a people, seems to me to be demonstrated. Our knowledge and all our ideas are reciprocally connected together; and the more complicated they are, the more numerous are the approaches to them, and the points of departure. Every man has his own point of view—a different one at different times; so that ‘the spirit of the laws’ would mean the result of good or bad logic on the part of a judge, of an easy or difficult digestion; it would depend now on the violence of his passions, now on thefeebleness of the sufferer, on the relationship between the judge and the plaintiff, or on all those minute forces which change the appearances of everything in the fluctuating mind of man. Hence it is that we see a citizen’s fate change several times in his passage from one court to another; that we see the lives of wretches at the mercy of the false reasonings or of the temporary caprice of a judge, who takes as his rightful canon of interpretation the vague result of all that confused series of notions which affect his mind. Hence it is that we see the same crimes punished differently by the same court at different times, owing to its having consulted, not the constant and fixed voice of the laws, but their unstable and erring interpretations.

No inconvenience that may arise from a strict observance of the letter of penal laws is to be compared with the inconveniences of subjecting them to interpretation. The momentary inconvenience in the former case involves, indeed, correcting the words of the law which are the cause of the uncertainty, a task both easy and necessary; but the fatal licence of arguing, the source of so many arbitrary and venal disputes, is thereby prevented. When a fixed code of laws, which must be observed to the letter, leaves to the judge no further trouble than to inquire into the actions of citizens and to decide on their conformity to the written law; when the standard of just andunjust, which should equally direct the actions of the ignorant citizen as of the philosophical one, is not a matter of controversy but of fact; then are people no longer subject to the petty tyrannies of many men, which are all the more cruel by reason of the smaller distance that separates the sufferer from the inflictor of suffering, and which are more pernicious than the tyrannies of a single man, inasmuch as the despotism of many is only curable by that of one, and a despot’s cruelty is proportioned, not to the power he possesses, but to the obstacles he encounters. Under a fixed code of laws citizens acquire that consciousness of personal security, which is just, because it is the object of social existence, and which is useful, because it enables them to calculate exactly the evil consequences of a misdeed. It is true they will also acquire a spirit of independence, but not such a spirit as will seek to shake the laws and prove rebellious against the chief magistrates, except against such of them as have dared to apply the sacred name of virtue to a spiritless submission to their own self-interested and capricious opinions. These principles will displease those who have assumed the right to transfer to their subordinates the strokes of tyranny they themselves have suffered from their superiors. I personally should have everything to fear, if the spirit of tyranny and the spirit of reading ever went together.

If the interpretation of laws is an evil, it is clear that their obscurity, which necessarily involves interpretation, must be an evil also, and an evil which will be at its worst where the laws are written in any other than the vernacular language of a country. For in that case the people, being unable to judge of themselves how it may fare with their liberty or their limbs, are made dependent on a small class of men; and a book, which should be sacred and open to all, becomes, by virtue of its language, a private and, so to speak, a family manual.

The greater the number of those who understand and have in their hands the sacred code of the laws, the fewer will be the crimes committed; for it is beyond all doubt that ignorance and uncertainty of punishments lend assistance to the eloquence of the passions. Yet what shall we think of mankind, when we reflect, that such a condition of the laws is the inveterate custom of a large part of cultivated and enlightened Europe?

One consequence of these last reflections is, that without writing no society will ever assume a fixed form of government, wherein the power shall belong tothe social whole, and not to its parts, and wherein the laws, only alterable by the general will, shall not suffer corruption in their passage through the crowd of private interests. Experience and reason have taught us, that the probability and certainty of human traditions diminish in proportion to their distance from their source. So that if there be no standing memorial of the social contract, how will laws ever resist the inevitable force of time and passion?

