QfaritEll IttxuBraitg Hibrarg ffllljitE l^iatnrical HihrarH THE GIFT OF PRESIDENT WHITE MAIJMfA>l)|ED BY THE UNIVERSITY [N ACCORD- ANCE WITH THE PROVISIONS OF THE GIFT Date Due Am' -i-j ^^ W '-d- Ml H^ i^sa M- ^iwr^ 1943 Jt ^UN 8 1 9^9 8 } RMy 1 ^ lEinL JftN2 2 950-/- "' /950 f#(i^-^=^=®^^*** Jflfij^ i^£g^ -W .^ l iu SSf u T m~2^n Bn ^Z^mj^^.wm oHn 3 1924 030 480 242 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030480242 EOEY LEGISLATION; JEREMY BENTHAM. TEAlfSLATED YB.011 THE FfiEITCH OF EHENNE DTIMONT, El'' HILDRETH. SitcaxCa aSaitiott. LONDON: TEUBNEE & CO., 60, PATEENOSTEE EOW. MDCCCLXXI. All Eights Meservecl. VlilNTED BT WEKTBEIUER, LEA AND GO.^ FINSBURY CIRCUS. TEANSLATOE'S PREFACE "Whatevee may be tliouglit of tte Principle of Utility, when considered as tlie foundation of morals, no one now-a-days will undertake to deny that it is the only safe rule of legislation. To establish and illustrate this proposition, and to show how it ought to be, and might be carried into practice, was the aim and end of Bentham's Hfe and writings. Bacon derives his fame from the fact that he was the first who fully appreciated and formally laid down the proposition, now familiar to everybody, that experiment and observation are the only solid bases of the physical sciences. In the moral sciences, and especially in legislation, the principle of utility is the only certain guide ; and, in the estimation of an impartial posterity, Bentham. will rank with Bacon, as an original genius of the first order. Already, upon the continent of Europe, his writings have at- tained the highest reputation. In England and America, though frequently spoken of, they are little read; though they are often criticised, or sneered at, by persons who have never seen them, and who are totally ignorant of their contents. This circum- stance is easily explained. Bentham was bom and bred in Eng- land, and spent aU his life there ; but his works, in any compact a2 IV PEEFACD. and collected form, exist only in Prencii. He published many treatises in English ; but for the generality of readers they have very few attractions. He was not skilful in the art of composi- tion ; he did not possess the gift of eloquence. Though endowed ■with a great genius for investigation, he lacked the talent of com- municating his ideas. During a long life, devoted solely and assiduously to the study of jurisprudence, besides his occasional publications, he produced an immense mass of manuscripts, con- taining a fund of most valuable ideas, but unshaped, unarranged, and in a state quite unfit for publication. Fortunately for the cause of science, these materials were not left to perish ; an inter- preter, a compiler, a spokesman was found, every way worthy of the task he assumed. Dumont, a citizen of Geneva, whom political troubles had driven from his own country, after a residence of some years at St Petersburg, where he gained a high reputation as a preacher of the Keformed Church, came to London under the patronage of the Lansdowne family, and there made Bentham's acquaintance. He became his friend and disciple, was permitted to examine and to study his manuscript treatises; and, having discovered the value of this hidden treasure, he solicited the task of arranging, condensing, filling out, compiling, and translating into the French language. But Dumont's relation to the writings of Bentham will best be explained in his own words. " If, in labouring upon these manuscripts," he says,* "I had been able to confine myself to a mere translation, I should be more tranquH as to my success; but I am not in a position so fit to iuspire me with confidence. I owe it to the public not to conceal my share in this compila- tion ; I owe it to the author to declare, that he only yielded to the BoUcitations of friendship, and that he often unwilHngly - Freliminary Disoonrse to the first edition of the TreaUse on Leais- lat%on. gave up to me ■works unfinished, and sometimes materials un- formed. " In giving a general idea of my part in this undertaking, I begin with a declaration which ought to shield me from undeserved blame, as well as from the distress of unmerited praise. , I declare that I have no share, no claim of association, in the composition of these works. They belong entirely to the author, and to him alone. The more I esteem them, the more desirous am I to disavow an honour which would be a usurpation, as contrary to the faith of friendship as it is repugnant to my personal charac- ter. This declaration, which I owe to myself, would, I know, be superfluous if all readers were philosophers. Such wiU them- selves discover, amid all the diversity of these writings, the impress of one mind, — a unity of plan, an original genius, as analytic and profound in the general design as in the execution of the parts. "My labour, subaltern in its kind, has been limited to details. It was necessary to make a choice among various observations upon the same subject; to suppress repetitions; to throw light upon obscurities; to bring together aU. that appertained to the same subject ; and to fiU up those gaps which, in the hurry of composition, the author had left. I have had more to retrench than to add; more to abridge than to expand. The mass of manuscripts put into my hands was considerable. I have had much to do in attaining correctness, and preserving uniformity of style; little or nothing as respects the fundamental ideas. A profiision of riches left me only the care of economy. As manager of this great fortune I have spared no pains to realize it, and put it into circulation. " The changes I have made have varied with the manuscripts. When I have found many treatises relative to the same subject, but composed at different times and with different views, it has been necessary to reconcile them, and to incorporate them Ti PKEFACE. together, so as to form a perfect whole. The author perhaps had thrown aside some occasional composition, which now would not be interesting, or even intelligible. Unwilling that the whole should perish, I have stripped it, liie an abandoned house, of everything worth preserving. When he has delivered him- self up to abstractions too profound, to metaphysics, I do not say too subtle, but too dry, I have endeavoured to give more develop- ment to his ideas, to illustrate them by applications, by facts, by examples ; and I have allowed myself to scatter, with discretion, some ornaments. I have been obliged to write out some entire chapters, but always after hints and Uotes of the author; and the difficulty of the task would have sufficed to bring me back to a modest estimation of myself, if at any time I had been exposed to the temptation of thinking otherwise. " The author's Introduction to the Principles of Morals and Legislation, regarded by a small number of enlightened judges as one of those original productions which form an epoch and a revolution in science, in spite of its philosophical merit, and perhaps on account of that merit, produced no sensation, and remained almost unknown to the public, — though in England, more than elsewhere, a useful book may come into notice, though it does not happen to be' easy and agreeable. In using many chapters of that work to form the General Principles of Legisla- tion, I have endeavoured to avoid what prevented its success, forms too scientific, sub-divisions too much multiplied, analysis too abstract. I have translated not the words, but the ideas • I have sometimes made an abridgment, and at others a commentary, I have been guided by the advice and the hints of the author, contained in a preface, written many years after the work itself ; and I have found among his papers aU the additions of any con- sequence. " Upon considering how much this enterprise, which I thought to confine to two or three volumes, has extended by degrees, and what a vast career I have run through,* I regret that the lahour had not fallen into abler hands ; yet I am encou- raged to applaud my perseverance, convinced as I am that other- wise these manuscripts would for a long time have remained buried in their own bulk, and that the author, always rushing forward, would never have foimd the leisure nor the courage to give himself up to the ungrateful labour of a general revision. " This ardour to produce, and this indifference to publication ; this perseverance iu the severest labours ; and this disposition to abandon his work at the moment of completion, presents a sin- gularity which needs to be explained. " As soon as Bentham had discovered the great divisions, the great classifications of laws, he embraced legislation as a whole, and formed the vast project of treating it in all its parts. He considered it not as composed of detached works, but as forming a single work. He had before his eyes the general chart of the science, and after that model he framed particular charts of all its departments. Hence it foUows that the most striking pecu- liarity of his writings is their perfect correspondence. I have foimd the earlier ones full of references to works which were merely projected, but of which the divisions, the forms, the prin- cipal ideas, existed already in separate tables. It is thus that, having subjected all his materials to a general plan, each branch of legislation occupies its appropriate place, and none is to be found under two divisions. This order necessarily supposes an author who has for a long time considered his subject in all its relations ; who masters the whole of it ; and who is not in- fluenced by a puerUe impatience for renown. " I have seen him suspend a work almost finished, and com- pose a new one, only to assure himself of the truth of a single proposition which seemed to be doubtful. A problem in finance * This refers to other works of Bentham, annomioed. by Dmnont as ready for publication. has carried Tiim through, the whole of political economy. Some questions of procedure obliged him to interrupt his principal ■work till he had treated of judicial organization. This prepara- tory labour, this labour in the mines, is immense. No one can form an idea of it except by seeing the manuscripts, the cata- logues, the synoptical tables in which it is contained. " But I am not writing a panegyric. It must be confessed that the care of arrangement and correction has few attractions for the genius of Bentham. While pushed on by a creative force he feels only the pleasure of composition; when it becomes necessary to shape, to put in order, to finish, he experiences nothing but fatigue. If a work is interrupted the evil becomes irreparable ; the charm vanishes; disgust succeeds; and passion, once quenched, can only be rekindled by a new object. " This same turn of mind has prevented him from taking any part in the compilations which I now present to the public. It was rarely that I was able to obtain any explanations, or even that aid of wnich I was absolutely in need. It cost him too much to suspend the actual course of his ideas, and to return again upon qld tracks. "But it is, perhaps, to this Mnd of difficulty that I owe my perseverance. If it had been my business only to translate, I should soon have grown wearied of a task so uniform yet so diffi- cult; while the labour of a free compilation flatters by a kind of illusion, which lasts as long as it is useful, and vanishes when the work is done." Among Dumont's first publications from the manuscripts of Bentham, was the treatise of which these volumes contain a trans- lation. He afterwards brought out several other works, com- piled in the same way, and from the same sources ; and it is only ia these compilations that we find anything like a clear and complete development of the ideas of Bentham, or a fuU exposi- tion of his system of legislation. PBEPACE. IX Public attention in America is every day more and more at- tracted to the subject of Legal Eeform ; and the translator flatters himself that he mU have performed a useful and acceptable ser- vice, in restoring to its native English tongue the following treatise. It includes a vast field, never before surveyed upon any regu- lar plan, and least of aU according to such principles as Bentham has laid down. In the applioation of those principles he has, doubtless, made some mistakes ; for mistakes are of necessity inci- dent to a first attempt. But he has himself fiimished us with the means of detecting those mistakes and of correcting them. He asks us to receive nothing on his mere authority. He sub- jects everything to the test of General Utility. CONTENTS. PAGS Tbansiatoe's Peeface iii PEINCIPL-ES OE LEGISLATION, Chaptee I. The Principle of Utility 1 — n. The Ascetic Principle . . . ^- . . '. 4 — III. The Arbitrary Principle; or, the Principle of Sym- pathy and Antipathy 6 — rV. Operation of these Principles npon Legislation . . 13 — V. Pnrther Explanations. Objections Answered . . 15 — VI. The different kinds of Pleasures and Fains . . . 20 — Vll. Pains and Pleasures considered as Sanctions . . 27 — VIII. The Measure of Pleasures and Pains . . . . 31 — IX. Circumstances which Affect Sensibility ... 33 — X. Analysis of Political Good and Evil. Their Diffusion through Society 48 — XI. Eeasons for Erecting Certain Acts into Offences . . 54 — XII. The Limits which Separate Morals from Legislation . 60 — XIII. False Methods of Reasoning on the Subject of Legis- lation 66 PRINCIPL OF THE CIVIL CODE. Introduction 83 ^art jpirst. Objects op the Civii Law. Chaptbe I. Eights and Obligations ...... 93 — II. Ends of Civil Law 96 XU CONTENTS. FAGB Chaptee m. Eelations between these Ends ^ — IV. Laws relatively to Subsistence . . - ■ ■ 100 — T. Laws relatively to Abundance . . . • 101 — Tl. Pathological Propositions upon which the Good of Equality is Founded 102 — YH. OfSecurity 109 — Vm. OfProperty Ill — IX. Answer to an Objection . . . . - .113 — X. Analysis of the Evils which result from Attacks upon Property .......•■ 115 — XI. Opposition between Security and Equality . ■ 119 — XII. Means of Uniting Security and Equality . . . 122 — Xm. Sacrifice of Security to Security .... 124 — XIV. Of some Cases liable to be Contested . . . . 126 — XV. Examples of Attacks upon Security . . . .137 — XVI. Forced Exchanges 146 — XVIL Power of the Laws over Expectation . . . 148 DiSTKIBUTION OP PrOPEETY. Chaptee I. Titles which constitute Property 158 — n. Title by Consent 168 — m. Title by Succession ....... 177 — IV. Testaments 183 — V. Eights to Services. Methods of acquiring them . . 187 — VI. Community of Goods, or Tenancy in Common . . . 194 — Vii. Distribution of Loss 197 Eights and Obligations attached to severai Pktvate Conditions. Introduction . . 199 Chaptee I. Master and Servant 199 — II. Of Slavery ......... 201 — TTT. Guardian and Ward . , ..... 209 — IV. Father and Child 213 — V. OfSIarriage 215 CONTENTS. PRINCIPLES OF THE PENAL CODE. ^art Jfirgt. Op Opiencbs. iagb Introdnction 239 CHiPTER I. Clasaifioation of Offences 239 — II. Sub-division of Offences 241 — m. Some other Divisions 244 — IV. Evil of the Second Order, or Alarm .... 246 — V. Evil of tlie First Order — Its Influence on Alarm . . 247 — VI. The Influence of Intention on Alarm . . . 249 — VII. Position of the Delinquent — Its effect on Alarm . . 251 — Viil. The Influence of Motives on Alarm .... 252 — IX. Facility or Difficulty jof Preventing Offences — Their Influence on Alarm ....... 256 — X. Effect produced on Alarm by the greater or less Facility of Secrecy 257 — XI. Effect of the Delinquent's Character on Alarm . . 258 — XII. Cases in which there is no Alarm 264 — Xin. Cases in which there is no Greater Danger than Alarm 265 , — XTV. GrTounds of Justification 266 Political Remedies against the Evil or Opiences. Chaptee I. Subject of this Part 271 — II. Direct Means of Preventing Offences . . . . 272 — III. Chronic Offences 275 — IV. Supressive Eemedies for Chronic Offences . . . 277 — V. Observations on Martial Law 279 — yi. Nature of Satisfaction 280 — VII. Seasons on which the Necessity of Satisfaction is founded 281 — VIIL The different Kinds of Satisfaction . . . . 282 — IX. The Quantity of Satisfaction 283 — X. The Certainty of Satisfaction 284 — XL Pecuniary Satisfaction 286 XIV CONIENTS. PASS Chapteb XII. Restitution in Nature 288 ' — XIII. Attestatory Satisfaction . . . ' • • .291 — XIV. Honorary Satisfaction 294 — XV. Remedies for Offences against Honour . . . 305 XVI. Vindictive Satisfaction 309 — XVII. Substitutive Satisfaction ; or, Satisfection at the Expense of a Third Person . . - .310 — XVIII. Subsidiary Satisfaction at the Public Expense . . 337 ^art ©fitrtJ. Oe Punishments. C HAPTER I. Punishments whioh ought not to be inflicted . .322 — II. Proportion between Offences and Punishments . . 324 — III. Of Prescription as regards Punishments . . . 327 — IV. Mistaken Punishments, or Punishments misapplied . 329 — V. Of requiring Security for Good Behaviour . . 333 — VI. The Choice of Punishments ..... 336 — VII. The Kinds of Punishments 341 — VIII. Justification of Variety in Punishments . . . 343 — IX. Examination of some Common Punishments . . 347 — X. The Power of Pardoning 355 Part JFoun|&. Indikect Means op Preventing Opiences. Introduction 35g Chapteb I. Means of taking away the Physical Power to do Harm 362 — II. Prohibition of acquiring Knowledge whioh may be turned to a Bad Purpose 366 — III. Indirect Means of preventing the Wish to commit Offences 371 — IV. To change the Course of Dangerous Desires, and to direct the Inclinations towards Amusements con- formable to the Public Interest .... 373 — V. To satisfy certain Desires without Injury, or with the least possible Injury 3gO — VI. To avoid furnishing Encouragement to Orima. , £93 CONTENTS. XV PAGE Chaptee VII. To increase Eesponsibility in proportion as Tempta- tion increases 396 — VIII. To diminish the Sensibility to Temptation . . 397 — IX. To strenghen the Impression of Punishments upon the Imagination .*..... 399 — X. To facilitate Knowledge of the Pact of an Offence . 402 — XI, To prevent Offences by giving to many Persons an Interest to prevent them . .... 415 — XII. To facilitate the Means of recognising and finding Individuals 416 — Xin. To increase the Difficulty of Escape . . .419 — XIV". To diminish the Uncertainty of Prosecutions and Punishments 419 — XV. To prohibit Accessory Offences, in order to prevent the Principal Offence 423 — XVL Cultivation of Benevolence 427 — XVn. Employment of the Motive of Honour, or the Popu- lar Sanction 4<32 — XVIIL Employment of the Motive of Eeligion . . . 434 — XIX. Use to be made of the Power of Instruction . . 442 — XX. Use to be made of the Power of Education . . 445 — XXI^ General Precautions against Abuses of Authority . 449 — XXIL Means of diminishing the Bad Effects of Offences General Eesult a;ad Conclusion .... 467 PRINCIPLES OP LEGISLATION. CHAPTER I. The Principle of Utility. The pttblic good ought t f\^g tji e^object of the legislat or; (jeneeal UTILITT ought to be the foundation of hia rfia.snmTiP'a. in Vgnw ^ the true good of th fi c.nTnTi^^iTiity is -arhpd. r.nTisfrit.ij tes the Science of legislation ; the 5t consists in finding the means to realiz e that ggod^__^^ The principle of utility, vaguely announced, is seldom contra- dicted ; it is even looked upon as a sort of common-place in polities and morals. But this almost universal assent is only apparent. The same ideas are not attached to this principle ; the same value is not given to it ; no uniform and logical manner of reasoning results from it. To give it all the efficacy which it ought to have, that is, to make it the foundation of a system of reasonings, three conditions are necessary. First,-— -Tp pttach clear and precise ideas to the word utility, exactly the same with all who employ it. Second, — To establish the unity and the sovereignty of this principle, by rigorously excluding every other. It is nothing to subscribe to it in general; it must be admitted without any exception. Third, — To find the processes of a moral arithmetic by which, uniform results may be arrived at. 2 PEINCTPLES OF LEGHSIATION. The causes of dissent from the doctrine of utility may all be referred to two false principles, wHoh exercise an influence, some- times open and sometimes secret, upon the judgments of men. If these can be pointed out and excluded, the true principle will remain in purity and strength. These three principles are like three roads -which often cross each ot'jej, but of which only one leads to the wished-fbr desti- nation. The traveller turns often from one into another, and loses in these wanderings more than half his time and strength. The true route is however the easiest ; it has mile-stones which cannot be shifted, it has inscriptions, in a universal language, which can- not be effaced ; while the two false routes have only contradic- tory directions in enigmatical characters. But without abusing the language of allegory, let us seek to give a clear idea of the true principle, and of its two adversaries. Nature has placed man under the empire of jAeamre and of pain. "We owe to them aU our ideas ; we refer to them all our ji^ments, and all the determinations of our life. He who pre- tends to withdraw himself from this subjection knows not what he says. His only object is to seek pleasure and to shun pain, even at the very instant that he rejects the greatest pleasures or embraces paias the most acute. These eternal and irresistible sentiments ought to be the great study of the moralist and the legislator. The principle of utility subjects everything to these two motives. 'iMility is an abstract term. It expresses the property or ten- dency of a thing to prevent some evil or to procure some good. Mil is pain, or the cause of pain. G^d is pleasure, or the cause of pleasure. That, which is conformable to the utility, or the interest of an individual, is what tends to augment the total sum of his ikappinessB Thaft- wtioli h conformable to the utiHty, or the interest of a community, is what tends to augment the total sum of the happiness of the individuals that compose it. A principle is a first idea, which is made the beginning or basis of a system of reasonings. To iUustrate it by a sensible image, it is a fixed point to which the first Hnk of a chain is PEINCIPLES OP IBGISLATION. 3 attached. Such a principle must be clearly evident ; — to iUustrate and to explain it must secure its ackuo-wledgment. Such are the axioms of mathematics ; they are not proved directly ; it is enough to show that they cannot be rejected without faUing into absurdity. The logic of utility consists in setting out, in all the operations of the judgment, from the calculation or comparison of pains and pleasures, and in not allowing the interference of any other idea. I am a partisan of the principle of utility when I measure my approbation or disapprobation of a public or private act by its tendency to produce pleasure or pain ; when I employ the words jmt, wijmt, moral, immoral, good, bad, simply as coHeotive terms including the ideas of certain pains or pleasures ; it being always understood that I nse the words pain and pleasure in their ordi- nary signification, witbout inventing any arbitrary definition for the sake of excluding certain pleasures or denying the existence of certain pains. In this matter we want no refinement, no metaphysics. It is not necessary to consult Plato, nor Aristotle. Pain and pleasu/re are what everybody feels to be such — the pea- sant and the prince, the unlearned as weU as the philosopher. He who adopts the principle of utility, esteems virtue to be a good only on account of the pleasures which result from it ; he regards vice as an evil only because of the pains which it pro- duces. Moral good is good only by its tendency to produce phy- sical good. Moral evil is evil only by its tendency to produce physical evil ; but when I say physical, I mean the pains and • pleasures of the soul as well as the pains and pleasures of sense. I have in view man, such as he is, in his actual constitution. If the partisan of the principle of utility finds in the common list of virtues an action from which there results more pain than pleasure, he does not hesitate to regard that pretended virtue as a vice ; he will not sufi'er himself to be imposed upon by the general error ; he will not lightly believe in the policy of employ- ing false virtues to maintain the true. If he finds in the common list of offences some indifferent action, some innocent pleasure, he wUl not hesitate to transport B 2 PEINCIPIES OF lEGISIATION. this pretended offence into the class of lawful actions ; he will pity the pretended criminals, and wiU reserve his indignation for their persecutors. CHAPTEE II. The Ascetic Principle.* This principle is exactly the rival, the antagonist of that which we have just been examining. S^sse^wJ^ollow it have a horror of.4i3gasure s. Everythin g wtiJdi gratiiies the"seBse^:4ar-4heif view, is odi£usjad_eiiminaL_They found morality upon priva- tions, and virtue upoiLJIxa-iien ounoement oFTne' s'selfr— fe-one woid^^ttte^reverse of the partisans of utility, theyaJrprSve every- thing which tends to diminish enjoyment, they blame everything which tends to augment it. This principle has been more or less followed by two classes of men, who in other respects have scarce any resemblance, and who even affect a mutual contempt. The one class axe philosophers, the other, devotees. The ascetic philosophers, animated by the hope of applause, have flattered themselves with the idea of seem- ing to rise above humanity, by despising vulgar pleasures. They expect to be paid in reputation and in glory, for all the sacrifices which they seem to make to the severity of their maxims. The ascetic devotees are foolish people, tormented by vain terrors, Man, in their eyes, is but a degenerate being, who ought to punish himself without ceasing for the crime of being bom, and never to turn off his thoughts from that gulf of eternal misery which is ready to open beneath his feet. Still, the martyrs to these absurd opinions have, like all others, a fund of hope. Independent of the worldly pleasures attached to the reputation of sanctity, these atrabOious pietists flatter themselves that every instant of volun- tary pain here below will procure them an age of happiness in * ■■ Ascetic, by its etymology, signifies nne who exercises. It was ap- plied to the monks, to indicate their favourite practices of devotion and penitence. PEINCIPLES OF lEGISLATION. 5 another life. Thus, even the ascetic principle reposes upoMome false idea of utility. It acquired its ascendancy only through mistake.* The devotees have carried the ascetic principlp^uch further than the philosophers. The philosophical pmy has confined itself to censuring pleasures ; the religious sects have turned the infliction of pain into a duty. The stoics said that pain was not an evil ; the Jansenists maintained that it was actually a good. The philosophical party never reproved pleasures in the mass, hut only those which it called gross and sensual, while it exalted the pleasures of sentiment and the understanding. It was rather a preference for the one class, than a total exclusion of the other. Always despised or disparaged under its true name, pleasure was received and applauded when it took the titles of honowr, glory, reputation, decorum, or self-esteem, Not to be accused of exaggerating the absurdity of the ascetics, I shall mention the least imreasonable origin which can be assigned to their system. It was early perceived that the attraction of pleasure might seduce into pernicious acts ; that is, acts of which the good was not equivalent to the evil. To forbid these pleasures, in consi- deration of their bad effects, is the object of sound morals and good laws. But the ascetics have made a mistake, for they have attacked pleasure itself; they have condemned it in general; they have made it the object of a universal prohibition, the sign of a reprobate nature ; and it is only out of regard for human weakness that they have had the indulgence to grant some parti- cular exemptions. * Tliis mistake consists in representing the Deity in words, as a being of infinite benevolence, yet ascribing to him prohibitions and threats which are the attributes of an implacable being, who uses his power only to satisfy his malevolence. We might ask these ascetic theologians what life is good for, if not for the pleasures it procures ns ? — and what pledge we have for the good- ness of God in another life, if he has forbidden the enjoyment of this ? PEINCIPIES OP LEGISlATIOlf. CHAPTEE III. SEOTIOIf I. The Arlitra/ry Principle; or the Principle of Sympathy and Antipathy. This principle consists in approving or blaming by sentiment, without giving any other reason for the decision except the deci- sion itself. Hove, I hate; such is the pivot on which this prin- ciple turns. An action is judged to be good or bad, not because it is conformable, or the contrary, to the interest of those whom it affects, but because it pleases or displeases him who judges. He pronounces sovereignly; he admits no appeal; he does not think himself obliged to justify his opinion by any consideration relative to the good of society. "It is my interior persuasion ; it is my intimate conviction ; I feel it ; sentiment consults no- body ; the worse for him who does not agree with me — he is not a man, he is a monster in human shape." Such is the despotic tone of these decisions. But, it may be asked, are there men so unreasonable as to dic- tate their particular sentiments as laws, and to arrogate to them- selves the privilege of infalHbility ? What you caU the principle of sympathy and antipathy is not a principle of reasoning ; it is rather the negation, the annihilation of aU principle. A true anarchy of ideas results from it ; since every man having an equal right to give his sentiments as a muversal rule, there wiU no longer be any common measure, no ultimate tribunal to which we can appeal. Without doubt ithe absurdity of this principle is sufficiently manifest. No man, therefore, is bold enough to say openly, " I wish you to think as I do, without giving me the trouble to reason with you." Every one would revolt against a pretension so absurd. Therefore, recourse is had to diverse inventions of disguise. Despotism is veiled under some ingenious phrase. Of this the greater part of philosophical systems are a proof. One man teUs you that he has in himself something which has PEINCrPLES OE lEGISEATIOir. 7 been given him to teacli what is good and what is evil ; and this he calls either his conscience or his moral sense. Then, working at his ease, he decides such a thing to be good, such another to be bad. "Why ? Because my moral sense tells me so ; because my conscience approves or disapproves it. Another comes and the phrase changes. It is no longer the moral sense, — ^it is common sense which tells him what is good and what is bad. This common sense is a sense, he says, which be- longs to everybody ; but then he takes good care in speaking of everybody to make no account of those who do not think as he does. Another teUs you that this moral sense and this common sense are but dreams; that the understanding determines what is good and what is bad. His understanding tells him so and so ; all good and wise men have just such an understanding as he has. As to those who do not think in the same way, it is a clear proof that their imderstandingB are defective or corrupt. Another tells you that he has an eternal and immutalle rule of right, which rule commands this and forbids that ; then he retails to you his own particular sentiments, which you are obliged to receive as so many branches of the eternal rule of right. You hear a multitude of professors, of jurists, of magistrates, of philosophers, who make the law ofnatwre echo in your ears. They all dispute, it is true, upon every point of their system ; but no matter — each one proceeds with the same confident intre- pidity, and utters his opinions as so many chapters of the law of natv/re. The phrase is sometimes modified, and we find in its place, natural right, natural equity, the rights of man, &c. One philosopher undertakes to build a moral system upon what he calls truth ; according to him, the only evil in the world is lying. If you kill your father, you commit a crime, because it is a particular fashion of saying that he is not your father. Every- thing which this philosopher does not Uke, he disapproves under the pretext that it is a sort of falsehood — since it amounts to asserting that we ought to do what ought not to be done. The most candid of these despots are those who say openly, " I am one of the elect ; and God takes care to enlighten the elect 8 PEINCIPLES OF LEGISLATION. as to what is good and what is evil. He reveals himself to me, and speaks by my mouth. AU you who are in doubt, come and receive the oracles of God." AJl these systems, and many more, are at bottom only the arbitrary principle, the principle of sympathy and antipathy, masked under different forms of language. The object is, to make our opinions triumph without the trouble of comparing them with the opinions of other people. These pretended prin- ciples are but the pretext and the support of despotism, — at least of that despotism of disposition which has but too much inclination to develop itself in practice whenever it can do so with impunity. The result is, that with the purest intentions a man torments himself, and becomes the scourge of his fellows. If he is of a melancholy disposition, he falls into a sullen taci- turnity, and bitterly deplores the folly and the depravity of man. If he is of an irascible temper, he declaims furiously against aU who do not think as he does. He becomes one of those ardent persecutors who do evU in the spirit of holiness; who blow the fires of fanaticism with that mischievous activity which the persuasion of duty always gives ; and who brand with the reproach of perversity or of bad faith all who do not blindly adopt the opinions which they hold sacred. However, it is essential to observe that the principle of sym- pathy and antipathy must often coincide with the principle of utility. To love what benefits us, to hate what hurts ns, is a universal principle of the human heart. It thus happens that, from one end of the world to the other, acts beneficent or hurtful are regarded with the same sentiments of approbation ' or dislike. Morality and jurisprudence, led by this kind of instinct, have often reached the great end of utility without having a clear idea of it. But these sympathies and these anti- pathies are not a sure and invariable guide. Let a man refer his happiness or his misery to an imaginary cause, and he becomes subject to unfounded loves and unreasonable hates. Superstition, charlatanism, the spirit of sect and party, repose almost entirely upon blind sympathies and blind antipathies. PBIN'CIPLES OF LEGISLATION, 9 Incidents the most frivoloiis, — a difference in fasHon, a slight diversity of opinion, a variety in taste, are enough, to present a man to the eyes of another under the aspect of an enemy. "What is history, hut a collection of the ahsurdest animosities, the most useless persecutions ? A prince conceives an antipathy against certain men who use some indifferent expressions; he calls them Arians, Protestants, Socinians, Deists. He huilds scaffolds ; the ministers of the altar array the executioners ; the day on which the heretics perish in the flames is celehrated as a national festival. In Kussia a civil war was undertaken to settle a long controversy as to the numher of fingers which ought to he used in making the sign of the cross. The citizens of Eome and Constantinople were divided into implacable fac- tions about players, charioteers, and gladiators; and to give importance to such shameful quarrels, it was pretended that the success of the greens or of the Hues presaged abundance or famine, victories or reverses to the empire. Antipathy may sometimes be fotmd in unison with the prin- ciple of utUity ; but even then it is not a good basis of action. When a person through resentment prosecutes a robber before the tribunals, the action is certainly good, but the motive is dangerous. If it sometimes produces good actions, more often its fruits are fatal. The sole basis of action always surely good is the consideration of utility. Good is often done from other, motives ; it is never constantly done except from that considera- tion alone. Sympathy and antipathy must be subjected to it, to prevent them from becoming hurtful ; hut the principle of utility is its own regulator ; it admits no other ; and it is impossible to give that principle too great extension. To sum up ; — the ascetic principle attacks utility in front. The principle of sympathy neither rejects it nor admits it ; it pays no attention to it ; it floats at hazard between good and evil. The ascetic principle is so unreasonable, that its most senseless fol- lowers have never attempted to carry it out. The principle of sympathy and antipathy does not prevent its partisans from hav- ing recourse to the principle of utility. This last alone neither 10 PMNCn?I,ES OF lEOISIATION. asliB nor admits any exception. Qui non sub me contra me ; that which is not under me is against me ; such is its motto. Accord- ing to this principle, to legislate is an affair of observation and calculation ; according to the ascetics, it is an affair of fanaticism; according to the principle of sympathy and antipathy, it is a matter of humour, of imagination, of taste. The first method is adapted to philosophers ; the second to monks ; the third is the favourite of wits, of ordinary moralists, of men of the world, of the multitude. Section II. Causes of Antipathy. Antipathy exercises so powerful an influence over morals and legislation, that it is important to investigate the principles which give birth to it. FiEST QiLVSE:''-Jtepugnance of (Sews^.— Nothing is more common than the transition from a physical to a moral antipathy, espe- cially with feeble minds. A multitude of innocent animals suffer a continual persecution, because they have the misfortune to be thought ugly. Everything unusual has the power of exciting in us a sentiment of disgust and hatred. What is called a monster is only a being which differs a little from others of its kind. Hermaphrodites, whose sex is undetermined, are regarded with a sort of horror, only because they are rare. Second Cause. — Wounded Pride. — He who does not adopt my opinion, indirectly declares that he has but little respect for my knowledge upon the point in dispute. Such a declaration offends my self-love, and shows me an adversary in this man, who not only testifies a degree of contempt for me, but who will propa- gate that contempt in proportion as his opinion triumphs over mine. Thied Cause. — Power controlled. — Even when our vanity does not suffer, we perceive by the difference of tastes, by the resistance of opinions, by the shock of interests, that our power is Umited, that our dominion, which we desire to extend everywhere, is PHTNCIPLES op LEeiSLATIOIT. 11 bounded on every side. ' This compidsive feeling of our own weakness is a secret pain, a germ of discontent against others. FouKTH Catjsb. — Oonfldence in the future weakened or destroyed. — "We love to believe that men are such as we imagine our hap- piness requires them to be. Every act on their part which tends to diminish our confidence in them, cannot but give us a secret disgust. An example of falsehood makes us see that we cannot always rely upon what they say, or what they promise; an example of absurdity inspires a general doubt as to their reason, and consequently as to their conduct. An act of caprice, or of levity, makes us conclude that we cannot rely on their affections. FiMH Cause. — The desire of unanimity. — ITnanimity pleases us. This harmony of sentiment is the only pledge we can have, apart from our own reason, of the truth of our opinions, and of the utility of the actions founded upon those opinions. Besides, we love to dwell upon subjects to our taste ; it is a source of agreeable recollections and of pleasing hopes. The conversation of persons whose taste conforms to ours, augments this fund of pleasure, by fixing our attention upon agreeable objects, and pre- senting them to us under new points of view. Sixth Cause. — Unvy. — He who enjoys himself without doing harm to anybody, ought not, it would seem, to have enemies. Yet it may be said that his enjoyment impoverishes those who do not partake it. It is a common observation, that envy acts with most force against recent advantages, while it spares older ones. Thus it is, that the word upstart always has an injurious accep- tation. It expresses a new success ; envy adds, as accessory ideas, humbling recollections and a feigned contempt. Envy makes ascetics. The differences of age, of wealth, o f circumstances, prevent aU men from having equal enjoyments; but the severity of privation can reduce all to the same level. Envy inclines us towards rigid speculations in morals, as a means of reducing the amount of pleasures. It has been said, — and with reason, — that a man who should be born with an organ 12 PBnrcrPLES of iesisiation. of pleasure, wMch. tte rest of us do not possess, would be pur- sued as a monster. Such is the ofigiri of antipathy ; such is the colleotion of sen- timents of which it is composed. To moderate its violence, let us recollect that there is no such thing as a perfect conformity- even between two individuals ; that if we yield to this unso- ciable sentiment, it wUl always go on increasing, and will con- tract more and more the circle of our good-wiU. and of our plea- sures ; that, in general, our antipathies re-act against ourselves; that it is in our power to enfeeble, and even to extinguish them, by banishing from our minds the ideas of those objects by which they are excited. Fortunately, the causes of sympathy are con- stant and .natural, while the causes of antipathy arc accidental and transitory. Moral writers may be arranged in two classes ; those who labour to extirpate the venomous plants of antipathy ; and those who seek to propagate them. The first class are apt to be calum- niated; the others gain respect and popularity, because, under the' specious veil of morals, they are in the service of vengeance and of envy. The books which attain the most speedy celebrity, are those which the demon of antipathy has dictated, such as libels, works of party, satirical inemoirs, &c. Tehmachus did not owe its brilliant success to its morality, or to the charm of its style ; but to the general opinion that it contained a satire upon Louis XIV. and his Court. When Hume, in his History, wished to calm the spirit of party, and to treat the passions like a chemist who analyzes poisons, the mob of readers rose up against him ; they did not like to see it proved that men were rather ignorant than wicked, and that past ages, always extolled to depreciate the present, had been far more fertUe in misfortunes and crimes. Fortunate for himself, fortunate is the writer who can give himself up to these two false principles ; to him belong the field of eloquence, the employment of figures, the vehemence of style, exaggeration of expressions, and all the vulgar vocabulary of the passions. All his opinions are dogmas, eternal, immutable truths, PBINCrPI.ES OP LESISLATIOIf. 13 as immoveable as God and nature. As a writer, he exercises the power of a despot, and proscribes those who do agree with him. The partisan of the principle of utility is in a position by no means so favourable to eloquence. His means are as different as his object. He can neither dogmatize, dazzle, nor astonish. He is obliged to define aU his terms, and always to employ the same word in the same sense. He consumes a long time in getting ready, in making sure of his foundation, in preparing his instru- ments ; and he has everything to fear from that impatience which grows weary with preliminaries, and which wishes to arrive in a moment at great results. However, this slow and cautious advance is the only one which leads to the end desired ; for if the power of spreading truth among the multitude belongs to eloquence, the power of discovering it appertains only to analysis. CHAPTER IV. Operation of these principles upon Zegislation, The principle of utility has never yet been well developed, nor well followed out by any legislator ; but, as we have already mentioned, it has penetrated from time to time into laws, from its occasional alliance with the principles of sympathy and anti- pathy. The general ideas of vice and virtue, founded upon a confused perception of good and evil, have been sufficiently uni- form in every essential point ; and the early laws, without which no society can exist, have been made in conformity with these popular ideas. The ascetic principle, though embraced with warmth by its partisans in their private conduct, has never had much direct influence upon the operations of government. <7t1 tlir cniillTirj fegeEg_li:n¥iimnii'iiigp-pTiriWnf g j^pffinn npnn fl, pivi] Tyar^ fnr fhfl Sake ^f JjaiUBUOl'lIug power into the hands of those whomaninvJBs, e ible igT UT r anP f" Will" Ital ptJi'mll lu iiBe -^fr-^^^jEa^^^gown destruction. Jhese are exampi °n nf °"'"° fif ^'^ft Tiif. exalt it above the others. Each has had its enemies, who have sought to degrade it by showing its weak side, exposing its errors, and developing all the evils which have resulted from it, without making any mention of its good effects. Such is the true theory of aU those paradoxes which elevate nature against society, politics against religion, religion against nature and government, and so on. Each of these sanctions is susceptible of error, that is to say, of some applications contrary to the principle of utility. But by applying the nomenclature above explained, it is easy to indicate by a single word the seat of the evil. Thus, for example, the reproach which after the punishment of a criminal falls upon an innocent family is an error of the popular sanction. The offence of usury, that is, of receiving interest above the legal interest, is an error of the political sanction. Heresy and magic are errors of the religious sanction. Certain sympathies and antipathies are errors of the natural sanction. The first germ of mistake exists in some single sanction, whence it commonly spreads into the others. It is necessary, in all these cases, to discover the origin of the evil before we can select or apply the remedy. PEINCIPLES OF lEGISLATION. 31 CHAPTEE VIII. 7^e measure of Pleasv/res and Pains. The sole object of tte legislator is to increase pleasures and to prevent pains ; and for this purpose he ougtt to be ■well acquainted ■with their respective values. As pleasures and pains are the only instruments ■which he employs, he ought carefiilly to study their po^wer. If ■we examine the value of a pleasure, considered in itself, and in relation to a single individual, ■we shall find that it depends upon four circumstances, — 1st. Its intensity. 2nd. Its duration. 3rd. Its certainty. 4th. Its proximity. The value of a paiij depends upon the same circumstances. But it is not enough to examine the value of pleasures and pains as if they ■were isolated and independent. Pains and pleasures may have other pains and pleasures as their con- sequences. Therefore, if ■we ■wish to calculate the tendency of an act from ■which there results an immediate pain or pleasure, -we must take t^wo additional circumstances into the account, ■viz. — 5th. Its productiveness. 6th. Its purity. A productive pleasure is one ■which is likely to be follo^wed by other pleasures of the same kind. A productvoe pain is one ■which is likely to be foUo^wed by other pains of the same kind. A. pure pleasv/re is one ■which is not likely to produce pains. A pure pain is one ■which is not likely to produce pleasures. "When the calculation is to be made in relation to a collection of individuals, yet another element is necessary, — 7th. Its extent. That is, the number of persons ■who are likely to find themselves affected by this pain or pleasure. 32 PEIIfCIPEES OF LEGISLATION. Wlien we wisli to value an action, we must follow in detail aU tlie operations above indicated. These are the elements of moral calculation ; and legislation thus becomes a matter of arithmetic. The evil produced is the outgo, the ffood which results is the income. The rules of this calculation are like those of any other. This is a slow method, but a sure one; while what is called sentiment is a prompt estimate, but apt to be deceptive. It is not necessary to recommence this calculation upon every occasion. When one has become familiar with the process ; when he has acquired that justness of estimate which results from it ; he can compare the sum of good and of evil with so much promptitude as scarcely to be conscious of the steps of the calculation. It is thus that we perform many arithmetical calculations almost without knowing it. The analytical method, in all its details, becomes essential, only when some new or complicated matter arises ; when it is necessary to clear up some disputed point, or to demonstrate a truth to those who are yet unacquainted with it. This theory of moral calculation, though never clearly ex- plaiued, has always been followed in practice ; at least, iu every case where men have had clear ideas of their interest. "What is it, for example, that makes up the value of a landed estate ? Is it not the amount of pleasure to be derived from it ? and does not this value vary according to the length of time for which the estate is to be enjoyed ; according to the nearness or the distance of the moment when the possession is to begin ; according to the certainty or uncertainty of its being retained ? Errors, whether in legislation or the moral conduct of men, may be always accounted for by a mistake, a forgetfdness, or a false estimate of some one of these elements, in the calculation of good and evil. PEINCIPLES OF LEGISIAIION. 33 CHAPTEE IX, Section J. Cirowmstances which affeot Sensilility. At.t. nanKPH f^f T'lnnnirn d" Tint FT' ^^ the same pleasure to ^Ij^ al Tcauses of jain do not always prnrlnnp tho ac-mo rg^'j], J* it in ihS^I^?^ Atnevc'nL fli]il».i,.iu|^f|^i[|'f[^ """i .BisU^ I'jiis dilterence is in degree, or in kind : in degree, when the impression of a given cause upon many individuals is uniform, but unequal ; in kind, when the same cause produces opposite sensations in different individuals. This difference of sensibility depends upon certain circum- stances which influence the physical or moral condition of indi- viduals, and which, being changed, produce a corresponding change in their feelings. This is an experimental fact. Things do not affect us in the same manner in sickness and in health, in plenty and in poverty, in infancy and old age. But a view so general is not sufficient ; it is necessary to go deeper into the human heart. Lyonet wrote a quarto volume upon the anatomy of the caterpillar ; morals are in need of an investigator as patient and philosophical. I have not courage to imitate XiF^vet. t shall think it sufficient if I open a new point of view — if 1" suggest a surer method to those who wish to pursue this subject. 