From this we see how useful is the art of printing, which makes the public, and not a few individuals, the guardians of the sacred laws, and which has scattered that dark spirit of cabal and intrigue, destined to disappear before knowledge and the sciences, which, however apparently despised, are in reality feared by those that follow in their wake. This is the reason that we see in Europe the diminution of those atrocious crimes that afflicted our ancestors and rendered them by turns tyrants or slaves. Whoever knows the history of two or three centuries ago and of our own, can see that from the lap of luxury and effeminacy have sprung the most pleasing of all human virtues, humanity, charity, and the toleration of human errors; he will know what have been the results of that which is so wrongly called ‘old-fashioned simplicity and honesty.’ Humanity groaning under implacable superstition; the avarice and ambition of a few dyeing with human blood the golden chests and thrones ofkings; secret assassinations and public massacres; every noble a tyrant to the people; the ministers of the Gospel truth polluting with blood hands that every day came in contact with the God of mercy—these are not the works of this enlightened age, which some, however, call corrupt.

An error, not less common than it is contrary to the object of society—that is, to the consciousness of personal security—is leaving a magistrate to be the arbitrary executor of the laws, free at his pleasure to imprison a citizen, to deprive a personal enemy of his liberty on frivolous pretexts, or to leave a friend unpunished in spite of the strongest proofs of his guilt. Imprisonment is a punishment which, unlike every other, must of necessity precede the declaration of guilt; but this distinctive character does not deprive it of the other essential of punishment, namely, that the law alone shall determine the cases under which it shall be merited. It is for the law, therefore, to point out the amount of evidence of a crime which shall justify the detention of the accused, and his subjection to examination and punishment. For such detention there may be sufficient proofs in commonreport, in a man’s flight, in a non-judicial confession, or in the confession of an accomplice; in a man’s threats against or constant enmity with the person injured; in all the facts of the crime, and similar indications. But these proofs should be determined by the laws, not by the judges, whose decisions, when they are not particular applications of a general maxim in a public code, are always adverse to political liberty. The more that punishments are mitigated, that misery and hunger are banished from prisons, that pity and mercy are admitted within their iron doors, and are set above the inexorable and hardened ministers of justice, the slighter will be the evidences of guilt requisite for the legal detention of the suspected.

A man accused of a crime, imprisoned and acquitted, ought to bear no mark of disgrace. How many Romans, accused of the gravest crimes and then found innocent, were reverenced by the people and honoured with magisterial positions! For what reason, then, is the lot of a man innocently accused so different in our own times? Because, in the criminal system now in vogue, the idea of force and might is stronger in men’s minds than the idea of justice; because accused and convicted are thrown in confusion into the same dungeon; because imprisonment is rather a man’s punishment than his mere custody; and because the two forces which should be united are separated fromone another, namely, the internal force, which protects the laws, and the external force, which defends the throne and the nation. Were they united, the former, through the common sanction of the laws, would possess in addition a judicial capacity, although independent of that possessed by the supreme judicial power; and the glory that accompanies the pomp and ceremony of a military body would remove the infamy, which, like all popular sentiments, is more attached to the manner than the thing, as is proved by the fact that military prisons are not regarded in public estimation as so disgraceful as civil ones. There still remain among our people, in their customs and in their laws (always a hundred years, in point of merit, in arrear of the actual enlightenment of a nation), there still remain, I say, the savage impressions and fierce ideas of our ancestors of the North.

There is a general theorem which is most useful for calculating the certainty of a fact, as, for instance, the force of the proofs in the case of a given crime:—

1. When the proofs of a fact are dependent one on another—that is to say, when each single proof rests onthe weight of some other—then the more numerous the proofs are, the smaller is the probability of the fact in question, because the chances of error in the preliminary proofs would increase the probability of error in the succeeding ones.

2. When the proofs of a fact all depend equally on a single one, their number neither increases nor diminishes the probability of the fact in question, because their total value resolves itself into that of the single one on which they depend.

3. When the proofs are independent of each other—that is to say, when they do not derive their value one from the other—then the more numerous the proofs adduced, the greater is the probability of the fact in question, because the falsity of one proof affects in no way the force of another.