1st. The foundation of the whole is temperament, or the original constitution. By this word.Jim(ierstan^hat radical and primitive disposition which attends us from our birth, and which depends upon physical organization, and the nature of the soul. But although this radical constitution is the basis of all the rest, this basis lies so concealed that it is very difficult to get at it, so as to distinguish those varieties of sensibility which it produces from those which belong to other causes. It is the business of the physiologist to distinguish these tem- peraments; to follow out their mixtures; and to trace their effects. But these grounds are as yet too little known to justify the moralist or legislator in founding anything upon them. 34 PEHfOIPIES OF tESISLATION. 2iid. Health.— We can hardly define it except negatively.. It is the absence of aU sensation of pain or uneasiness of which the first seat can be referred to some part of the body. As to sensi- bihty in general, it is to be observed, that, when sick, we are less sensible to the causes of pleasure, and more so to those of pain. 3rd. Strength.— Though, connected with health, this is a sepa- rate circumstance ; since a man may be feeble compared with the average of men, and yet not be an invaUd. The degree of strength may be measured exactly enough by the weight one can lift, or in other ways. Feebleness is sometimes a negative term, signifying the absence of strength; sometimes a relative term, signifying that such an individual is not so strong as such another, with whom he is compared. 4th. Corporal Imperfections.— 1 mean some remarkable de- formity; the want of some limb or some faculty which other men enjoy. Its particular effects upon sensibility depend upon the kind of imperfection. Its general effect is, to diminish more or less agreeable impressions, and to aggravate those which are paiaful. 6th. The degree of Knowledge. — That is, the amount of ideas which an individual possesses of a nature calculated to exercise an influence upon his happiness, or that of others. The man of knowledge is he who possesses many of these important ideas ; the ignorant, he who has but few, and those few of minor importance. 6th. Strength of the Intellectual Faculties. — That is, the degree of facility in recalling ideas already acquired, or in acquiring new ones. Different qualities of mind may be referred to this head, such as exactness of memory, capacity of attention, clearness of discernment, vivacity of imagination, &c. 7th. Firmness of Soul. — This quality is attributed to a man when he is less affected by immediate pleasures or pains, than by great pleasures or great pains, which are distant or uncertain. Turenne lacked firmness of soul when he was prevailed upon by the prayers of a woman to betray a state secret. The young Lacedsemonians, who suffered themselves to be scourged to death PEINCIPIES OF 1EGISIATIDH-. 35 before tlie altar of Diana, -without uttering a single cry, proved that the fear of shame and the hope of glory had more influence over them than present pain of the most piercing kind. 8th. Perseverance. — This circumstance relates to the length of time during which a given motive acts upon the wiU with a continuous force. "We say of a man that he wants perseverance when the motive which makes him act loses aU its force without the happening of any external event, or the occurrence of any reason which ought to weaken it ; or when he is susceptible of yielding by turns to a great variety of motives. It is thus that children are delighted with playthings, yet soon grow tired ol them. 9th. The lent of Inclination. — The ideas we have previously formed of a pleasure or a pain, have a great influence upon the manner in which we are affected, when we come to experience , that pleasure or that pain. The efieot does not always answer the expectation, though it commonly does so. The pleasure which results from the possession of a woman is not to be mea- sured by her beauty, but by the passion of her lover. The incli- nations of a man being known, we can calculate with tolerable certainty the pleasure or the pain which a given event will cause him.* 10th. Notions of Sonowr. — By honour is meant that sensi- bility to pains and pleasures, which springs from the opinion oi other men ; that is, from their esteem or their contempt. The ideas of honour vary much with nations and with individuals ; so that it becomes necessary to distinguish, in the first place, the force of this motive, in the second place, its direction. 11th. Notions of Religion. — It is well known to what a degree the entire system of sensibility may be affected by reli- gious ideas. It is at the birth of a religion that its greatest effects appear. Mild nations have become bloody; pusOlanimous nations have grown bold ; slaves have regained their freedom ; ' The four following ciroumstanoeB are only sub-divisions of this head. ; they are passions — that is, inclinations, considered in reference to certain given pleasures and pains. -D 2 36 PEINCIPIES OF LEMSIATIOH-. and savages have submitted to the yoke of civilization. There is not any cause which has produced such sudden and extraor- dinary effects upon mankind. There is also an astonishiag diver- sity in the particular bias which religion gives to individuals. 12th. Sentiments of Sympathy.— 1 caU sympathy that dispo- sition which makes us find pleasure in the happiness of others, and compels us to share their pains. When this disposition extends to a single iadividual only, it is caRei friendship ; when it acts in relation to persons in pain, it is called ^% or compas- sion ; if it embraces an entire class of individuals, it constitutes what is called esprit de corps, or pa/rty spirit; if it embraces a whole nation, it is pvhlie spirit or patriotism ; if it extends to all men, it is humanity. But the kind of sympathy which plays the greatest part in common life is that which binds the affections to certain fixed individuals, such as parents, children, a husband, a wife, an inti- mate friend. Its general effect is to augment the sensibility, whether to pains or pleasures. The individual acquires more extension ; he ceases to be solitary ; he becomes collective. We see ourselves, so to speak, doubled in those we love ; and it is by no means impossible to love ourselves better in these others than in our actual self; and to be less sensible to the events which concern us, by reason of their immediate effect upon our- selves, than on account of their operation upon those connected with us ; to feel, for example, that the most bitter part of an affliction is the pain it will cause our friends, and that the greatest charm of personal success is the pleasure we shaU take in their joy. Such is the operation of sympathy. These senti- ments received and paid back, increase by communication. They may be compared to mirrors, so arranged as mutually t^' transmit the rays of light, coUect them in a common focus, and produce an increase of heat by their reciprocal reflections. The force of these sympathies is one of the reasons which has made legislators prefer married men to bachelors, and fathers of a family to those who have no children. The law has more power over those who expose a greater surface to its operations. Such PEINCIPIES OF LEGISIATION. 37 men, thiougii an interest in the happiness of those who are to succeed them, look to the future as ■well as the present ; ■while men ■who have not the same ties are satisfied ■with a transitory possession. With regard to the sympathy ■which the paternal relation pro- duces, it may be sometimes observed to act independently ot any affection, The honour acquired by the father extends to the son ; the disgrace of the son spreadsbaok to the father. The members of a family, although disunited by interest and inclination, have a common sensibility for all that appertains to the honour of each. 13th. Antipathies. — These are the reverse of those expansive and affectionate sentiments, of ■which we have been speaking. It is fortunate that the sources of sympathy are constant and natural ; they are found everywhere, at all times, and under all circumstances; ■while antipathies are accidental, and of course transitory. They vary according to times, places, events, and persons ; and they have nothing fixed nor determinate. Still, these two principles sometimes coalesce and act together. Hu- manity makes us hate the inhuman ; friendship renders us hos- tile to the adversaries of our friends ; and antipathy itself becomes a cause of union between two persons who have a common enemy. 1 4th. Folli/, or Disorder of Mind. — ^Imperfections of mind may be reduced to ignorance, feebleness, irritability, and inconstancy. What is called folly is an extraordinary degree of imperfection, as striking to all the world as the most obvious corporal defect. It not only produces all the imperfections above mentioned, and carries them to excess ; but, in addition, it gives an absurd and dangerous turn to the inclinations. The sensibility of a maniac becomes extreme upon a certain point, while in other respects it is quite benumbed. He seems to have an excessive distrust, a hurtful malignity, a cessation of every sentiment of benevolence ; he has no respect for himself nor for others ; he braves all decorum and propriety ; he is not insensible to fear, nor to good treatment — he yields to firmness 38 PEINCIPLES OP lEGISLAIION. at the same time that mildness makes him tractable ; but he has hardly any regard for the future, and can only be acted upon by immediate means. 15th. Fecunim-y Cireumstanees. — They consist of the sum total of means, compared with the sum total of wants. Means comprise, 1st, property, that which is possessed independently of labour ; 2nd, the profits of labour ; 3rd, the pecuniary aids whict we may expect from our relations and friends. JFfliw^s depend upon four circumstances: 1st. Habits of expense. "What is beyond these habits is superfluity, what is within them is privation. The greater part of our desires exist only in the recollection of some past enjoyment. 2nd. The persons with whose support we are charged, either by the laws or by opinion, children,' poor relations, old servants. 3rd. Unexpected wants. A given sum may have a much greater value at one moment than another ; if it is needed, for instance, for an important lawsuit, or for a journey upon which the fate of a family depends. 4th. Expectations of a profit, of an inheritance, &c. It is evident that the hopes of fortune, in proportion to their force, are true -yrants ; and yiat their loss may affect us almost as much as that of a pro- perty already in possession. Section II. Secondary Circumstances which affect Sensibility. Authors who have wished to account for differences of sensi- bility have ascribed them to circumstances of which no mention has yet been made, viz., sex, age, rant, education, habitual occu- pations, climate, race, government, religion — circumstances all very apparent, very easy to observe, and very convenient for explaining the different phenomena of sensibility. Still, they are but secondary circumstances ; I mean that in themselves they are not reasons, but must be explained by the circumstances described in the first section, which are here represented and combined 5 each secondary circumstance containing in itself many primary PEUfCIPLES OF LEGISLATION. 39 circumstances. As a matter of convenience, we speak of the influence of sex upon sensibility ; including in that single pkrase all the primary circumstances of strength, knowledge, firmness of soul, perseverance, ideas of honour, sentiments of sympathy, &c. Do we speak of the influence of rank ? — We mean by it a certain assemblage of primary circumstances, such as the degree of know- ledge, ideas of honour, connections of family, habitual occupations, pecuniary circumstances. It is the same with all the others. Each of these secondary circumstances may be translated by a certain number of the primary. This distinction, though essen- tial, has not yet been analyzed. Let us pass to a more particular examination. 1st. Sex. — The sensibility of women seems to be greater than that of men. Their health is more delicate. They are generally inferior in strength of body, knowledge, the intellectual faculties, and firmness of soul. Their moral and religious sensibility is more lively ; sympathies and antipathies have a greater empire over them. The honour of a woman consists more in modesty and chastity ; that of man in probity and courage. The religion of a woman more easily deviates towards superstition ; that is, towards minute observances. Her affections for her own children are stronger during their whole life, and especially during their early youth. "Women are more compassionate for those whose sufferings they see ; and the very pains they take to relieve them form a new bond of attachment. But their benevolence is locked up' in a narrower circle, and is less governed by the principle of utility. It is rare that they embrace in their affections the well- being of their country, much less that of mankind; and the interest which they take in a party depends almost always upon some private sympathy. There enters into aU their attachments and antipathies more of caprice and imagination ; while men have more regard to personal interests or public utility. Their habitual amusements are more quiet and sedentary. On the whole, woman is better fitted for the family, and man for matters out of doors. The domestic economy is best placed in the hands of the women ; the principal management of affairs in those of the men. 40 PEIlfCIPIES OP LEGISIATION. 2nd. Affe.—Each. period of life acts diiferently upon sensibility; but it is extremely difficult to state particulars, since the limits of the different ages yary with individuals, and, in fact, are arbitrary with regard to aU. In consideriag infancy, adolesc- ence, youth, maturity, decline, and decrepitude as divisions of human life, we can only speak of them vaguely, and in general, terms. The diff'erent imperfections of mind, which we have mentioned, are so striking in infancy, that it needs a vigilant and constant protection. The affections of adolescence and early youth are prompt and lively, but are seldom governed by the principle of prudence. The legislator is obliged to protect this age from the errors into which the want of experience or the vivacity of the passions are apt to lead it. As to decrepitude, in many respects it is only a return to the imperfections of infancy. 3rd. Hank. — This circumstance depends so much for its effects upon the political constitution of states, that it is almost impos- sible to announce any proposition with respect to it which is universally true. In general it may be said that the amount of sensibility is greater in the upper ranks than in the lower ; the ideas of honour in particular are more predominant. 4th. Education. — Health, strength, robustness, may be referred to physical education; to intellectual education belong 'the amount of knowledge, its kind, and, to a certain degree, firmness of soul, and perseverance ; to moral education appertain the bent of the inclinations, the ideas of honour and religion, the sentiments of sympathy, &c. To education in general may be referred the habitual occupations, amusements, attachments, habits of expense, and pecuniary resources. But when we speak of education, we ought not to forget that its influence in all these respects is so modified, either by a concurrence of external circumstances or by natural disposition, that it is often impossible to calculate its effects. 5th. Salitual occupations, whether of profit or of amusement and choice. They influence aU the other causes— health, strength, knowledge, incUnations, ideas of honour, sympathies, antipathies, fortune, &c. Thus we see common traits of character in certain PEIirCIPLES OF LEGISIATIOW. 41 professions, especially in tliose wHch. constitute a class or con- dition, sucli as ecclesiastics, soldiers, sailors, lawyers, magis- trates, &c. eth. Climate. — Formerly too much, was attributed to this cause ; it has since been underrated. "Wtat renders this examination difficult, is the circumstance that a comparison of nation with nation can only be made as to some great facts, which may be explained in different ways. It seems to be proved that in warm climates men are less strong, less robust ; they have less need to labour, because the earth is more fertUe ; they are more inclined to the pleasures o^ love, a passion which ia those latitudes mani- fests itself earlier, and with more ardour. All their sensibilities are quicker ; their imagination is more lively ; their spirit is more prompt, but less vigorous and less persevering. Their habitual occupations announce more of indolence than of activity. They have probably at their birth a physical organization less vigorous, and a temperament of soul less firm and less constant. 7th. Race. — A negro bom in Prance or England is in many respects a different being from a child of the French or EngHsh race. A Spanish chUd born iu Mexico or Peru at the hour of its birth is very different from a Mexican or Peruvian chUd. The race may perhaps have an influence upon that natural disposition, which serves as a foundation for all the rest. Afterwards it operates much more sensibly upon the moral and religious bias, upon the sympathies and antipathies. 8th. Government. — This circumstance exercises an influence of the same sort with that of education. The magistrate may be considered as a national instructor; and under a vigilant and attentive government the particular preceptor, even the father himself, is but a deputy, a substitute for the magistrate, with this difference, that the authority of the father has its limit, while that of the magistrate extends through the whole life. The influence of this cause is immense ; it extends to almost everything ; in fact, it embraces everything except temperament, race, and climate ; for even health may depend upon it in many respects, so far as relates to regulations of police, the abundance 42 PEIirCIPLES OF lEGISLATION. of provisions, and the remo^tal of apparent causes of disease. The method of education, the plan followed in the disposal of offices, and the scheme of rewards and punishments, will deter- mine in a great measure the physical and moral qualities of a nation. ,.. T Jnder a governme nt we n constituted, or onlv. w Rll a , flTnin istered, tla^D^^^iiibr-tr-bndr^QW^i^^^jtjsSL ^p s^fJTi that men -a^ Qi_e governed^j T^^^i^i^^^^rr^'^ ^^l t honour is jS55d in aet Lons more """f^^mtt^to pub lic utility. B ehgious sensibility— will be more exempt from fanaticism and intolerance, more free from superstition and servile reverence. A common sentiment of patriotism springs up. Men perceive the existence of a national interest. Enfeebled factions will see ancient rallying signs losing their~power. Jj^° pqjvtiIqt- affe ction wUl be rather - - directed towards ^^f r""fT'"'''''"'^° ^Vp ^^nwarris f>ie hea ds of a •'jiartyj ^TiH t,nwa , rds the whole county Ta-Ull I 11 I iillf]" HIT thing^e.^_Jjavate revenge wiU neither be protracted, nor will jt' spread through society; the national taste will be directed towards useful expenses, such as voyages of discovery, the per- fecting of agriculture, improvements in the sciences, and the embellishment of the country. There will be perceptible, even in the productions of human genius, a general disposition to discuss with calmness important questions of public good. 9th. Religious Profession. — We may derive from this source pretty clear indications with respect to religious sensibility, sympathy, antipathy, and the ideas of honour and virtue. In certain cases we may even judge of the intelligence, the strength or weakness of mind, and the disposition of an individual from the sect to which he belongs. I admit that it is common to profess in public, from motives of convenience or good breeding, religious opinions which are not very sincerely entertained But in these cases the influence of religious profession, though weakened, is not destroyed. Early habits, the ties of society, the power of example, continue to operate even after the prin- ciple upon which they are founded ceases to exist. The man who at heart has ceased to be a Jew, a Quaker, an PEINCrPIES OE lEGISLATIOS. 43 Anabaptist, a Calvinist, or a Lutheran, -will still be apt to retain a partiality for those of the denomination to which he nominally belongs, and a corresponding antipathy for those of every other. Section III. Fractioal application of this Theory. We cannot calculate the motion of a vessel without knowing the circumstances which influence her saiHng, such as the force of the wind, the resistance of the water, the model of the hull, the weight of the lading, &c. In like manner we cannot operate with any certainty upon a question of legislation without con- sidering all the circumstances which affect the sensibility. I confine myself here to what concerns the penal code. In aU its parts a scrupulous attention to this diversity of circumstances is necessary. 1st. To ascertain the Evil of an Offence. — The same nominal offence is not in fact the same real offence, when the sensibility of the injured individual is not the same. An action, for example, might be a serious insult to a woman, which to a man would be wholly indifferent. A corporal injury, which, if done to an invalid, would put his life in danger, would be of little com- parative consequence to a man in full health. An imputation which might ruin the honour or the fortune of one individual might do no harm to another. 2nd. To give a proper Satisfaction to the IndAoidual iryy/red. — Where the sensibility is different, the same nominal satisfaction is not the same real satisfaction. A pecuniary satisfaction for an affront might be agreeable or offensive, according to the rank of the person affronted, according to his fortime, or according to pre- vailing prejudices. Am I insulted? — my pardon, publicly asked, would be a sufficient satisfaction on the part of my superior, or my equal ; but not so on the part of my inferior. 3rd. To estimate the force of Punishments mid their Impression v^on Delinquents, — ^When the sensibility is essentially different, 44 PEIirCIPlES OF LESISLATION, the same nominal punishment is not the same real punishment. Exile is not the same thing to a young man and to an old man; to a Bachelor and to the father of a family; to an artisan who has no means of suhsistence out of his country, and to a rich man who would only find himself ohliged to change the scene of his pleasures. Imprisonment would not be an equal punishinent for a man and for a woman, for an invalid and for a person in health; for a rich man whose family would not suffer in his absence, and for one who lives only by his labour, and who would leave his children in distress. 4th. To transplant a Law from one Country to another. — The same verbal law would not be the same real law, if the sensibility of the two nations was essentially different. A law on which depends the happiness of European families, transported into Asia, would become the scourge of society. "Women in Europe are accustomed to enjoy liberty, and even a sort of domestic empire ; women in Asia are prepared by their education for the imprisonment of the seraglio, and even for servitude. Marriage is not a contract of the same kind in Europe and in the East; and, if it were submitted to the same laws, the unhappiness of all parties would certainly ensue. The same punishments, it is said, for the same offences. This adage has an appearance of justice and impartiality which seduces the superficial observer. To give it a reasonable sense, we must determine beforehand what is meant by the same punishments and the same offences. An inflexible law, a law which should regard neither age, nor fortune, nor rank, nor education, nor the moral and religious prejudices of individuals, would be doubly vicious, at once inefS.cacious and tyrannical. Too severe for one, too indulgent for another ; always failing through excess or de- ficiency; under the appearance of equality, it conceals an in- equality the most monstrous. "When a man of great wealth, and another of a moderate con- dition, are condemned in the same fine, is the punishment the same? Do they suffer the same evil? Is not the manifest inequality of this treatment rendered yet more odious by its de- PEINCTPIES OF lEGISIATION'. 45 lusive equality? And does not the law fail in its object; since tte one may lose aU his resources of living, while the other pays, and walks off in triumph ? Let a robust youth and a weak old man be both condemned to wear irons for the same number of years — a reasoner skiLftil in obscuring the most evident truths might undertake to prove the equality of this punishment ; but the people, who are little given to sophistry, the people, faithful to nature and to sentiment, would feel an internal murmuring of spirit at the sight of such injustice; and their indignation, changing its object, would pass from the criminal to the judge, and from the judge to the legislator. There are some specious objections which I do not wish to dis- semble. " How is it possible to take account of all the circum- stances which influence the sensibility ? How can we appreciate internal and secret dispositions, such as strength of mind, know- ledge, inclinations, sympathies ? How can we measure these different qualities ? The father of a family, in the treatment of his children, may consult these interior dispositions, these diver- sities of character ; but a public instructor, though charged with but a limited number of pupils, cannot do it. A legislator, who has a numerous people in view, is obliged to confine himself stiU more to general laws ; and he is bound to take CEire how he in- creases their complication by descending into particulars. If he leaves to the judges the right of varying the application of the laws according to the infinite diversity of circumstances and characters, there will be nothing to restrain them from the most arbitrary judgments. Under pretext of observing the true spirit of the legislator, the judges will make the laws an instrument of caprice or antipathy." To all this, there needs less an answer thaa an explanation ; for it is rather an objection than a decisive attack. The principle is not denied, but its application is thought to be impossible. 