I speak of probability in connection with crimes, which, to deserve punishment, ought to be proved. But the paradox is only apparent, if one reflects that, strictly speaking, moral certainty is only a probability, but a probability which is called certainty, because every sensible person necessarily assents to it, by a force of habit which arises from the necessity of acting, and which is prior to all speculation. The certainty requisite for certifying that a man is a criminal is, therefore, the same that determines everyone in the most important actions of his life. The proofs of a crime may be divided into ‘perfect’ and ‘imperfect,’ the former being of such anature as exclude the possibility of a man’s innocence, and the latter such as fall short of this certainty. Of the first kind one proof alone is sufficient for condemnation; of the second, or imperfect kind, as many are necessary as suffice to make a single perfect proof; that is to say, when, though each proof taken separately does not exclude the possibility of innocence, yet their convergence on the same point makes such innocence impossible. But let it be noted that imperfect proofs, from which an accused has it in his power to justify himself and declines to do so, become perfect. This moral certainty of proofs, however, is easier to feel than to define with exactitude: for which reason I think that the best law is one which attaches to the chief judge assessors, taken by lot, not by selection, there being in this case more safety in the ignorance which judges by sentiment than in the knowledge which judges by opinion. Where the laws are clear and precise, the function of a judge consists solely in the certification of fact. If for searching out the proofs of a crime ability and cleverness are required, and if in the presentation of the result clearness and precision are essential, all that is required to judge of the result is simple and common good sense, a faculty which is less fallacious than the learning of a judge, accustomed as he is to wish to find men guilty and to reduce everything to an artificial system borrowed from his studies. Happy the nation where thelaws are not a science! It is a most useful law that everyone shall be judged by his equals, because where a citizen’s liberty and fortune are at stake those sentiments which inequality inspires should have no voice; that feeling of superiority with which the prosperous man regards the unfortunate one, and that feeling of dislike with which an inferior regards his superior, have no scope in a judgment by one’s equals. But when the crime in question is an offence against a person of a different rank from the accused, then one half of the judges should be the equals of the accused, the other half equals of the plaintiff, that so, every private interest being balanced, by which the appearances of things are involuntarily modified, only the voice of the laws and of truth may be heard. It is also in accordance with justice that an accused person should have power up to a certain point of refusing judges whom he may suspect; and if he is allowed the exercise of this power for some time without opposition, he will seem to condemn himself. Verdicts should be public, and the proofs of guilt public, in order that opinion—which is, perhaps, the only bond of society there is—may place a check on outbursts of force and passion, and that the people may say, ‘We are not slaves without defence’: a feeling which both inspires them with courage and is as good as a tribute to a sovereign who understands his real interest. I refrain from pointing out other details and precautions whichrequire similar regulations. I should have said nothing at all, had it been necessary for me to say everything.

It is a great point in every good system of laws to determine exactly the credibility of witnesses and the proofs of guilt Every reasonable man—that is, every man with a certain connection between his ideas and with feelings like those of other men—is capable of bearing witness. The true measure of his credibility is only the interest he has in speaking or in not speaking the truth; so that nothing can be more frivolous than to reject the evidence of women on the pretext of their feebleness, nothing more childish than to apply the results of real death to civil death as regards the testimony of the condemned, nothing more unmeaning than to insist on the mark of infamy in the infamous when they have no interest in lying.

Among other abuses of grammar, which have no slight influence on human affairs, that one is notable which makes the evidence of a condemned criminal null and void. ‘He isdead civilly’ say gravely the peripatetic lawyers, ‘and adead manis incapable of any action.’ In support of this silly metaphor manyvictims have been sacrificed, and it has very often been disputed with all seriousness whether the truth should not yield to judicial formulas. Provided that the testimony of a condemned criminal does not go to the extent of stopping the course of justice, why should not a fitting period be allowed, even after condemnation, both to the extreme wretchedness of the criminal and to the interests of truth, so that, by his adducing fresh matter to alter the complexion of the fact, he may justify himself or others in a new trial? Forms and ceremonies are necessary in the administration of justice, because they leave nothing to the free will of the administrator; because they give the people an idea of a justice which is not tumultuary and self-interested, but steadfast and regular; and because men, the slaves of habit and imitation, are more influenced by their feelings than by arguments. But such forms can never without fatal danger be so firmly fixed by the laws as to be injurious to truth, which from being either too simple or two complex needs some external pomp to conciliate the ignorant populace.