1st. I allow that the greater part of these differences in sensi- bility cannot be appreciated ; that it would be impossible to prove their existence in individual cases, or to measure their strength and degree. But, happily, these interior and secret dispositions 46 PEINCIFLES OF tESISLATIOlf. have certain outward and manifest indications. These are the secondary circumstances aboye enumerated, viz., sex, age, rank, race, climate, government, education, religious profession; — pal- pable and evident circumstances, which represent interior dis- positions. Thus the legislator is aided as to the most difficult point. He need not trouble himself with metaphysical or moral qualities; he may confine himseK to circumstances that are obvious. For example, he directs a given punishment to be modified, not in proportion to the sensibility of the criminal, his perseverance, his strength of mind, his knowledge, &c., but according to sex or age. It is true that presumptions drawn from these circumstances are liable to error. A child of fifteen may have more knowledge than a man of thirty; an individual woman may have more courage or less modesty than an individual man ; but these pre- sumptions are in general just enough for the avoidance of tyran- nical laws, and will be sufficient to gain for the legislator the suffirages of opinion, 2nd. These secondary circumstances are not only easy to seize, but they are few in number, and they form general classes. They furnish grounds of justification, of extenuation, or of aggra- vation. Thus the difficulty disappears, and simplicity pervades the whole. 3rd. In this there is nothing arbitrary. It is not the judge, it is the law which modifies such and such a pimishment, accord- ing to the sex, the age, the religious profession. As to other circumstances of which the examination must be absolutely left to the judge, as the more or less of derangement of mind, the more or less of strength, the more or less of fortune, the legislator, who cannot decide upon individual cases, wiU direct the tribunals by general rules, and wiU leave them a certain latitude in order that they may proportion their judgment to the particular nature of the circumstances. What is here recommended is not a Utopian idea. There has scarcely been a legislator so barbarous or so stupid, as entirely to neglect the circumstances which influence sensibility. A more PEINCrPLES OF lEGISLATIOlT. 47 or less confused feeling of them has guided the establishment of civil and political rights ; and more or less of regard to these circumstances has always been shown in the institution of punish- ments. Hence the differences which have been admitted in the case of women, children, freemen, slaves, soldiers, priests, &c. Droco seems to have been the only penal legislator who rejected all these considerations. In his view aU crimes were equal, because they vere aU violations of the law. He condemned all delinquents to death, without distinction. He confounded, he overturned all principles of human sensibility. His horrible work endured but a short time ; nor is it probable that his laws were ever literally followed. Without falling into this extreme, how many faults of the same kind hansre been committed ? I should never finish were I to cite examples. It is notorious that there have been sovereigns who have preferred to lose provinces, and to make blood flow in streams, rather than humour a particular sensibility, rather than tolerate a custom indifferent in itself, rather than respect an ancient prejudice in favour of a certain dress, or a certain form of prayer, A prince of our times,* active, enlightened, and animated by the desire of glory, and a wish to promote the happiness of his subjects, undertook to reform everything in his territories ; and, in so doing, excited aU to oppose him. On the eve of his death, recalling all the vexations he had experienced, he wished it to be inscribed upon his tomb, that he had been unfortunate in all his enterprises. It would have been well to add, for the instruction of posterity, that he had never known how to respect and to humour the prejudices, the inclinations, the sensibilities of men. When a legislator studies the human heart, when he makes provision for the different degrees, the different kinds of sensi- bility, by exceptions, limitations, and mitigations, these tempera- ments of power charm us as a paternal condescension. It is the foundation of that approval which we give to the laws, under the names, a little vague it is true, of humanity, equity, adaptation, moderation, wisdom. ' * Joseph II. of Austria. 48 PEINCIPLES OF lEGISIATIOir. We may here discover a striking analogy between -the art of the legislator and that of the physician. A catalogue of circum- stances which influence sensibility, is alike necessary to these two sciences. That which distinguishes the physician from the empiric, is an attention to everything which constitutes the par- ticular state of the individual. But it is especially in maladies of the soul, in those where the moral nature is affected, and where it is necessary to surmount injurious habits and to form new ones, that it is necessary to study everything which influ- ences the disposition of the patient. A single error here may change all the results, so that what were intended as remedies, may prove to be aggravations. CHAPTEE X. Analysis of Political Good and Evil. — Sow they are diffused through Society. It is with government as with medicine ; its only business is the choice of evils. Every law is an evil, for every law is an in- fraction of liberty. Government, I repeat it, has but the choice of evils. In making that choice, what ought to be the object of the legislator ? He ought to be certain of two things : 1st, that in every case the acts which he undertakes to prevent are really - evils ; and, 2nd, that these evils are greater than those which he employs to prevent them. He has then two things to note— ttie evil of the offence, and ,Ji«"^^33f^'^ffie-lawril¥etti-!#'the^!Baia^^ jemedy. '^ An evil seldom comes alone. A portion of evil can hardly faU upon an individual, without spreading on every side, as from a centre. As it spreads, it takes different forms. "We see an evil of one kind coming out of an evil of another kind ; we even see evil coming out of good, and good out of evil. It is important to know and to distinguish all these kinds of evil, for in this the vciy essence of legislation consists. But, happily, thfese modifi- PEINCjrPLES OF LEGISLATIOK-. 49 cations are fe-w in number, and their differences are strongly- marked. Three principal distinctions, and two sub-divisions, wiU. be enough to- solve the most difficult problems. Evil of the first order. Evil of the second order. Evil of the third order. Primitive Evil — Berivatine Evil. Immediate Evil — Consequential Evil. E<»tended Evil — Divided Evil. Permanent Evil — Evanescent Evil. These are the only new terms which it wUl be necessary to employ to express the variety of forms which evU may take. The evil resulting from a bad action may be divided into two. principal parts: — 1st, That which falls immediately upon such and such assignable individuals, I call evil of the first order ; 2nd, That which takes its origin in the first, and spreads through the entire community, or among an indefinite number of non-assign- able individuals, I call enil of the second order. Evil of the first order may be distinguished into two branches, viz., 1st, the primitive evil, which is peculiar to the individual injured, to the first sufferer — the person, for example, who is beaten or robbed ; 2nd, the derivative evil, that which falls upon certain assignable individuals, as a consequence of the primitive evil, by reason of some relation between them and the first suf- ferer, whether it be a relation of personal interest or merely of sympathy. Evil of the second order may also be distinguished iato two branches : 1st, alarm; 2nd, danger. Alarm is a positive pain, a pain of apprehension, the apprehension of suffering the same evil which we see has already fallen upon another. Danger is the probability that a primitive evil wiU produce other evils of the same kind. These two branches of evil are closely connected, yet they are so distinct as to be capable of a separate existence. There may be alarm where there is no danger, there may be danger where there is no alarm. We may be frightened at a conspiracy purely 50 PBINCIPLES OP LESISLATIOIT. imaginary ; vre may remain secure in the midst of a conspiracy ready to break out. But, commonly, alarm and danger go together, as natural effects of the same cause. The evil that has happened makes us anticipate other evils of the same kind, by rendering them probable. The evU that has happened produces danger ; danger produces alarm. A bad action is dangerous as an example ; it prepares the way for other bad actions — 1st, By sug- gesting the idea of their commission ; 2nd, By augmenting the force of temptation. Let us follow the train of thought which may pass in the mind of an individual when he hears of a successful robbery. Perhaps he did not know of this means of subsistence, or never thought of it. Example acts upon him like instruction, and gives him the first idea of resorting to the same expedient. JL^ sees fb^t" %f thing is possible, provided it be well managed ; and, executed by another, it appears to him less difficult and less perilous than it r6ally is. Example is a track which guides him along where h^ never would have dared to be the first explorer. Such an example ,- has yet another effect upon him, not less remarkable. It weakens the strength of the motives which restrain him. The fear of the laws loses a part of its force so long as the culprit remains un- punished; the fear of shame diminishes in the same degree, because he sees accomplices who afford him an assurance against the misery of being utterly despised. This is so true, that wherever robberies are ffec[uent and unpunished, they are as little a matter of shame as any other means of acquisition. The early Greeks had no scruples about them ; they are gloried in. by the Arabs of the present day. Let us apply this theory. Tou have been beaten, woundedj,| insulted, and robbed. The amount of your personal sufferings, . so far as they relate to you alone, forms the primitive evil. But , you have friends, and sympathy makes them share your pains, You have a wife, children, parents ; a part of the indignity which you have suffered, of the affront to which you have been subjected, falls upon them. Tou have creditors, and the loss you have experienced obliges them to wait. All these persons suffer a less PEnsrciPLES OF legislatiok. 61 or greater evil, derivative from yours ; and these two portions of evil, yonrs and theirs, compose together the evil of the first order But this is not all. The news of the rohhery, with all its circum stances, spreads from mouth to mouth. An idea of danger springs' up, and alarm along with it. This alarm is greater or less, according to what is known of the character of the robbers, of the personal injuries they have inflicted, of their means and their number ; according as we are near the place or distant from it ; according to our strength and courage ; according to our peculiar circumstances, such as travelling alone, or with a family, carry- ing little money with us, or being intrusted with valuable efiects. This danger and alarm constitute the evil of the second order. If the evil which has been done to you is of a nature to spread of itself — for example, if you have been defamed by an imputa- tion which envelops a class of individuals more or less nume- rous, it is no longer an evil simply private, it becomes an extended evil. It is augmented in proportion to the number of those who participate in it. If the money of which you were robbed did not belong to you, but to a society, or to the State, the loss would be a divided evil. This case differs from the former in the important circum- stance, that here, the evil is diminished in proportion to the number among whom it is shared. If, in consequence of the wound you have received, you suffer an additional evil distinct from the first, such as the abandon- ment of a lucrative business, the loss of a marriage, or the failure to obtain a profi.table situation, that is a conseqwntial evil. A permanent evil is that which, once done, cannot be remedied, such as an irreparable personal injury, an amputation, death, &c. An evanescent evil is that which may pass away altogether, such as a wound which may be healed, or a loss which may be entirely made up. These distinctions, though partly new, are far from being use- less subtilties. It is only by their means that we can appreciate the difference of malignity in different offences, and regulate accordingly the proportion of punishment. E 2 52 PRDTCIPIiES OF lEGISLATION. This analysis 'will farnish us a moral criterion, a means of decomposing human actions, as we decompose the mixed metal?, in order to discover their intrinsic value, and their precise quantity of alloy. If among bad actions, or those reputed to be so, there are some which cause no alarm, what a difference between these actions and those which do cause it ! The primitive evil affects but a single individual ; the derivative evil can extend only to a small number ; but the evil of the second order may embrace the whole of society. Let a fanatic commit an assassination on account of what he calls heresy, and the evil of the second order, especially i the alarm, may exceed many million times the evil of the first order. There is a great class of offences of which the entire evil con- sists in danger. I refer to those actions which, without injuring any particular individual, are injurious to society at large. Let us take, for an example, an offence against justice. The bad conduct of a judge, of an accuser, or a witness, causes a criminal to be acquitted. Here is doubtless an evil, for here is a danger; the danger that impunity will harden the offender, and excite him to the commission of new crimes ; the danger of encouraging:* other offenders by the example and the success of the first. StiU, it is probable that this danger, great as it is, will escape the attention of the public, and that those who by the habit of reflec- tion are capable of perceiving it, will not derive from it any ' alarm. They do not fear to see it realized upon anybody. But the importance of these distinctions can only be perceived in their development. "We shall presently- see a particular appU- eation of them. If we carry our views still further, we shaU discover another| evil, which may result from an offence. When the alarm reache8j| a certain point, and lasts a long time, the effect is not limited to the passive faculties of man; it extends to his active faculties;, it deadens them ; it throws them into a state of torpor and de- crepitude. Thus, when vexations and depredations have beeome'i, habitual, the discouraged labourer only works to save himself " from starvation; he seeks in idleness the only consolation which PEIirCIPlES OP LESISLiiTIOW. 53 his misfortunes allow ; industry fails with hope, and hrambles gain possession of the most fertile fields. This branch of e^il is the evil of the third order. Whether an evil happens by human agency, or whether it results from an event purely physical, aU these distinctions are equally applicable. Happily, this power of propagation and of difiPusion does not appertain to evil only. Good has the same prerogatives. PoUow an analogous division, and you will see coming out of a good action, a good of the first order, divisible into primitive and deriva^ tive ; and a good of the second order, which produces a certain degree of confidence and security. The good of the third order is manifested in that energy, that gaiety of heart, that ardour of action, which remuneratory motives alone iaspire. Man, animated by this sentiment of joy, finds in himself a strength which he did not suspect. The propagation of good is less rapid and less sensible than that of evil. The seed of good is not so productive in hopes as th% seed of evil is fruitful in alarms. But this difference is abun- dantly made up, for good is a necessary result of natural causes which operate always ,» while evil is produced only by accident, and at intervals. Society is so constituted that, in labouring for our particular good, we labour also for the good of the whole. "We cannot augment our own means of enjoyment vrithout augmenting also the means of others. Two nations, like two individuals, grow rich by a mutual commerce ; and all exchange is founded upon reciprocal advantages. It is fortunate also that the effects of evil are not always evil. They often assume the contrary quality. Thus, juridical punish- ments applied to offences, although they produce an evil of the first order, are not generally regarded as evils, because they pro- duce a good of the second order. They produce alarm and danger, — but for whom ? Only for a class of evil-doers, who are volun- tary sufi'erers. Let them obey the laws, and they wiU be exposed neither to danger nor alarm. 54 PEINCIPIES OF IBGISLATIOJT. "We should never be able to subjugate, however imperfectly, the vast empire of evil, had we not learned the method of com- bating one evil by another. It has been- necessary to enlist auxiliaries among pains, to oppose other pains which attack us on every side. So, in the art of curing pains of another sort, poisons weU applied have proved to be remedies. CHAPTEE XI. Reasons for erecting certain Acts into Offences. "We have made an analysis of evil. That analysis shows us that there are acts from which there results more of evil than of good. It is acts of this nature, or at least acts reputed to be such, that legislators have prohibited. A prohibited act is what we call an offerbce. To cause these prohibitions to be respected, it is neces- sary to establish punishments. . But is it necessary to erect certain acts into offences ? or, in other words, is it necessary to subject them to legal punishments?- What a question! Is not all the world agreed on this matter? "Why seek to prove a truth universally acknowledged, and so firmly rooted in the minds of men ? Doubtless, all the world is agreed upon this matter. But on what is their agreement founded ? Ask his reasons of every man who assents, and you will see a strange diversity of sentiments i and principles ; and that not only among the people, but among philosophers. Will it be a waste of time to seek out some uniform basis of consent upon a subject so important ? The agreement which actually exists is only founded upon prejudices, which vary according to times and places^ customs and opinions. I have always been told that such an action is a crime, and I think that it is so ; such is the guide of the people, and even of legislators. But, if usage has erected innocent actions into crimes ; if it has made trifling offences to be considered as grave ones, and grave ones as trifling ; if it has varied every- where, it is plain that usage ought to be subjected to some rule, PEINCIPLES OP lEGISLATIOIf. 55 and ought not to be taken as a rule itself. Let us appeal, then, to the principle of utUity. It wiU confirm the decrees of prejudice when they are just ; it mil annul them when they are wrong. I suppose myself a stranger to all the common appellations of vice and virtue. T am called upon to consider human actions only with relation to their good or bad effects. I open two accounts ; I pass to the account of pure profit all the pleasures, I pass to the account of loss all the pains. I faithfully weigh the interests of all parties. The man whom prejudice brands as vicious, and he whom it extols as virtuous, are, for the moment, equal in my eyes. I wish to judge prejudice itself; to weigh all actions in a new balance, in prder to form a catalogue of those which ought to be permitted, and of those which ought to be forbidden. This operation, which appears at first so compli- cated, is rendered easy by the distinction between evUs of the first, second, and third orders. Am I to examine an act which attacks the security of an individual ? I compare all the pleasure, or, in other words, all the profit, which results to the author of the act, with all the evil, or all the loss, which results to the party injured. T see at once that the evil of the first order surpasses the good of the first order. But T do not stop there. The action under consideration produces throughout society danger and alarm. The evil which at first was only individual spreads everywhere, under the form of fear. The pleasure resulting from the action belongs solely to the actor ; the pain reaches a thousand— ten thousand — all. This disproportion, already prodigious, appears iufinite upon passing to the evil of the third order, and considering that, if the act in question is not suppressed, there will result from it a universal and durable discouragement, a cessation of labour, and, at last, the dissolution of society. I will now run through the strongest of our desires, those whose satisfaction is accompanied with the greatest pleasures ; and we shall see that, when brought about at the expense of security, their gratification is much more fertile in evil than in good. I. In the first place let us consider the passion of hatred. 56 PalNCIPLES OP LEGISLATION. Tiis is the most fruitfiil cause of assaults upon the honour and the person. I have conceived, no matter why, an enmity against you. Passion bewilders me. I insult you; I humble you; I ■wound you. The sight of your pain makes me experience, at least for a time, a feeling of pleasure. But, even for that time, can it be beheved that the pleasure which I taste is equivalent to the pain you suffer? If every atom of your pain separately painted itself in my soul, is it probable that each corresponding atom of my pleasure would appear to have an equal intensity ? In fact, only some scattering atoms of your pain present them- selves to my troubled and disordered imagination. Eor you,- none is lost; for me, the greater part is completely thrown away. But this pleasure, such as it is, soon betrays its natural impuiity. Humanity, a principle not to bei entirely quenched, even in the most savage souls, wakes up a secret remorse. Fears of every kind, the fear of vengeance on your part, or on the part of those connected with you; fear of public disapprobation; and, if any sparks of religion are left to me, religious fears; — fears of all kinds come to trouble my security and to disturb my triumph. Passion has died away, the pleasure of its gratification vanishesi and an inward reproach succeeds. But on your side the pain still continues, and may have a long duration. This is the case, even with trifling wounds, which time may cicatrize. How will it be when the injury is incurable in its nature ? — when limbs have been maimed, features disfigured, or faculties destroyed? Weigh the evils — their intensity, their duration, their conse- quences ; measure them under all their dimensions, and you will see fbgiJTfHvt^iy at^rwo-tbp. p1fi!j,sige"r34BJiEr ior to t he pain. Let us now pa^io the effects of the second order. TEengws of your misfortune instils the poison of feai" into every soul. Every man who has an enemy, or who may have an enemy, con- templates with terror what the , passion of hate may inspire.?' Among feeble beings, who have so much to dispute about, and so many causes of mutual envy, among whom a thousand little rivalries excite as many causeless hostilities, the spirit of revenge holds forth a succession of endless evils. PKINCIPrES OF lEGISLATIOSr. 