The credibility, therefore, of a witness must diminish in proportion to the hatred, friendship, or close connection between himself and the accused. More than one witness is necessary, because, so long as one affirms and another denies, nothing is proved, and the right which everyone has of being held innocent prevails.The credibility of a witness becomes appreciably less, the greater the atrocity of the crime imputed,[66]or the improbability of the circumstances, as in charges of magic and gratuitously cruel actions. It is more likely, as regards the former accusation, that many men should lie than that such an accusation should be true, because it is easier for many men to be united in an ignorant mistake or in persecuting hatred than for one man to exercise a power which God either has not conferred or has taken away from every created being. The same reasoning holds good also of the second accusation, for man is only cruel in proportion to his interest to be so, to his hatred orto his fear. Properly speaking, there is no superfluous feeling in human nature, every feeling being always in strict accordance with the impressions made upon the senses. In the same way the credibility of a witness may sometimes be lessened by the fact of his being a member of some secret society, whose purposes and principles are either not well understood or differ from those of general acceptance; for such a man has not only his own passions but those of others besides.

Lastly, a witness’s evidence is almost null when spoken words are construed into a crime. For the tone, the gesture, all that precedes or follows the different ideas attached by men to the same words, so alter and modify a man’s utterances, that it is almost impossible to repeat them exactly as they were spoken. Moreover, actions of a violent and unusual character, such as real crimes are, leave their traces in the numberless circumstances and effects that flow from them; and of such actions the greater the number of the circumstances adduced in proof, the more numerous are the chances for the accused to clear himself. But words only remain in the memory of their hearers, and memory is for the most part unfaithful and often deceitful. It is on that account ever so much more easy to fix a calumny upon a man’s words than upon his actions.

Palpable but consecrated abuses, which in many nations are the necessary results of a weak political constitution, are Secret Accusations. For they render men false and reserved, and whoever may suspect that he sees in his neighbour an informer will see in him an enemy. Men then come to mask their real feelings, and by the habit of hiding them from others they at last get to hide them from themselves. Unhappy they who have come to that; who, without clear and fixed principles to guide them, wander lost and confused in the vast sea of opinions, ever busied in saving themselves from the horrors that oppress them, with the present moment ever embittered by the uncertainty of the future, and without the lasting pleasures of quiet and security, devouring in unseemly haste those few pleasures, which occur at rare intervals in their melancholy lives and scarcely console them for the fact of having lived! Is it of such men we can hope to make intrepid soldiers, defenders of their country and crown? Is it among such men we shall find incorrupt magistrates, able with their free and patriotic eloquence to sustain and develop the true interests of their sovereign, ready, with the tribute they bear, tocarry to the throne the love and blessings of all classes of men, and thence to bring back to palaces and cottages alike peace and security, and that active hope of ameliorating their lot which is so useful a leaven, nay, which is the life of States?

Who can protect himself from calumny, when it is armed by the strongest shield of tyranny, secrecy? What sort of government can that ever be where in every subject a ruler suspects an enemy, and is obliged for the sake of the general tranquillity to rob each individual of its possession?

What are the pretexts by which secret accusations and punishments are justified? Are they the public welfare, the security and maintenance of the form of government? But how strange a constitution is that, where he who has force on his side, and opinion, which is even stronger than force, is afraid of every citizen! Is then the indemnity of the accuser the excuse? In that case the laws do not sufficiently defend him; and shall there be subjects stronger than their sovereign? Or is it to save the informer from infamy? What! secret calumny be fair and lawful, and an open one deserving of punishment! Is it, then, the nature of the crime? If indifferent actions, or even useful actions, are called crimes, then of course accusations and trials can never be secret enough. But how can there be crimes, that is, public injuries, unless the publicity of this example, by a public trial, be at the same timethe interest of all men? I respect every government, and speak of none in particular. Circumstances are sometimes such that to remove an evil may seem utter ruin when it is inherent in a national system. But had I to dictate new laws in any forgotten corner of the universe, my hand would tremble and all posterity would rise before my eyes before I would authorise such a custom as that of secret accusations.

It has already been remarked by Montesquieu that public accusations are more suited to republics, where the public good ought to be the citizens’ first passion, than to monarchies, where such a sentiment is very feeble, owing to the nature of the government itself, and where the appointment of officers to accuse transgressors of the law in the name of the public is a most excellent institution. But every government, be it republican or monarchical, ought to inflict upon a false accuser the same punishment which, had the accusation been true, would have fallen upon the accused.

Our laws prohibitsuggestive(leading) questions in a lawsuit: those, that is (according to the doctors of law), which, instead of applying, as they should do,to thegenusin the circumstances of a crime, refer to thespecies; those, in other words, which from their immediate connection with a crime suggest to the accused a direct answer. Questions, according to the criminal lawyers, ought, so to speak, ‘to envelop the main fact spirally and never to attack it in a direct line.’ The reasons for this method are, either that an answer may not besuggestedto the accused which may place him face to face with the charge against him, or perhaps because it seems unnatural for him directly to criminate himself. But, whichever of these reasons it may be, the contradiction is remarkable between the existence of such a custom and the legal authorisation of torture; for what interrogatory can be moresuggestivethan pain? The former reason applies to the question of torture, because pain willsuggestto a strong man obstinate silence, in order that he may exchange the greater penalty for the lesser, whilst it willsuggestto a weak man confession, in order that he may escape from present torment, which has more influence over him than pain which is to come. The other reason evidently applies too, for if aspecialquestion leads a man to confess against natural right, the agonies of torture will more easily do the same. But men are more governed by the difference of names than by that of things.

Finally, a man who, when examined, persists in an obstinate refusal to answer, deserves a punishmentfixed by the laws, and one of the heaviest they can inflict, that men may not in this way escape the necessary example they owe to the public. But this punishment is not necessary when it is beyond all doubt that such a person has committed such a crime, questions being useless, in the same way that confession is, when other proofs sufficiently demonstrate guilt And this last case is the most usual, for experience proves that in the majority of trials the accused are wont to plead ‘Not guilty.’

A contradiction between the laws and the natural feelings of mankind arises from the oaths which are required of an accused, to the effect that he will be a truthful man when it is his greatest interest to be false; as if a man could really swear to contribute to his own destruction, or as if religion would not be silent with most men when their interest spoke on the other side. The experience of all ages has shown that men have abused religion more than any other of the precious gifts of heaven; and for what reason should criminals respect it, when men esteemed as the wisest have often violated it? Too weak, because too far removed from the senses, arefor the mass of people the motives which religion opposes to the tumult of fear and the love of life. The affairs of heaven are conducted by laws absolutely different from those which govern human affairs; so why compromise those by these? Why place men in the terrible dilemma of either sinning against God or concurring in their own ruin? The law, in fact, which enforces such an oath commands a man either to be a bad Christian or to be a martyr. The oath becomes gradually a mere formality, thus destroying the force of religious feelings, which for the majority of men are the only pledge of their honesty. How useless oaths are has been shown by experience, for every judge will bear me out when I say that no oath has ever yet made any criminal speak the truth; and the same thing is shown by reason, which declares all laws to be useless, and consequently injurious, which are opposed to the natural sentiments of man. Such laws incur the same fate as dams placed directly in the main stream of a river: either they are immediately thrown down and overwhelmed, or a whirlpool formed by themselves corrodes and undermines them imperceptibly.

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