57 Thus, every act of cruelty produced by a passion, the principle of wliich. exists in every heart, and from which everybody is exposed to suffer, creates an alarm, which will continue until the punishment of the culprit has transferred the,-daiiger4o the side of injustice, and of cruel enmity. This; alarm is a suffering common to all ; and there is another suffering resulting from it, which we ought not to forget,— that pain of sympathy felt by generous hearts at the sight- of such aggressions. II. If we examine the actions which may spring from that im- perious motive, that desire to which nature has intrusted the per- petuation of the species, we shall see that, when it attacks the security of the person, or of the domestic condition, the good which results from its gratification cannot be compared to the evil it produces. I speak here only of that attack which manifestly compromits the security of the person, viz., ravishment. It is useless by a gross and puerile pleasantry to deny the existence of this crime, or to diminish the horror of it. "Whatever may be said, it is certain that women the most prodigal of their favours do not love to have them snatched by a brutal fury. But, in this case, the greatness of the alarm renders aU discussion of the primitive evil unnecessary. However it may be of the actual offence, the possible offence will always be an object of terror. The more universal the desire which gives rise to this offence, the greater and more violent is the alarm- In times when the laws have not had sufB.cient power to repress it, when manners have not been sufliciently regulated to brand it, it produced acts of vengeance of which history has preserved the recollection. "Whole nations have interested themselves in the quarrel ; and hatreds originating in this source have been transmitted from fathers to their children. It is possible that the close confinement of women, unknown among the Greeks in the time of Homer, owes its origin, to an epoch of troubles and revolutions, when the feebleness of the laws had multiplied disorders of this kind, and spread a general terror. III, "With respect to the motive of cupidity, — if we compare 58 PEINCIPIES OE LEGISLATION. the pleasure of acquiring by a violation of another's rights with the pain which such a proceeding occasions, they will not prove to be equivalents. It is true there are cases in which, if we con- fine ourselves to the effects of the first order, the good will have an incontestable preponderance over the evil. "Were the offence considered only under this point of view, it would not be easy to assign any good reasons to justify the rigour of the laws. Every- thing depends upon the evil of the second order ; it is this which gives to such actions the character of crime, and which makes punishment necessary. Let us take, for example, the physical desire of satisfying hunger. Let a beggar, pressed by hunger, steal fi-om a rich man's house a loaf, which perhaps saves him from starving, — can it be possible to compare the good which the thief acquires for himself, with the evil which the rich man suffers ? The same is true of less striking examples. Let a man pillage the public treasury ; he enriches himself and impoverishes nobody. The wrong which he does to individuals is reduced to impalpable parts. It is not on account of the evil of the first order that it is necessary to erect these actions into offences, but on account of the evil of the second order. J^jfee-pteasaiie , which attends the satisfaction o ^^ffB'eb^.pQwerfnl flpsires- as hatred, ^ th e sexual appe tite, and hunger, when t hat s^ ttsfactiop •m ^° ^"ii'gter jo the interests of othCTS,, js Tinf, pgnaT^ ^SB pain- which it causes, the disproportion will appear much The desire of self-preservation is" thy Ullly Uliu -beside which seems to demand a separate examination. If the question relates to an evil which the laws themselves seek to impose upon an individual, this can only be for some very pressing reason, such as the necessity of carrying into execution punishments ordained by the tribunals, punishments without which there would be no security and no government. Now, if the desire of escaping an evil of this sort be gratified, the law, to the same extent, wiH be rendered inefficient. It appears, then, that the evil resulting from this satisfaction is that which results from the inefficiency of the laws, or, what amounts to the same PEINCIPLES OP LEGISLATION. 59 thing, from the non-existence of laws. But the evil ■which results from the non-existence of laws is, in fact, an assemblage of all the different evils which the laws are established to prevent ; that is to say, of all the evils which men are liable to experience on the part of other men. It is true that a single triumph over the laws, obtained in this way by an individual, is not sufficient to shake the whole system ; nevertheless, every example of this Mnd is a symptom of weakness, a step towards destruction. There results, then, from it an evil of the second order, an alarm, at least a danger ; and, if the laws connive at this evasion, they will do it in contradiction to their own aim. In order to escape one evil, they will admit another, much more than its equivalent. There remains the case in which an individual repels an evil to which the laws have not chnseTi tn snl^jf^n^ him. If they have not cliosen to subject him t o it, they do not, w iaTi liiTn ^n RuhnriiF' Mi( Til, i.iiui Miiu mill |[^ I'Wit a ^ood. It is possible that, in making efforts to preserve hi mself from i t, the individual in f^iiqitiVn Tnnj nn p^i pvii more ikan equiva lent to this good. Is the evil he does in his own defence confine d in 'Wh'a'f "''*'" ^!''''n*Wfy-- ; J3f^at object, or does it go bey "r'^ ^ TJPTiaf. in tliPprnporHnn nf j ^e^evii wnicn hp ftnp° ^" ^''° "'^^ hn f^yo^'da? Tsit equ al, greater, or less ? Would the evil he has avoided have been suscep'tilDie of " cumiJun saLluu if, iiit.l. e .!»l uf ilLfm d mff h i imaolf .. by i :nTOeB;--esG^t^by puniSmeHts.- Jfow these punishments are so many evils, which are not justifiable except so far as there results from them a greater sum of good. But, in. many cases in which we might desire to strengthen a moral precept by a punishment, the gaLrf- the punishment w ould_be_ preater-than the evil of the offence. The gaeans necessary to carry the law into execution would be of aj3gtMetoj!preagjhtaagJi.£QCigfc^ uf al ai m iiiui ' b llij liH ous uian the evil intended to be prevented. ^^^^2M:^jEiESalJaJioii_is often arreslEe'aijy^ :danger gf jossaewfefete-- ingJtbaJR&peent in seeking to punish the^ji^ty. ^ Whence comes this danger ? Prom the difilculty of defining an offence, and giving a clear and precise idea of it. For example, hard-hearted- ness, ingratitude, perfidy, and other vices which the popular PEINCIPLES OP lEGISLATIOir. 61 sanction pnnislies, cannot come under the power of tte law, nnlesa they are defined as exactly as theft, hondcide, or perjury. But, the hetter to distinguish the true limits of morals and legislation, it wiU be well to refer to the common classification of moral duties. Private morality regulates the actions of men, either in that part of their conduct in which they alone are interested, or in that which may afiept the interests of others. The actions which afiect a man's individual interest compose a class called, perhaps improperly, duties to ourselves ; and the quality or disposition manifested in the accomplishment of those duties receives the name of prudence. That part of conduct which relates to others composes a class of actions called duties to others. If ow there are two ways of consulting the happiness of others ; the one negative, abstaining from diminishing it ; the other positive, labouring to augment it. The first constitutes probity ; the second is henefi- cence. Morality upon these three points needs the aid of the law,* but not in the same degree, nor in the same manner. I. The rules of prudence are almost always suflScient of them- selves. I>ta man fails in what regards his particular private int erest, it iBnot"iiis~w i3 ]rwMgh" tg~mTault, if isTTs understand- ^g. If he does wrong, it can only belEBTOugh mistafeST TKe ~ fea5~5f-hurting himself is a motive of repression sufficiently strong ; it would be useless to add to it the fear of an artificial pain. Does any one object, that facts show the contrary? That excesses "of play, those of intemperance, the illicit intercourse between the sexes, attended so often by the greatest dangers, are enough to prove that individuals have not always sufficient prudence to abstain from what hurts them ? Confining myself to a general reply, I answer, in the first place,- that, Lt L.the greater part of the s e caseSupunishm ent would be so ea^y eluded , tha t it would be in efficacious jjec'ohdlYr "tK^t the -■frjrliig'TeHtd'lfew^^^dA-Aft.mafij], hpyiSOU^grfl of the offence. 62 PEITrOIPLES OP lESISLATIOir. ■^gjnppnao fm, nil iiiii|i1i . tihvi t- a. IfiOT fila.fnr sh ould feel Mmsel f- authorizedJojmd^tak£jt£.extir£^o^^^|^^SSflfisa.aa4^r- TiteaS ^jy. di rect .laws. He would haye to begin by a multitude «f1^^dations. The first ^convenience woiird ilierelore-be a cSmplexi ty of lawi T'^TBg'Mster it'is "to^cp tf85ST _ these Ti ces7~tfae- jn«wlSecessarj it.WQulii,be j£ resort to severity of puniihaiCTBr. injwderToTdestroy by the terror~ofexaffifiBB"*».*QBstantly re- curring hope of impunity. This excessive rigour of laws forms a second inconvenience not less grave than the nrsK ^h^ diffi-. culty of procuring proofs would be such, that it would be neces- sary to encourage informers, and to entertain an army of spies. ^1$^ lieeei^iffr forms a third inconvenience, greater than either of the others. Let us compare the results of good and evil. Offences of this nature, if that name can be properly given to imprudences, produce no alarm • but the pretended remedy would spread a uni- versal terror ; innocent or guilty, every one would fear for him- self or his connexions ; suspicions and accusations would render society dangerous ; we should fly from it ; we should involve ourselves in mystery and concealment ; we should shun all the disclosures of confidence. Instead of suppressing one vice, the laAYS would produce other vices, new and more dangerous. It is true that example may render certain excesses contagious ; and that an evil which would be almost imperceptible, if it acted only upon a smaU. number of individuals, may become important by its extent. All that the legislator can do in reference to offences of this kind is, to submit them to some slight punish- ment in cases of scandalous notoriety. This will be sufficient to give them a taint of illegality, which wiU excite the popular sanction against them. It is in cases of this kind that legislators have governed too much. Instead of trusting to the prudence of individuals, they have treated them like children, or slaves. They have suffered themselves to be carried away by the same passion which has influenced the founders of religious orders, who, to signalize their authority, and through a littleness of spirit, have held their sub- jects in the most abject dependence, and have traced for themj PEIWCIPLES OP LESISLATIOW. 63 day by day, and moment by moment, tbeir occupations, their food, tbeir rising up, their lying down, and all the petty details of their life. There are celebrated codes, in which are found a multitude of clogs of this sort ; there are useless restraints upon marriage ; punishments decreed against celihacy ; sumptuary laws regulating the fashion of dress, the expense of festivals, the furniture of houses, and the ornaments of women; there are numberless details about aliments permitted or forbidden ; about ablutions of such or such a kind ; about the purifications which health or cleanliness require ; and a thousand similar puerilities, which add, to aU the inconvenience of useless restraint, that of besotting the people, by covering these absurdities with a veil of mystery, to disguise their folly. Yet-ia eTg-imhappy are the S f]f)to° in -^^f]) jf; is attempted to jrn^-JTittiiTi •hy ppTioi laws a uniformity f ;f rr1'"y""B npiiTiinn". The choice of their religion ought to be referred entirely to the pru- dence of individuals. If they are persuaded that their eternal happiness depends upon a certain form of worship or a certain beUef, what can a legislator oppose to an interest so great ? It is not necessary to insist upon this truth — it is generally acknow- ledged; but, in tracing the boundaries of legislation, I cannot forget those which it is the most important not to overstep. Aj n gnnnrjVJT'iilrj the p^reatest possib lp igtijiifiii..iiiiiiiii^o iof|^ t" '""'^'Yif^Vl^ili "^"'1 n?"" ^ which ^ ■^'^Y p"" -•"■] — f nrn^p ^-^-^f themselves , fo r they are the best ju dg es of their own in teregt a.- Tf they deceive themselves, it is to be supposed that the moment they discover their error they will alter their conduct. The power of the law need interfere only to prevent them from injuring each other. It is there that restraint is necessary ; it is there that the application of punishments is truly useful, because the rigour exercised upon an individual becomes in such a case the security of all. II. It is true that there is a natural connection between pru- dence and probity ; for our own interest, wel l understood, will -Ttfvrr Ipfivn ufi wtnniiti rpof'V'^s t o absi ain &om injuring our ;feUows. 64 PEINCIPLES OP lEGHStATION. Let us stop a moment at tUs point. I say that, independentiy of religion and the laws, we always have some natural motives — that is, TTintiTOH HPT^vPfl frn m mir nwn iTiterest for consuItina JJlfr happiness of others^_ ^st. The inotija-o£--pure_ bmevolence^ jweet and calm segiiiuunT wEMiwe- delight -te-£xjiei3^ce^ana^ Wiich inspires us wMi3j:epMgHaaiee4oJ3»-ti»-«aiU£ejiLsn^^g. raSrirntr-TffnrtinTiTTrliirh PTPTfllPf? ^Mf'^-^^ym^ m dom estic lifeTand within the partir jilav nrrlr nt nnrnitinririni /ftrd. 't\^ desire ot good repu te, and th e fear of blam e. ThislTa sort of calculation of trade" It is paying, to have credrTrBpeaking truth, to obtain confidence ; serving, to be served. It is thus we must understand that saying of a wit, that, if there were no such thing as honesty, it would he a good speculation to invent it, as a means of making on^ s fortune. _.A^man enlightened as to his own in terest will not in dulge himself in a secret onence tnrougn fear of contractin g a sjiamefd ^ habitTwMtih sooner or l ater will betray h&B |^_ anJbecause the having auui ' llLb tu LunLUB Tfrom the prying curio"sTlyf)f mankind leaves in the heart a sediment of disquiet, which corrupts every pleasure. All he can acquire at the expense of security cannot make up for the loss of that ; and, if he desires a good reputation, the best guarantee he can have for it is his own esteem. ^"^1 iUi gTllfn" t^"^ ar individu al should perceive •^gjamasstiJia. batweeen the interpBtB. nf JaeBfe-Miita ^our ; so much evil, so many La Egummfs ag gfflgt jtT- "^g ^ the time that good anil ^^p^ ct-o r^othing else^ ""'•° "" 4 pam. ^ ~— —— __^ ^ * See Bwrrow's Voyage to the Cwpe oj ChodC Eope, for the cruelties of the Dutch settlers toward their cattle and their slaves. PETN-CIPLES OP LEMSLAIIOK-. 67 ja il; to nfffir a, fah e •vp.n.snv). 9 — Tf -ic ■fV.o nllaijinj;; fm' ui jagainst a. la.w sn mflt.liino' f^lpp than ^JM crnnfl nr Riril piypptg — ■> Nothing can be more simple, yet nothing is jKtore tufi^^ T^ fs not the principle of utility which is new ; on the contrary, that principle is necessarily as old as the human race. All the truth there is in morality, all the good there is in the laws, emanate from it ; but utility has often been followed by instinct, while it has been combatted by argument. If in books of legislation it throws out some sparks here and there, they are quickly extin- guished in the surrounding smoke. SEC]ett.fii|i& fe tte tiht^ Wft^ who deserves to be noted as an exception ; yet even in his work there is some reasoning drawn from false sources. It is upwards of two thousand years since Aristotle undertook to form, under the title of Sophisms, a complete catalogue of the different kinds of false reasoning. This catalogue, improved by the information which so long an interval might furnish, would here have its place and its use. But such an undertaking would carry me too far. I shaU be content with presenting some heads of error on the subject of legislation. By means of such a con- trast, the principle of utility will be put into a clearer Ught. 1. Antiquity is not a Reason. ■IhgitBfecrnlty ^ a law may crea te a prejudice in its fe'^^iiy- ; I"'*--. in i tself, it is not a reason. If the law in auest '""| jinfi ""Mniibiiifnd - tcthenublic good, the older it is. the easigT it aTTTiljfi.iti'.il ^'P^rate its p;ood effects, and to prove its utility by a dire ct ^jjcr ocess. 2. The Authority of Religion is not a Reason. Of late, this method of reasoning has gone much out of fashion, but till recently its use was very extensive. The work of Algernon Sidney is full of citations from the Old, Testament ; and he finds there the foundation of a system of Democracy, as Bossuet had found the principles of absolute power. Sidney wished to combat the partisans of divine right and passive obedience with their own weapons. Tf we suppose that a law emanates from the Deity, we suppose that it emanates from supreme wisdom, and supreme bounty. -B 2 68 PEINCIPLES OP lEGISIATIOK. Such a law, then, can only have for its object the most eminent utiHty ; and this utility, put into a clear light, -wjll always be an ample justification of the law. 3. Reproach of Innovation is not a Reason. To reject innovation is to reject prog ress : in what condition sE5uid*w6 be, il that principle had been always followed ? AU which exists has had a beginning ; all which is established has been innovation. Those very persons who approve a law to-day because it is ancient, would have opposed it as new when it was first introduced. 4. An Arlitrary Definition is not a Reason. l^othing is more common, among jurists and political writers, than to base their reasonings, and even to write long works, upon a foundation of purely arbitrary definitions. This artifice con- sists in taking a word in a particular sense, foreign from its common usage ; in employing that word as no one ever employed it before ; and in puzzling the reader by an appearap.ce of pro- foundness and of mystery. Montesquieu himself has fallen into this fault in the very be- ginning of his work. Wishing to give a definition of law, he proceeds from metaphor to metaphor ; he brings together the most discordant objects — the Divinity, the material world, superior intelligences, beasts and men. "We learn, at last, that lams are relations ; and eternal relations. Thus the definition is more obscure than the thing to be defined. The word law, in its proper sense, excites in every mind a tolerably clear idea, the word relation excites no idea at aU. The word lam, in its figura- tive sense, produces nothing but equivocations ; and, Montesquieu, who ought to have dissipated the darkness, has only ia- creased it. It is the character of a false definition, that it can only be em- ployed in a particular way. That author, a little further on (ch. iii.), gives another definition. Law in general, he says, m human reason, in so far as it governs all the people of the earth. These terms are more familiar but no clear idea results from PRINCIPLES OF LEMSLATION. C9 them. Is it the fact, that so many laws, contradictory, ferocious, or absurd, and in a perpetual state of change, are always human reason ? It would seem that reason, so far from being the law, is often in opposition to it. This first chapter of Montesquieu has given occasion to an abundance of nonsense. The brain has been racked in search of metaphysical mysteries, where none in fact exist. Even Beocaria has suffered himself to be carried away by this obscure notion of relations. To interrogate a man in order to know whether he is innocent or guilty, is to force him, he tells us, to accuse himself. To this procedure he objects ; and why ? because, as he says, it is to confound, all relations!^' But what does that mean ? To enjoy, to suffer, to cause enjoyment, to cause suffering : those are expressions which I understand ; but to foUow relations and to confound relations, is what I do not understand at all. These abstract terms do not excite any idea in my mind; they do not awaken any sentiment. I am absolutely indifferent about relations; — pleaswres scudi pains are what interest me. Eousseau has not been satisfied with the definition of Mon- tesquieu. He has given his own, which he announces as a great discovery. Law, he says, is the expression of the general will. There are, then, no laws except where the people have spoken in a body. There is no law except in an absolute democracy. Eousseau has suppressed, by this supreme decree, aU existing laws; and at the same time he has deprived of the possibility of existence aU those which are likely to be made hereafter, — the legislation of the republic of San Marino alone excepted. 5. Metaphors are not Reasons. I mean either metaphor properly so called, or allegory, used at first for illustration or ornament, but afterwards made the basis of an argument. Blaokstone, so great an enemy of all reform, that he has gone so far as to find fault with the introduction of the English lan- guage into the reports of cases decided by the courts, has neglected * Beccaria, cli. xiL 70 PKINCrPLES OP lEGISLiTIO^". no means of inspiring his readers -with the same prejudice. He represents the law* as a castle, as a fortress, which cannot be altered without being weakened. I allow that he does not ad- vance this metaphor as an argument; hut why does he employ it ? To gain possession of the imagination ; to prejudice his readers against every idea of reform ; to excite in thefc an arti- ficial fear of all innovation in the laws. There remains in the mind a false image, which produces the same effect with false reasoning. He ought to have recollected that this allegory might be employed against himself. "When they see the law turned into a castle, is it not natural for ruined suitors to represent it as a castle inhabited by robbers ? A man's house, say the English, is his castle. This poetical expression is certainly no reason ; for if a man's house be his castle by night, why not by day ? If it is an inviolable asylum for the owner, why is it not so for every person whom he chooses to receive there ? The course of justice is sometimes interrupted in England by this puerile notion of liberty. Criminals seem to be looked upon like foxes ; they are suffered to have their burrows, in order to increase the sports of the chase. A church in Catholic countries is the Souse of Goi. This metaphor has served to establish asylums for criminals. It would be a mark of disrespect for the Divinity to seize by force those who had taken refuge in his houSe. The balance of trade has produced a multitude of reasonings founded upon metaphor. It has been imagined that in the course of mutual commerce nations rose and sank like the scales of a balance loaded with unequal weights ; people have been terribly alarmed at what appeared to them a want of equilibrium ; for it has been supposed that what one nation gained the other must lose, as if a weight had been transferred from one scale to the other. The word mother-country has produced a great number of pre- judices and false reasonings in all questions concerning colonies * 3 Comm. ch. xvii. PEINCIPLES OF lE&ISLATIOir. 71 and the parent state. Duties have been imposed upon colonies, and they have been accused of offences, founded solely upon the metaphor of their filial dependence. 6. A Motion is not a Season. I understand by fiction an assumed fact notoriously false, upon which one reasons as if it were true. The celebrated Cocceiji, the compiler of the Code Frederic, fur- nishes an example of this kind of reasoning on the subject of last wills. After a deal of circumlocution about the natural right, he decides that the legislator ought to grant to individuals the power of making a will. "Why ? Because the heir and the deceased are one and the same person, and consequently the heir ought to continue to enjoy the property of the deceased. {Code Fred, part ii. 1. 110, p. 156.) He offers, it is true, some arguments which involve, to a small extent, the principle of utility ; but that is in the preface. The serious reason, the judicial reason, is the identity of the living and the dead ! The English lawyers, to justify the confiscation of property in certain cases, have employed a style of reasoning not unlike that of the chancellor of the great Trederic. They have imagined a corruption of Hood which arrests the course of legal succession. A man has been capitally punished for the crime of high treason ; his innocent son is not only deprived of his father's goods, but he cannot even inherit from his grandfather, because the channel by which the goods ought to pass has been corrupted. This fiction of a sort of political original sin serves as a foundation to all this point of law. But why stop there ? If in fact the father's blood is corrupted, why not destroy the vile offspring of corruption ? Why not execute the son at the same time with the father? Blackstone,'in the seventh chapter of his first book, in speak- ing of the royal authority, has given himself up to all the puerility of fiction. The king, he teUs us, is everywhere pre- sent ; he can do no wrong ; he is immortal. These ridiculous paradoxes, the fruits of servility, so far from 72 PKINCIPLES OE LEGISLATIOS-. furnishmg just ideas of the prerogatives of royalty, only serve to< dazzle, to mislead, and to give to reality itself an air of fable and of prodigy. But these fictions are not mere sparkles of imagi- nation. He makes them the foundation of many reaaonings. " He employs them to explain certain royal prerogatives, which might be justified by very good arguments, without perceiving how much the best cause is injured by attempting to prop it up ■ by falsehoods. The judges, he tells us, wre mirrors, in which the image of the king is reflected. What puerility ! Is it not expos- ing to ridicule the very objects which he designs to render the most respectable ? But there are fictions more bold and more important, which have played a great part in politics, and which have produced celebrated works : these are contracts. The Leviathan of Hobbes, a work now-a-days but Uttle known, and detested through prejudice and at second-hand as a defence of despotism, is an attempt to base all political society upon a pretended contract between the people and the sovereign. The people by this contract have renounced their natural liberty, which produced nothing but evU ; and have deposited all power in the hands of the prince. All opposing wills have been united in his, or rather annihilated by it. That which he wills is taken to be the will of all his subjects. "When David brought about the destruction of Uriah, he acted in that matter with Uriah's con- sent, for Uriah had consented to all that David might command. The prince, according to this system, might sin against God, but he could not sin against man, because all his actions proceeded from the general consent. It was impossible to entertain the idea of resisting him, because such an idea implied the contradic- tion of resisting one's self. Locke, whose name is as dear to the friends of liberty as that of Hobbes is odious, has also fixed the basis of government upon a contract. He agrees that there is a contract between the prince and the people ; but according to him the prince takes an engage- ment to govern according to the laws, and for the public good; while the people, on their side, take an engagement of obedience PiaNCIELES OE LEGISlATlOJiT. 73 SO long as the prince remains faithful to the conditions in virtue of which he receives the crown. Rousseau rejects with indignation the idea of this bilateral contract between the prince and the people. He has imagined a social contract, by which all are bound to all, and which is the only legitimate basis of government. Society exists only by virtue of this free convention of associates. These three systems — so directly opposed — agree, however, in beginmng the theory of politics with a fiction, for these three con- tracts are equally fictitious. They exist only in the imagination of their authors. Not only we find no trace of them in history, but everywhere we discover proofs to the contrary. The contract of Hobbes is a manifest falsehood. Despotism has everywhere been the result of violence and of false religions ideas. If a people can be found which by a public act has sur- rendered up the supreme authority to its chief, it is not true that, in so doing, that people submitted itself to all the caprices, how- ever strange or cruel, of its sovereign. The singular act of the Danish people in 1660 includes essential clauses which limit the supreme power. The social contract of Eousseau has not been judged so severely, because men are not difScult about the logic of a system which establishes that which they best love — liberty and equality. But where has this universal convention been formed ? What are its clauses ? In what language is it written ? Why has it always been unknown ? Upon coming out of the forests, upon renouncing savage life, what tribe has possessed those great ideas of morals and politics upon which this primitive convention is built ? The contract of Locke is more specious, because, in fact, there are some monarchies in which the sovereign takes certain engage- ments upon his accession to the throne ; and accepts certain con- ditions upon the part of the nation he is to govern. However, even this contract is but a fiction. The essence of a contract consists in the free consent of the parties interested. It supposes that aU the objects of the engagement are specified and known. Now if the prince is free, at his accession, to accept 74 PEISfOIPLES OV lEGISLAIIOIT. or to refuse, are the people equally so ? Can a few vague accla- mations be counted as an act of individual and universal assent ? Can this contract bind that multitude of individuals who never heard of it, who have never been called to sanction it, and who could not have refused their consent without endangering their fortunes and their lives ? Besides, in the greater part of monarchies, this pretended con- tract has not even the appearance of reality. "We do not see even the shadow of an engagement between the prince and the people. It is not necessary to make the happiness of the human race dependent on a fiction. It is not necessary to erect the social pjrramid upon a foundation of sand, or upon a clay which slips from beneath it. Let us leave such trifling to children ; men ought to speak the language of truth and reason. The true political tie is the immense interest which men have in maintaining a government. "Without a government there can be no security, no domestic enjoyments, no property, no industry. It is in this fact that we ought to seek the basis and the reason of aU governments, whatever may be their origin and their form ; it is by comparing them with their object that we can reason with solidity upon their rights and their obligations, without having recourse to pretended contracts which can only serve to produce interminable disputes. 7. Fancy is not a Reason. Nothing is more common than to say, reason decides, eternal reason orders, &c. But what is this reason ? If it is not a dis- tinct view of good or evil, it is mere fancy ; it is a despotism, which announces nothing but the interior persuasion of him who speaks. Let us see upon what foundation a distinguished jurist has sought to establish the paternal authority. A man of ordinary good sense would not see much diflculty in that question; hut your learned men find a mystery everywhere. " The right of a father over his children," says Cocceiji, "is founded in reason; — ^for, 1st, Children are horn in a house, of PRINCIPLES OF LEMSLATION. 75 wMch the father is the master ; 2iid, They are bom in a family of which he is the chief ; 3rd, They are of his seed, and a part of his body." These are the reasons from which he concludes, among other things, that a man of forty ought not to marry without the consent of a father, who in the course of nature must by that time be in his dotage. What there is common to these three reasons is, that none of them has any relation to the interests of the parties. The author consults neither the welfare of father nor that of the children. The right of a father is an improper phrase. The question is not of an unlimited, nor of an indivisible right. There are many Mnrds of rights which may be granted or refased to a father, each for particular reasons. The first reasonwhich Cocceiji alleges is founded upon a fact which is true only by accident. Let a traveller have children who are bom at a tavern, on board a vessel, or in the house of a friend, such a father would lack this first basis of paternal authority. According to this reasoning, the children of a domestic, and those of a soldier, ought not to be subject to their fathers' commands, but to those of the person in whose house they are bom. If the second reason has any determinate sense, it is only a repetition of the first. Is the child of a man who lives in his father's house, or in the house of an elder brother, or a patron, bom in a family of which his father is the chief? The third reason is as fdtile as it is indecent. " The child is bom of the seed of his father, and is a part of his body." If this is the foundation of the right, it ought to put the power of the mother far above that of the father. And here we may remark an essential difference between false principles and the true one. The principle of utility, applying itself only to the interests of the parties, bends to circumstances, and accommodates itself to every case. Palse principles, being founded upon things which have nothing to do with individual interests, would be inflexible if they were consistent. Such is the character of this pretended right founded upon birth. The 76 PEINCrPLES OP LEGISLATION. son naturally belongs to the father, because the matter of which the son is formed once circulated in the father's veins. No matter how unhappy he renders his son; — it is impossible to annihilate his right, because we cannot make his son cease to be his son. The corn of which your body is made formerly grew in my field ; how is it that you are not my slave ? 8. Antipathy and Sympath y are no t Reasons. Eeasoning by antipathy is most common upon subjects con- nected with penal law ; for we have antipathies against actions reputed to be crimes ; antipathies against individuals reputed to be criminals ; antipathies against the ministers of justice ; anti- pathies against such and such punishments. This false prin- ciple has reigned like a tyrant throughout this vast province of law. Beccaria first dared openly to attack it. His arms were of celestial temper ; but if he did much towards destrojdng the usurper, he did very little towards the establishment of a new and more equitable rule. It is the principle of antipathy which leads us to speak of offences as rlp,iii>,rmnn pupiRbmOTif-.. It is the corresponding prin- ciple of sympathy which leads us to speak of certain actions as m.p.ntiff. ^ reward. ^ This word merit can only lead to passion and to error. It is effects, good or bad, which we ought alone to consider. But when I say that antipathies and sympathies are no reason, I mean those of the legislator ; for the antipathies and sympa- thies of the people may be reasons, and very powerful on^s. However odd or pernicious a religion, a law, a custom may be, it is of no consequence, so long as the people are attached to it. The strength of their prejudice is the measure of the indul- gence which should be granted to it. To take away an enjoy- ment or a hope, chimerical though it may be, is to do the same injury as if we took away a real hope, a real enjoyment. In such a case the pain of a single individual becomes, by sympathy, the pain of aU. Thence results a crowd of evils ; antipathy against a law which wounds the general prejudice ; antipathy against the whole code of that law is a part ; antipathy against the. lEDrCrPLES OP i^SBsttimH* govemmenfr which carries the laws into execution ; a dispo^Sr tion not to aid in their execution; a disposition secretly to oppose it ; a disposition to oppose it openly and by force ; a disposition to destroy a government which sets itself in opposition to the popular will — all the evils produced by those offences, which, in a collective shape, form that sad compound called rebellion or civil war — all the evils produced by the punishments which are resorted to as a means of putting a stop to those offences. Such is the succession of fatal consequences which are always ready to arise from fancies and prejudices violently opposed. The legis- lator ought to yield to the violence of a current which carries away everything that obstructs it. But let us observe, that in such a case, the fancies themselves are not the reason that determines the legislator ; his reason is the evils which threaten to grow out of an opposition to those fancies. But ought the ^^#ator to be a slave to the fancies of those whom he governs \ |f o^ ®^W(6feitt an imprudent opposition and a servile compliance there is a middle path, honourable and safe. It is to combat these fancies with the only arms that can conquer menA- example and instruction. TTfi -mnst fiTilig-htpn ^.Tia ppnplp^ he must address himself to the public reason ; he must give ■^ \A}M foi' Wiur Lu be UilhiasJied. fcSouud reRUUiij, duail^/ tKil luiLh, ' g-ro^f T1f!(?^f1Sity Ft''"""g'^'^ fhillini •fl"'"" ^»>niy Rfj'f YT^'^)on.,p|fj-|-f)-p ought noti!f> tihnw himadf iiaa..^gifiiiijuixiijtlM>8»'iM«trHfcTiuii^^"t^^^ ^fisar&f- coBa^wiffiiitiijjgJy^ageliUwiih. the- public IpSTSa^Sntfffl- ' lis end. It is toDe'T5B3Srf?8f'°HW§1^ef 7 tEit too much deference for prejudices is a more common fault than the contrary excess. The best projects of laws are for ever stumbling against this common objection, — " Prejudice is opposed to it ; the people wiU. be offended !" But how is that known? How has public opinion been consulted ? What is its organ ? Have the whole people but one uniform notion on the subject ? Have aU the individuals of the community the same sentiments, including perhaps nine out of ten, who never heard the subject spoken of? Besides, if the people are in error, are they compelled always to 78 PKIKCIPLES OF lEGISlATION. remain so ? "Will not an influx of light dissipate tlie darkness vMcli produces error ? Can we expect the people to possess sound knowledge, while it is yet unattained by their legislators, hy those who axe regarded as the wise men of the land ? HaTe there not been examples of other nations who have come out of a simHar ignorance, and where triumphs have been achieved over the same obstacles ? After all, popular prejudice serves oftener as a pretext than as a motive. It is a convenient cover for the weakness of states- men. The ignorance of the people is the favourite argument of pusillanimity and of indolence ; while the real motives are pre- judices from which the legislators themselves have not been able to get free. The name of the people is falsely used to justify their leaders. 9. Begging the Question is not a Reason. The petitio principii, or begging the question, is one of the sophisms which is noted by Aristotle ; but it is a Proteus which conceals itself artfully, and is reproduced under a thousand forms. Begging the question, or rather assuming the question, con- sists in making use of the very proposition in dispute, as though it were already proved. This false procedure insinuates itself into morals and legisla- tion, under the disguise of sentimental or impassioned terms; that is, terms which, beside their principal sense, carry with them an accessory idea of praise or blame. Neuter terms are those which simply express the thing in question, without any attending presumption of good or evil ; without introducing any foreign idea of blame or approbation. Now it is to be observed that an impassioned term envelops a proposition not expressed, but imderstood, which always accom- panies- its employment, though in general unperoeived by those who employ it. This concealed proposition implies either blame or praise; but the implication is always vague and undetermined. Do I desire to connect an idea of utility with a term which PEINOIPLES OP LEGISLATION, 79 commonly conveys an accessory idea of blame ? I shall seem to advance a paradox, and to contradict myself. Por example, should I say that such a piece of luxury is a good thing ? The proposition astonishes those who are accustomed to attach to this word luxwry a sentiment of disapprobation. How shall I be able to examine this particular point without awakening a dangerous association? I must have recourse to a neuter word ; I must say, for example, such a manner of spending one's revenue is good. This turn of expression runs counter to no prejudice, and permits an impartial examination of the object in question. When Helvetius advanced the idea that all actions have interest for their motive, the public cried out against his doctrine without stopping to understand it. Why? Because the word interest has an odious sense ; a common acceptation, in which it seems to exclude every motive of pure attachment and of benevolence. How many reasonings upon political subjects are founded upon nothing but impassioned terms ! People suppose they are giving a reason for a law, when they say that it is conformable to the principles of monarchy or of democracy. But that means nothing. If there are persons in whose minds these words are associated with an idea of approbation, there are others who attach con- trary ideas to them. Let these two parties begin to quarrel, the dispute will never come to an end, except through the weariness of the combatants. Por, before beginning a true examination, we must renounce these impassioned terms, and calculate the effects of the proposed law in good and evil. Blackstone admires in the British constitution the combina- tion of the three forms of government ; and he hence concludes that it must possess the collected good qualities of monarchy, aristocracy, and democracy. How happened it that he did not perceive, that without changing his premises, a conclusion might be dravm from them, diametrically opposite, yet equally just; to wit, that the British constitution must unite aU the particular faults of democracy, aristocracy, and monarchy ? To the word independence, there are attached certain accessory 80 PEINCIPLES OF lEGISLATION. ideas of dignity and virtue; to the word dependence, accessory ideas of inferiority and corruption. Hence it is that the pane- gyrists of the British constitution admire the independence of the three powers of which the legislature is composed. This, ia their eyes, is the masterpiece of politics ; the happiest trait in that whole scheme of government. On the other side, those who would detract from the merits of that constitution, are always ia- sisting upon the actual dependence of one or the other of itshranches. Neither the praise nor the censure contain any reasons. As to the fact, the pretended independence does not exist. The king and the greater part of the lords have a direct influence upon the election of the House of Commons. The king has the power of dissolving that House at any moment ; a power of no little efficacy. The king exercises a direct influence hy honour- ahle and lucrative employments, which he gives or takes away at pleasure. On the other side, the king is dependent upon the two Houses, and particularly upon the Commons, since he cannot maintain himself without money atid troops, — two principal and essential matters which are wholly under the control of the re- presentatives of the people. "What pretence has the House of Lords to be called independent, while the king can augment its number at pleasure, and change the vote in his favour by the creation of new lords ; exercising too, as he does, an additional influence on the temporal peers, by the prospect of advancement in the ranks of the peerage ; and on the bishops, by the bait of ecclesiastical promotion ? Instead of reasoning upon a deceptive word, let us consider effects. It is the reciprocal dependence of these three powers which produces their agreement ; which subjects them to fixed rules, which gives them a steady and systematic operation. Hence the necessity of mutual respect, attention, concession, and moderation. If they were absolutely independent, there would be continual shocks between them. It would often be necessary to appeal to force ; and the result would be a state of anarchy. I cannot refrain from giving two other examples of this error of reasoning, founded upon the misuse of terms. PEINCIPLES OF LEGIST- f^/- , 81 If we attempt a theory upon tke subj "e n* V national represen- tation, in following out all that appears i,o be a natural conse- quence of that abstract idea, we come at last to the conclusion that universal suffrage ought to be established ; and to the addi- tional conclusion that the representatives ought to be re-chosen as frequently as possible, in order that the national representation may deserve to be esteemed such. In deciding these same questions according to the principle of utility, it wiU not do to reason upon words ; we must loot only at effects. In the election of a legislative assembly, the right of suffi-age should not be allowed except to those who are esteemed by the nation fit to exercise it ; for a choice made by men who do not possess the national confidence will weaken the confidence of the nation in the assembly so chosen. Men who would not be thought fit to be electors, ■ are those who cannot be presumed to possess political integrity, and a sufficient degree of knowledge. Now we cannot presume upon the political integrity of those whom want exposes to the temp- tation of selling themselves; nor of those who have no fixed abode ; nor of those who have been found guilty in the courts of justice of certain ofiences forbidden by the law. "We cannot presume a sufficient degree of knowledge in women, whom their domestic condition withdraws from the conduct of public affairs ; in children and adults beneath a certain age ; in those who are deprived by their poverty of the first elements of education, &c. &c. It is according to these principles, and others like them, that we ought to fix the conditions necessary for becoming an elector ; and it is in like manner, upon the advantages and disadvantages of frequent elections, without paying any attention to arguments drawn from abstract terms, that we ought to reason in establish- ing the duration of a legislative assembly. ' The last example I shall give will be taken from contracts ; I mean those political fictions to which this name has been applied by their authors. "When Locke and Eousseau reason upon this pretended contract ; 82 PEUfCIPLES OF LEGISLATION. ■when they affirm tld ■vthe social or political contract includes such and such a clause, can they prove it otherwise than by the general utility which is supposed to result from it ? Grant that this contract which has never been reduced to writing is, how- ever, in full existence. On what depends all its force ? Is it not upon its utility? "Why ought we to fulfil our engagements? Because the faith of promises is the basis of society. It is for the advantage of aU that the promises of every individual should be faithfully observed. There would no longer be any security among men, no commerce, no confidence; — it would be neces- sary to go back to the woods, if engagements did not possess an obligatory force. It is the same with these political con- tracts. It is their utility which makes them binding. When they become injurious, they lose their force. If a king had taken an oath to render his subjects unhappy, would such an engage- be valid ? If the people were sworn to obey him at all eventsf would they be bound to suffer themselves to be exterminated by a If ero or a Caligula, rather than violate their promise ? If there resulted from the contract effects universally injurious, could there be any sufficient reason for maintaining it ? It cannot be denied, then, that the validity of a contract is at bottom only a question of utility — a little wrapped up, a little disguised, and, . in consequence, more susceptible of false interpretations. 10. An imaginary Law is not a Reason. "IfaiwfhLliii ii^ natural righ t s^sxe two kinds of fictions or meTa - phors, which play s o ^eat a p art in ba^inTi^f 1r3 i''1g<^""Ti'^^ t JJTPyjjpTrT n tn bn nTrn i T ri innd by thriT n pf JJY' ^S i The primitive sense of the word law, and the ordinary mean- mg of the word, is«?Hie wflif or osfg^i^ivaiad of a \^y^em^ tt^e law of nature is a figurative expression, in which nature is repre- sented as a being ; and such and such a disposition is attributed to her, which is figuratively called a law. In this sense, aU tho general inclinations of men, all those which appear to exist inde- pendently of human societies, and from which must proceed the psii^-ciBt^ dfe' uogisfiirrciir. 88? establishment of political and civil law, are called laws of natitre. This is the true sense of the phrase. But this is not the ■way in ■which it is understood. Authors have taken it in a direct sense ; as if there had been a real code of natural la-ws. They appeal to these laws ; they cite them, and they oppose them, clause by clause, to the enactments of legis- lators. They do not see that these natural laws are laws of their own invention ; that they are all at odds among themselves as to the contents of this pretended code; that they affirm without proof; that systems axe as numerous as authors; and that, in reasoning in this manner, it is necessary to be always beginning anew, because every one can advance what he pleases touching laws which are only imaginary, and so keep on disputing for ever. ^jiat is natural to man is sentiments of pleasure or pain , _caliea inclinations. .But t o fall t.hpsa gpn timen ts an4 Jb.ons jaws, is -co incroaii.C6 a, lalseand dangerous idea- It is to set lang uag^FBlJBosiUun L^ mafe- fow s pregF* i' I'"' ffll' f^^^^^g arniny ihp.KP: iT^nlina- t ions. Jnajjpgfl^frPfyaTrliTig' them as iaws, they mus t be stfb- m Sted to ]!aws. it is against ike strongest natural inclinations UKat it is necessary to have laws the most repressive._, I^-^twe . w CTA a law yfn a.ture which directed all men towa rds ihp^y or.rr.mr.rt ^ood, laws wouR bi j 'lisele'ss ; it would be employing a creeper to uphold an oak ; it would be kindling a torch to add light to the Blaokstone, in speaking of the obligation of parents to provide for the support of their children, says, " that it is a principle of natural law, a duty imposed by nature itself, and by the proper act of the parents in bringing the children into the world. Montesquieu," he adds, " observes "with reason, that the natural obligation of the father to support' his children, is what has caused the establishment of marriage, which points out the person who ought to falfil this obligation." ,(^0°^ i- '^^- ^^■) Parents are inclined to support their children ; parents ought to support their children; these are two distinct propositions. G 2 i 84 PEINOIPI.ES OF LEGISLATION. The first does not suppose the second ; the second does not sup- pose the first. There are, without doubt, the strongest reasons for imposing upon parents the obligation to bring up their children. Why have not Blackstone and Montesquieu mentioned those reasons ? "Why do they refer us to what they call the law of nature? What is this law of nature, which needs to be propped up by a secondary law from another legislator ? If this natural obligation exists, as Montesquieu says it does, far fi^m serving as the foundation of marriage, it proves its inutility, — at least for the end which he assigns. One of the objects of mar- riage is, precisely to supply the insufficiency of natural affection. It is designed to convert into obligation that inclination of parents, which would not always be sufficiently strong to sur- mount the pains and embarrassments of education. Men are very well disposed to provide for their own support. It has not been necessary to make laws to oblige them to that If the disposition of parents to provide for the support of their children had been constantly and universally as strong, legis- lators never would have thought of turning it into an obligatioi. The exposure of infants, so common in ancient Greece, is still practised in China, and to a greater extent. To abolish this practice, would it not be necessary to allege other reasons besides this pretended law of nature, which here is evidently at fault ? The word rights, the same as the word law, has two senses; the one a proper sense, the other a metaphorical sense. Mights, properly so called, axe the creatufe^of law properly so called; real laws give birth to real rights. If^i^^riciMs are the crea- tures of natural law; they are a metaphor whimaenveff origin from another metaphor. What there is natural in man is means, — faculties. But to call these means, these faculties, natv/ral rights, is agaia to put language in opposition to itself. Por rights are established to insure the exercise of means and faculties. The right is the^ the fa culty is th e thing__gua£anteed. How can we understanc^racE^ther witir"^Ffe^aftge_^S5E~confounds under the same term things so different ? Wherewouid be'tEenomen- PEHTCTPLBS OP LESISLATIOIf. 85 clature of the arts, if we gave to the meohanic who makes an article the same name as to the article itself? Eeal rights are always spoken of in a legal sense; natural rights are often spoken of in a sense that may be called anti- legal. When it is said, for example, that law cannot avail against natwral rights, the word rights is employed in a sense above the law ; for, in this use of it, we acknowledge rights which attack the law ; which overturn it, which annul it. In this anti-legal sense, the word right is the greatest enemy of reason, and the most terrible destroyer of governments. There is no reasoning with fanatics, armed with natural rights ; which each one understands as he pleases, and applies as he sees fit ; of which nothing can be yielded, nor retrenched ; which are inflexible, at the same time that they are unintelligible ; which are consecrated as dogmas, from which it is a crime to vary. Instead of examining laws by their effects, instead of judging them as good or as bad, they consider them in relation to these pretended natural rights ; that is to say, they substitute for the reasoning of experience the chimeras of their own imaginations. This is not a harmless error ; it passes from speculation into practice. " Those laws must be obeyed, which are accordant with nature ; the others are null in fact ; and instead of obeying them, they ought to be resisted. The moment natural rights arc attacked, every good citizen ought to rouse up in their defence. These rights, evident in themselves, do not need to be proved ; it is sufficient to declare them. How prove what is evident already ? To doubt implies a want of sense, or a fault of intel- lect," &c. But not to be accused of gratuitously ascribing such seditious maxims to these inspired politicians of nature, I shall cite a pas- sage from Blackstone, directly to the point ; and I choose Black- stone, because he is, of aU writers, the one who has shown the most profound respect for the authority of governments. In speaking of these pretended laws of nature, and of the laws of revelation, he says : " Human laws must not be permitted to con- tradict these; 4f a human law commands a thing forbidden by 86 PEIKOIPLES OP LEGISI.ATIOK'. tlie natural or divine law, we are bound to transgress that human law," &c. (1 Comiii. p. 43.) Is not this arming every fanatic against all governments ? In the immense variety of ideas respecting natural and Divine law, cannot some reason be found for resisting all human laws ? Is_ there a si ngle ste te which ca njoaiataia-itself a day, i f each inm- _ lLimsel£-bw md in— consoien^ to resigf the la-w^ ^ever they arejigfc-e«Bfe«gedr^te-feMSiarticula r ideas olj nr^ynmji Qj.p-^^^7\Tir^ nt. a cut- throat scene of it we should have between all the interpreters of the code of nature, and aU the interpreters of the law of God ! " The pursuit of happiness is a natural right." The pursuit of happiness is certainly a natural inclination ; but can it be de- clared to be a right ? That depends on the way in which it is pursued. The assassin pursues his happiness, or what he esteems sach, by committing an assassination. Has he a right to do so ? If not, why declare that he has ? What tendency is there in such a declaration to render men more happy or more wise ? Turgot was a great man ; but he had adopted the general opinion without examining it. Inalienable and natural rights were the despotism or the dogmatism which he wished to exercise, without himself perceiving it. If he saw no reason to . doubt a proposition ; if he judged it evidently true ; he referred it, without going further, to natural right, to eternal justice. Henceforward he made use of it as an article of faith, which he was no longer permitted to examine. Utility having been often badly applied, understood in a nar- row sense, and having lent its name to crimes, has appeared contrary to eternal justice. It thus became degraded, and acquired a mercenary reputation. It needs courage to restore it to honour, and to re-establish reasoning upon its true basis. I propose a treaty of conciliation with the partisans of natural rights. If nature has made such or such a law, those who cite it with so much confidence, those who have modestly taken upon themselves to be its interpreters, must suppose that natm'e had some reasons for her law. "Would it not be surer, shorter and PEINCIPIES OF LEGISLATION. 87 more persuasive, to give us those reasons directly, instead of urging upon tis the will of this unknown legislator, as itself an authority ? Here would be the place to remark the false methods of argument, which especially prevail in deliberative assemblies — personalities, imputations of bad motives, declamations, delays. But what has been sedd above is enough to show what is reason- ing, according to the principle of utUity, and what is not. AU these false methods of reasoning can always be reduced to one or the other of the two false principles. This fundamental distinction is very useful in getting rid of words, and rendering ideas more clear. To refer such or such an argument to one or another of the false principles, is like tying weeds into bundles, to be thrown into the fire. I conclude with a general observation. The language of error is always obscure and indefinite. An abundance of words serves to cover a paucity and a falsity pi idfes. The oftener terms are changed, the easier it is to delude the reader. The language of truth is uniform and simple. The same ideas are always ex- pressed by the same terms. Everything is referred to pleasures or to pains. Every expression is avoided which tends to disguise or intercept the familiar idea, that from such and such actions result such and such pleasures and pains. Trust not to me, but to experience, and especially your own. Of two opposite methods of action, do you desire to Icnow which should have the preference ? Calculate their effects in good and evil, and prefer that which pro- mises the greater sum of good. PRINCIPLES OF THE CIVIL CODE. INTRODUCTION. BY DUMONT. Of all the branches of legislation, civil law is that which has the least attraction for those who do not study jurisprudence as a pro- fession. But this is not saying enough. In fact, it inspires a land of terror. Curiosity has for a long time been ardently ex- ercised upon poUtioal economy, upon penal lav, and upon the principles of government. Celebrated works have given cre(Mt to those studies ; and under the penalty of confessing an humbluig inferiority, it is necessary to have some information, and to ex- press some opinions about them. But civil law has not yet come out of the narrow enclosure of the bar. Its commentators sleep in the dust of libraries, by the side of its controversialists. The public knows not even the names of its sects ; and regards with a mute and ignorant respect those numerous folios, those enormous compilations, ornamented with the pompous titles of Bodies of Law, and Collections of Universal Jurisprudence. The general repugnance against this study results from the manner in which it has been treated. The works above alluded to bear the same relation to the science of law which was borne to the natural sciences by the works of the scholastic writers, before the introduction of experimental philosophy. They who PEnrciPLBS or the citil code. 89 attribute the dryness and obscurity of those ■woriis to the nature of the subject, are altogether too indulgent. "What is it of which this part of the law treats ? It treats of everything that is most interesting to men : of their security ; of their property ; of their mutual and daily transactions ; of their domestic condition, in the relations of father, of children, of husband, and of wife. Here it is that rights and olligations spring up ; for all the objects of law may be reduced, without mystery, to these two terms. The civil law is, in fact, only another aspect of the penal law ; one cannot be understood without the other. To establish rights, is to grant permissions ; it is to make prohibitions ; it is, in one word, to create offences. To commit a private offence is to violate an obligation which we owe to an individual, — a right which he has in regard to us. To commit a public offence is to violate an obligation which we owe to the public, — aright which the public has in regard to us. Civil law, then, is only penal law viewed under another aspect. If I consider a law at the moment when it confers a right, or imposes an obligation, this is the civil point of view. If I consider a law in its sanction, in its effects as regards the violation of that right, the breaking through, that obligation, that is the penal point of view. What is to be understood hj principles of civil law ? They are fea!! ^o?a7g»— of laws ,■• the kl iuw lfidge oi iho -^gus'reasons which ought ta .-gtftde. ^e le^^ gXin" iar't^^^ fii°^leaiTy~shown ffie7alsity. He saw, that authors were going round in a viciota circle; Familiar with the method of Bacon and of Newton, he resolved to transfer it to the subject of legislation ; he resolved to make jurisprudence an experimental science. He avoided all dogmatic words ; he rejected everything which did not express a sensation of pain or pleasure ; he refused to admit, for example, that property was an inherent right, or a natural right, because these terms explained nothing and proved nothing. The words justice and injustice had, in his estimation, a similar inconvenience, — that of pre- judging questions, instead of throwing light upon them. 'Warn. he proposes a law, he does not pretend to find a corresponding law in the code of nature, and by a common piece of legerdemain to present, as a thing made already, the very thing he wishes to make. When he explains ohligations, he does not wrap himself up in mysterious reasons ; he admits no supposition ; he shows plainly that every obligation ought to be founded either upon a precedent service received by the person obligated; upon a superior need on the part of him in whose favour the obUgation is imposed ; "';,.IJ2£"^ ? "^"^""^ "CPPimpp*' •^hip.V i derives ' .alJJfe''''^ its utility. Thus, always guided by experience and observaSsfl; he conMders in laws nothing but the effects they produce upon the faculties of man as a sensitive being ; and he alwaj's gives j»«»res to be avoided as the only arguments of real value. PEINCIPLES OF THE CITIL COBB. 91. The lawyers are always reasoning upon fictions, and giving to those fictions the same effect as to realities. They admit, for example, contracts wMch never have existed ; and quasi contracts which have not even an appearance of existence. In certain cases they admit a civil death, in others they deny the natural death : such a dead man is not dead ; such a living man is not living. A person who is ahsent is taken to be present ; a person who is present is regarded as ahsent. A province is not where it is ; a country does not belong to those who own it. Men are sometimes things, and as such are not susceptible of rights. Things are sometimes beings who have rights, and who are sub- mitted to obligations. They acknowledge imprescriptible rights, J against which prescription has always prevailed ; inalienable rights which have always been alienated ; and that which is not, in their eyes, is always of more avaU than that which is. Take away these fictions, or rather these falsehoods, and they would not know where they were. Accustomed to these false supports, they cannot sustain themselves in any other way. Bentham has rejected all these puerile arguments; he makes no gratuitous suppositions, he uses no arbitrary definitions ; no reason which is not the expression of a fact ; no fact which is not a statement of good or bad effects. It is by this logical method of reasoning that he has made a new science of civil law ; new and even paradoxical for those who have been bred in the opinions of the old schools ; but simple, natural, and even familiar, to those who have not been bewildered by false systems. A translation of this book will have, in all languages, the same sense and the same force, because it appeals to the universal experience of men ; whUe technical reasons — rea- sons founded upon abstract terms, upon arbitrary definitions having only a local value, and consisting only in words — ^vanish when one attempts to find synonyms by which to translate them. So the African tribes, who use sheila for money, become conscious of their poverty the moment they go beyond their own boundaries, and offer their conventional riches to strangers. I ought to add that Bentham made frequent digressions upon 92 PEIirCIPLES OF IHE CIVIL COBE. the laws of England, wliich I have suppressed, for they have only a local interest. There are cases, however, where his observations would have lacked a foundation if I had omitted to mention the particular laws which were their object. In seeking to be more clear, to develop that which in the original was often only an allusion, I may have made some mistakes, which it would be unjust to impute to the author. These laws are so difficult to understand, that it is dangerous for an Englishman who is not a lawyer to run the risk of speaking about them — a risk which, for obvious reasons, must be still greater in the case of a foreigner. 93 PART FIRST. OBJECTS OF THE CIVIL LAW. CHAPTEE I. Eights and Ohligations. Ail the objects which the legislator is called upon to distribute among the members of the community may be reduced to two 1st. Rights. 2nd. Ohligations. Eights are in themselves advantages, benefits, for him who enjoys them. Obligations, on the contrary, are duties, charges, onerous to him who ought to fulfil them. Eights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. In the nature of things, the law cannot grant a benefit to one without imposing, at the same time, some burden upon another ; or, in other words, it is not possible to create a right in favour of one, except by creating a corresponding obligation mposed upon another. How confer upon me the right of property in a piece of land ? By imposing upon aU others an obligation not to touch its produce. How confer upon me a right of com- mand ? By imposing upon a district, or a number of persons, the obligation to obey me. The legislator ought to confer rights with pleasure, since they are in themselves a good ; he ought to impose obligations with reluctance, since they are in themselves an evil. According to 94 PRINCIPLES OE THE CIVII. CODE. tte principle of utility, he ought never to impose a burden except for the purpose of conferring a benefit of a clearly greater valueu By creatiag obligations, the law to the same extent trenches upon liberty. It converts into offences acts -which -would other- -wise be permitted and unpunishable. The la-w creates an offence either by a positive command or by a prohibition. .; These retrenchments of liberty are ine-vitable. It is impossible, to create rights, to impose obligations, to protect the person, life, reputation, property, subsistence, liberty itself, except at the expense of liberty. But every restriction imposed upon liberty is subject to be foUo-wed by a natural sentiment of pain, greater or less ; and that independently of an infinite variety of inconveniences and suffer- ings, -which may result firom the particular manner of this restric- tion. It foUo-ws, then, that no restriction ought to be imposed, no po-wer conferred, no coercive law sanctioned, without a suffi- cient and specific reason. There is always a reason against every coercive law — a reason which, in default of any opposing reason, win always be sufiBcient in itself; and that reason is, that such a law is an attack upon liberty. He who proposes a coercive law ought to be ready to prove, not only that there is a specific reason in favour of it, but that this reason is of more weight than the general reason against every such law. The proposition that every law is contrary to liberty,* though! as clear as evidence can make it, is not generally acknowledged.' On the contrary, those among the friends of liberty who are more ardent than enlightened, make it a duty of conscience to combat- this truth. And how ? They pervert language ; they refuse to employ the word liberty in its common acceptation ; they speak a tongue peculiar to themselves. This is the definition they give of liberty : Liberty consists in the right of doing everything which is not injurious to another. But is this the ordinary sense of the word ? Is not the liberty to do evU liberty ? If not, what is it ? What word can we use iu speaking of it ? Do we not say that it * Those la-ws must be excepted by -which restrictive la-?rs are revoked, laws vihioh. permit -what other laws had forbidden. PKIlfCIPI.ES OF THB CITIL CODE. 95 is necessary to take away liberty from idiots and bad men, because they abuse it ? According to tbis definition, I can never know whether I have the liberty to do an action until I have examined all its conse- quences. If it seems to me injurious to a single individual, even though the law permit it, or perhaps command it, I should not be at liberty to do it. An officer of justice would not be at liberty to punish a robber, unless, indeed, he were sure that this punish- ment could not hurt the robber ! Such are the absurdities which this definition implies. What does simple reason tell us ? Let us attempt to establish a series of true propositions on this subject. The only object of government ought to be the greatest possible happiness of the community. The happiness of an individual is increased in proportion as his suflferings are lighter and fewer, and his enjoyments greater and more numerous. The care of his enjoyments ought to be left almost entirely to the individual. The principal function of government is to guard against pains. It fulfils this object by creating rights, which it confers upon individuals : rights of personal security, rights of protection for honour, rights of property, rights of receiving aid in case of need. To these rights correspond offences of different kinds. The law cannot create rights except by creating corresponding obligations. It cannot create rights and obligations without creating offences. It cannot command nor forbid without restraining the liberty of individuals. It appears, then, that the citizen cannot acquire rights except by sacrificing a part of his liberty. But even under a bad govern- ment there is no proportion between the acquisition and the sacri- fice. Government approaches to perfection in proportion as the sacrifice is less and the acquisition more. 96 PMKCIPLES OP THE CITIL CODE, CHAPTEE II. i:nds of Civil Law. In the distribution of rights and obligations, the legislator, as we have said, should have for his end the happiness of society. Investigating more distinctly in what that happiness consists, we shall find four subordinate ends : — Subsistence. Abundance. Equality. Security. The more perfect enjoyment is in aU these respects, the greater is the sum of social happiness : and especially of that happiness which depends upon the laws. "We may hence conclude that all the functions of law maybe referred to these four heads : — To provide subsistence ; to pro- duce abundance ; to favour equality ; to maintain security. This division has not all the exactness which might be desired; >' The limits which separate these objects are not always easy to be determined. They approach each other at different points, and mingle together. But it is enough to justify this division, that it is the most complete we can make; and that, in fact, we axe generally called to consider each of the objects which it con- tains, separately and distinct from all the others. Subsistence, for example, is included in abundance ; still it is very necessary to consider it separately ; because the laws ought to do many things for subsistence which they ought not to attempt for the sake of abundance. Security admits as many distinctions as there are kinds of actions which may be hostile to it. It relates to the person, the honour, to property, to condition. Acts injurious to security, branded by prohibition of law, receive the quality of offences. Of these objects of the law, security is the only one which ne- cessarily embraces the future. Subsistence, abundance, equality, may be considered in relation to a single moment of present PEIlfCIPtES OF THE CIYIL CODE. 97 time ; but security implies a given extension of future time in respect to all that good wHch it embraces. Seciuity, then, is the pre-eminent object. I have mentioned equality as one of the objects of lav. In an arrangement designed to give to all men the greatest possible sum of good, there is no reason why the law should seek to give more to one individual than to another. There are abundance of reasons why it should not ; for the advantages acquired on one side, never can be an equivalent for the disadvantages felt upon the other. The pleasure is exclusively for the party favoured ; the pain for all who do not share the favour. Equality may be promoted either by protecting it where it exists^ or by seeking to produce it. In this latter case, the greatest caution is necessary ; for a single error may overturn social order.* Some persons may be astonished to find that Liberty is not ranked among the principal objects of law. But a clear idea of liberty wiU lead us to regard it as a branch of security. Per- sonal liberty is security against a certain kind of injuries which affect the person. As to what is called political liherty, it is another branch of security, — security against injustice from the ministers of government. What concerns this object belongs not to civil, but to constitutional law. CHAPTEE III. Relations letween these Ends. These four objects of law are very distinct in idea, but they are much less so in practice. The same law may advance several of them ; because they are often united. That law, for example, * Equality may be considered in relation to all the advantages which depend upon laws. Political equality is an equality of poUtioal rights ; civil equality is an equality of civil rights. When used by itself, the word is commonly understood to refer to the distribution of property. It is go used in this treatise. 98 PEIHOIPIES OE THE CITIL CODE. wHcli favours secxirity, favours, at the same time, subsistence and abundance. But there are circumstances in vrhich it is impossible to unite these objects. It will sometimes happen that a measure sug- gested by one of these principles will be condemned by another. Equality, for example, might require a distribution of property which would be incompatible with security. When this contradiction exists between two of these ends, it is necessary to find some means of deciding the pre-eminence j otherwise these principles, instead of guiding us in our researches, will only serve to augment the confusion. At the first glance we see subsistence and security arising toge- ther to the same level ; abundance and equality are manifestly of inferior importance. In fact, without security, equality could not last a day ; without subsistence, abundance could not exist at all. The two first objects are life itself; the two latter, the ornaments of life. In legislation, the most important object is security. Though no laws were made directly for subsistence, it might easily be imagined that no one would neglect it. But unless laws are made directly for security, it would be quite useless to mate them for subsistence. You may order production; you may command cultivation; and you will have done nothing. But • assure to the cultivator the fruits of his industry, and perhaps in that alone you will have done enough. ] Security, as we have said, has many branches; and some branches of it must yield to others. For example, liberty, which is a branch of security, ought to yield to a consideration of the general security, since laws cannot be made except at the ex- pense of liberty. . | "We cannot arrive at the greatest good, except by the sacrific/^ of some subordinate good. All the difficulty consists in dis- tinguishing that object which, according to the occasion, merits pre-eminence. Por each, in its turn, demands it; and a very complicated calculation is sometimes necessary to avoid being deceived as to the preference due to one or the other. PKINCIPtES OP THE CIVIL CODE. 99 Equality ought not to be favoured except in the cases in which it does not interfere with security ; in which it does not thwart the expectations which- the law itself has produced, in which it does not derange the order already established. If all property were equally divided, at fixed periods, the sure and certain consequence would be, that presently there would be no property to divide. All would shortly be destroyed. Those whom it was intended to favour, would not suffer less from the division than those at whose expense it was made. If the lot of the industrious was not better than the lot of the idle, there would be no longer any motives for industry. To lay down as a principle that all men ought to enjoy a per- fect equality of rights, would be, by a necessary connection of consequences, to render all legislation impossible. The laws are constantly establishing inequalities, since they cannot give rights to one without imposing obligations upon another. To say that all men — that is, aU human beings — have equal rights, is to say that there is no such thing as subordination. The son then has the same rights with his father ; he has the same right to govern and punish his father that his father has to govern and punish him. He has as many rights in the house of his father as the father himself. The maniac has the same right to shut up others that others have to shut up him. The idiot has the same right to govern his family that his family have to govern him. AU this is fiilly implied m the absolute equality of rights. It means this, or else it means nothing. I know very weU that those who maintain this doctrine of the equality of rights, not being them- selves either fools or idiots, have no intention of establishing this absolute equality. They have, in their own minds, restrictions, modifications, explanations. But if they themselves cannot speak in an intelligible manner, will the ignorant and excited multitude understand them better than they understand themselves ? H 2 100 PEINCrPLES OP THE CITIl COBE. CHAPTEE IV. Laws relatively to Subsistence. "What can the law do for subsistence ? Nothing directly. AH it can do is to create motives, that is, punishments or rewards, by the force of which men may he led to provide suhsistence for themselves. But nature herself has created these motives, and has given them a sufS.cient energy. Before the idea of laws existed, needs and enjoyments had done in that respect aU that the best concerted laws could do. Need, arm«d with pains of all kinds, even death itself, commanded lahour, excited courage, in- spired foresight, developed all the faculties of man. Enjoyment, the inseparable companion of every need satisfied, formed an ia- exhaustible fund of rewards for those who surmounted obstacle^ and fulfilled the end of nature. The force of the physical sanc- tion being sufB.cient, the employment of the political sanction would be superfluous. Besides, the motives which depend on laws are more or less precarious in their operation. It is a consequence of the imper- fection of the laws themselves ; or of the diffl-Culty of proving the facts in order to apply punishment or reward. The hope of im- punity conceals itself at the bottom of the heart during all tie intermediate steps which it is necessary to take before arriving at the enforcement of the law. But the natural effects, which may be regarded as nature's punishments and rewards, scarcely admit of any uncertainty. There is no evasion, no delay, no favonr. Experience announces the event, and experience confirms it. Each day strengthens the lesson of the day before; .and the uniformity of this process leaves no room for doubt. "What could be added by direct laws to the constant and irresistible power of these natural motives ? ' But the laws provide for subsistence indirectly, by protecting men while they labour, and by making them sure of the fruits of their labour. Security for the labourer, security for the fruits of labour ; such is the benefit of laws ; and it is an inestimable benefit. ntlNCIPLES OP THE CXVIl CODE. 101 CHAPTEE V. Laws relativelg to Abundance, Shali laws be made directing individuals not to confine them- selves to mere subsistence, but to seek abundance ? No ! That would be a very superfluous employment of artificial means, where natural means suffice. The attraction of pleasure ; the succession of wants ; the active desire of increasing happiness, will procure unceasingly, under the reign of security, new efforts towards new acquisitions. Wants, enjoyments, those universal agents of society, having begun with gathering the first sheaf of com, proceed little by little, to build magazines of abundance, always increasing but never flUed. Desires extend with means. The horizon elevates itself as we advance ; and each new want, attended on the one' hand by pain, on the other by pleasure, becomes a new principle of action. Opulence, which is only a comparative term, does not arrest this movement once begun. On the contrary, the greater our means, the greater the scale on which we labour; the greater is the recompense, and, conse- quently, the greater also the force of motive which animates to labour. Now what is the wealth of society, if not the sum of all individual wealth? And what more is necessary than the force of these natural motives, to carry wealth, by successive movements, to the highest possible point ? It appears that abundance is formed little by little, by the continued operation of the same causes which produce subsist- ence. Those who blame abundance under the name of luxury, have never looked at it from this point of view. Bad seasons, wars, accidents of all kinds, attack so often the fund of subsistence, that a society which had nothing super- fluous, and even if it had a good deal that was superfluous, would often be exposed to want what is necessary. "We see this among savage tribes ; it was often seen among all nations, during the times of ancient poverty. It is what happens even now, in countries little favoured by nature, such as Sweden ; and in those 102 PEINCirMS OF THE CIVII. CODE. where government restrains the operations of commerce, instead of confining itself to protection. But countries in which luxury abounds, and -where governments are enlightened, are above the risk of famine. Such is the happy situation of England. With a free commerce, toys useless in themselves have their utihty, as the means of obtaining bread. Manufactures of luxury fumisli an assurance against famine. A. brewery or a starch-factory might be changed into a means of subsistence. How often have we heard declamations against dogs and horses, as devouring the food of men! Such declaimers rise but one degree above those apostles of disinterestedness, who set fire to the magazines in order to cause an abundance of corn. CHAPTEE VI. Pathological Fropositions wpon vMch the good ofJEquality is founded. Pathology is a term used in inedicine. It has not been intro' duoed into morals, where it is equally needed, though in a some- what different sense. By pathology, I mean the study and the knowledge of the sensations, affections, passions, and of their effects upon happiness. Legislation, which hitherto has been founded in a great measure only upon the quicksands of pre- judice and instinct, ought at last to be built upon the immoveable basis of sensations and experience. It is necessary to have a moral thermometer to make perceptible all the degrees of hap- piness and misery. This is a term of perfection which it is not possible to reach ; but it is well to have it before our eyes. I know that a scrupulous examination of more or less, in the matter of pain or pleasure, will at first appear a minute under- taking. It wUl be said that in human affairs it is necessary to act in gross ; to be contented with a vague approximation. This is the language of indifference or of incapacity. The sensations of men are suflciently regular to become the objects of a science and an art. Yet hitherto we have seen but essays, bUnd attempts, PEIJfCrPLES OV THE CEVIL CODE. 103 and irregular efforts not well followed up. Medicine has for its foundation the axioms of physical pathology. Morality is the medicine of the soul ; and legislation, which is the practical part of it, ought to have for its foundation the axioms of mental pathology. To judge of the effect of a portion of wealth upon happiness, it is necessary to consider it in three different states : — 1 st. "When it has always been in the hands of the holder. 2nd. "When it is leaving his hands. 3rd. "When it is coming into them. It is to be observed in general, that in speaking of the effect of a portion of wealth upon happiness, abstraction is always to be made of the particular sensibility of individuals, and of the exterior circumstances in which they may be placed. Differences of character are inscrutable ; and such is the diversity of circum- stances, that they are never the same for two individuals. TJnless we begin by dropping these two considerations, it will be imp6s- sible to announce! any. general. proposition. But though each of these propositions may prove false or inexact in a given indi- vidual ease, that will furnish' no argument against' their specu- lative truth and practical utility. It is enough for the justifica- tion of these propositions — 1st, If they approach nearer the truth than any others which can be substituted for them ; 2nd, If -with less inconvenience than any others they can be made the basis of legislation. I. Let us pass to the first case. The object being to examine the effect of a portion of wealth, when it has always been in the hands of the holder, we may lay down the following propositions : — 1st. Each portion of wealth has a corresponding portion of hap- 2nd. Of two iniivichtals with unequal fortunes, he who has the most wealth has the most happiness. 3rd. The excess in happiness of the richer will not he so great as the excess of his wealth. 4th. Por the same reasons, the greater the disproportion is between the two masses of wealth, the less is it prolalle that there 104 PBINCIPLES OP THE CIVIL CODE. exists a disproportion equally great letween the corresponding, masses of happiness. 5th. The nearer the actual proportion approaches to equality, the greater will he the total mass of happiness. It is not necessary to limit what is here said of wealth to the condition of those who are called wealthy. This word has a more extensive signification. It embraces everything which serves either for subsistence or abundance. It is for the sate of brevity that the -^hxase portion of wealth is used instead oi portion of the matter of wealth. I have said that for each portion of wealth there is a correspond- . ing portion of happiness. To speak more exactly, it ought rather to be said, a certain chance of happiness. Por the efficacy of a cause of happiness is always precarious ; or, in other words, a cause of happiness has not its ordinary effect, nor the same effect, upon all persons. Here is the place for making an application of what has been said concerning the sensibility and the character of individuals, and the variety of circumstances in which they are found. The second proposition is a direct consequence of the first. Of two individuals, he who is the richer is the happier or has the greater chance of heing so. This is a fact proved by the experience of all the world. The first who doubts it shall be the very witness I wiU call to prove it. Let him give all his superfluous wealth to the first comer who asks him for it ; for this superfluity, according to his system, is but dust in his hands ; it is a burden and nothing more. The manna of the desert putrefied, if any one collected a greater quantity than he could eat. If wealth resembled that manna, and after passing a certain point was no longer productive in happiness, no one would wish for it ; and the desire of accumulation would be a thing unknown. The third proposition is less likely to be disputed. Put on one side a thousand farmers, having enough to live upon, and a little more. Put on the other side a king, or, not to be encumbered with the cares of government, a prince, weU portioned, himself as rich as aU the farmers taken together. It is probable, I say, PEINCIPIES OP THE CIVIL CODE. 105 that his happiness is greater than the average happiness of the thousand farmers ; hut it is hy no means prohahle that it is equal to the sum total of their happiness, or, what amounts to the same thing, a thousand times greater than the average happiness of one of them. It would he remarkahle if his happiness were ten times, or even five times greater. The man who is horn in the hosom of opulence, is not so sensihle of its pleasures as he who is the artisan of his own fortune. It is the pleasure of acquisition, not the satisfaction of possessing, which gives the greatest delights. The one is a lively sentiment, pricked on hy the desires, and hy anterior privations, which rushes toward an unknown good; the other is a feeble sentiment, weakened hy use, which is not animated by contrasts, and which borrows nothing irom. the imagination. II. Passing to the second case, let us examine the effect of a portion of wealth, when it enters for the first time into the hands of a new possessor. It is to be observed that we must lay expectation out of view. It is necessary to suppose that this augmentation of fortune comes imexpectedly, as a gift of chance. 1st. A portion of wealth may be so far divided as to produce no happiness at all for any of the participants. This is what would happen, rigorously speaking, if the portion of each was less in value than the smallest known coin. But it is not necessary to carry the thing to that extreme, in order to make the proposition true. 2nd. Among participants of equal fortunes, the more perfectly equality is preserved in the distribution of a newportion of wealth, the greater will be the total mass of happiness. 3rd. Among participants of unequal fortunes, the more the dis- tribution of new wealth tends to do away that inequality, the greater will be the total mass of happiness. III. The third case requires us to examine the effect produced hy a portion of wealth which is leaving the hands of its former possessor. Here, too, we must lay expectation out of view, and suppose the loss to be unforeseen ; — and a loss almost always is so, because every man naturally expects to keep what he has. 106 PRINCIPLES OF THE CIVIL CODE. This expectation is founded upon the ordinary course of things. For in a general view of human affairs, wealth already acquired is not only preserved, but increased. This is proved by the extreme difference between the primitive poverty of every com- munity and its actual wealth. 1 St. The loss of a portion of wealth will produce, in the total ha^' piness of the loser, a defalcation greater or less, according to the proportion of the part lost to the part which remains. Take away from a man the fourth part of his fortune, and you take away the fourth part of his happiness, and so on.* But there are cases in which the proportion would not be the same. If, in taking away from me three-fourths of my fortune, you take away what is necessary for iny physical support, and if, in taking away half of it, you would have left that necessary portion untouched, the defalcation of happiness, instead of being twice as great in the first case as in the second, will be four times, ten times, indefinitely greater, 2nd. This granted, fortunes leing equal, the greater the numW of persons among whom a loss is shared, the less considerable wUl hi the defalcation from the sum total of happiness. 3rd. After passing a certain point, division renders the several quotas impalpable, and the defalcation in the sum total of happimi amounts to nothing. 4th. Fortunes being unequal, the loss of happiness produced by « given loss of wealth will become less in proportion as the distribution of the loss shall tend towards the production of an exact equality. But in this case we must lay out of view the inconveniences attendant on the violation of security. Governments, profiting by the progress of knowledge, have * It is to tHs head that the evils of deep play ought to be referred. Though the chances, so far as relates to money, are equal, in regard to pleasure, they are always unfavourable. I have a thousand pounds. The stake is five hundred. If I lose, my fortune is diminished one-half j if I gain, it is increased only by a third. Suppose the stake to be a thousand pounds. If I gain, my happiness is not doubled with my fortune ; if 1 lose, my happinesa is destroyed j I am reduced to indigence. PRINCIPLES OP THE CIVIL CODE. 107 favoured, in many respects, the principle of equality in the distri- bution of losses. It is thus that they have taken under' the pro- tection of the laws policies of insurance, those useful contracts by which individuals assess themselves beforehand to provide against possible losses. The principle of insurance, founded upon a cal- culation of probabilities, is but the art of distributing losses among so great a number of associates as to make them very light, and almost nothing. The same spirit has influenced sovereigns when they have indemnified, at the expense of the state, those of their subjects tvho have suffered either by public calamities or by the devas- tations of war. We have seen nothing of this kind wiser or better managed than the administration of the great Frederic. It is one of the finest points of view under which the social art can be considered. Some attempts have been made to indemnify individuals for losses caused by the offences of malefactors. But examples of this kind are yet very rare. It is an object which merits the attention of legislators ; for it is the means of reducing almost to nothing the evil of offences which attack property. To prevent it from becoming injurious, such a system must be arranged with care. It will not do to encourage indolence and imprudence in the neglect of precautions against offences, by making them sure of an indemnification ; and it is necessary to guard even more cautiously against fraud and secret connivances which might counterfeit offences, and even produce them, for the sake of the indemnity. The utility of this remedial process would depend entirely on the way in which it was administered ; yet the rejection of a means so salutary can only originate in a culpable indifference, anxious to save itself the trouble of discovering expedients. The principles we have laid down may equally serve to regulate the distribution of a loss among many persons charged with a common responsibility. If their respective contributions corre- spond to the respective quantity of their fortunes, their relative state wUl be the same as before ; but if it is desired to improve this occasion for the purposes of an approach towards equality, it 108 PEINCIPLES OE THE CIVIL CODE. is necessary to adopt a different proportion. To levy an equal impost, without regard to differences of fortune, -would be a third plan, which, would be agreeable neither to equality nor security. To place this subject in a clearer light, I shall present a mixed case, in which it is necessary to decide between two individuals, of whom one demands a profit at the expense of the other. The question is to determine the effect of a portion of wealth which, passing into the hands of one individual under the form of gain, must come out of the hands of another in the form of loss. 1st. Among competitors of equal fortunes, when that which is gained ly one -must he lost ly another, the arrangement pro- ductive of the greatest sum of good will he that which favours the old possessor to the exclusion of the new demandant. Por, in the first place, the sum to be lost, bearing a greater proportion to the reduced fortune than the same sum to the augmented fortune, the diminution of happiness for the one will be greater than the augmentation of happiness for the other ; in one word, equality will be violated by the contrary arrange- ment. * In the second place, the loser will experience a pain of disap- pointment; the other merely does not gain. Now the negative evil of not acquiring is not equal to the positive evil of losing. If it were, as every man would experience this evil for all that he does not acquire, the causes of suffering would be infinite, and men would be infinitely miserable. In the third place, men in general appear to be more sensitive to pain than to pleasure, even when the cause is equal. To such a degree, indeed, does this extend, that a loss which diminishes a man's fortune by one-fourth, wiU. taie away more happiness than he could gain by doubling his property. 2nd. Fortunes being unequal, if the loser is the poorer, theevil of the loss will he aggravated ly that inequality. 3rd. If the loser is the richer, the evil done ly am, attack wpon security will le compensated in part ly a good which will le great in proportion to the progress towards equality. * See the note upon gaming. TMs case is exactly the same. PRINCIPLES OP THE CITIL CODE. ' 109 By the aid of these maxims, which, to a certain point, have the character and the certainty of mathematical propositions, there might be at last produced a regular and constant art of indemnities and satisfactions. Legislators have frequently shown a disposition to promote equality under the name of equity, a word to which a greater latitude has been given than to justice. But this idea of equity, vague and half developed, fhas rather appeared an affair of instinct than of calculation. It was only by much patience and method that it was found possible to reduce to rigorous pro- positions an incoherent multitude of confused sentiments. CHAPTEE VII. Of 8e'6wity. We come now to the principal object of law, — the care of security. That inestimable good, the distinctive index of civili- zation, is entirely the work of law. "Without law there is no security ; and, consequently, no abundance, and not even a cer- tainty of subsistence ; and the only equality which can exist in such a state of things is an equality of misery. ' To form a just idea of the benefits of law, it is only necessary to consider the condition of savages. They strive incessantly against famine; which sometimes cuts off entire tribes. Rivalry for subsistence produces among them the most cruel wars ; and, like beasts of prey, men pursue men, as a means of sustenance. The fear of this terrible calamity silences the softer sentiments of nature ; pity *inites with insensibility in putting to death the old men who can hunt no longer. Let us now examine what passes at those terrible epochs when civilized society returns almost to the savage state ; that is, during war, when the laws on which security depends are in part sus- pended. Every instant of its duration is fertile in calamities ; at every step which it prints upon the earth, at every movement which it makes, the existing mass of riches, the fund of abundance and of subsistence, decreases and disappears. The cottage is no < PEINCIPIES OF THE CIVH, CODE. ravaged as well as the palace ; and how often the rage, the caprice even of a moment, delivers up to destruction the slow produce of the labours of an age ! Law alone has done that which all the natural sentiments united have not the power to do. Law alone is able to create a fixed and durable possession which merits the name of property. Law alone can accustom men to bow their heads under the yoke of foresight, hard at first to bear, but afterwards light and agree- able. Nothing but law can encourage men to labours superfluous for the present, and which can be enjoyed only in the future. Economy has as many enemies as there are dissipators — men who wish to enjoy without giving themselves the trouble of producing. Labour is too painful for idleness ; it is too slow for impatience. Praud and injustice secretly conspire to appropriate its fruits. Insolence and audacity think to ravish them by open force. Thus security is assailed on every side — ever threatened, never tran- quil, it exists in the midst of alarms. The legislator needs a vigilance always sustained, a power always in action, to defend it against this crowd of indefatigable enemies. Law does not say to man. Labour, and I will reward you ; but it says : Labour, and I will assure to you tlie enjoyment of thefrwilH of your labour — that natural and sufficient recompense which without me you cannot preserve ; I will insure it by arresting the hanS, which may seeh to ramish it from, you. If industry creates, it is law which preserves ; if at the first moment we owe all to labour, at the second moment, and at every other, we are indebted for everything to law. To form a precise idea of the extent which ought to be given to the principle of security, we must consider that man is not like the animals, limited to the present, whether as respects suffering or enjoyment ; but that he is susceptible of pains and pleasures by anticipation ; and that it is not enough to secure him from actual loss, but it is necessary also to guarantee him, as far as possible, against future loss. It is necessary to prolong the idea of his security through aU the perspective which his imagination is capable of measuring. PEINCIPIES OP THE CPVIL CODE. Ill This presentiment, whioli has so marked an influence upon the fate of man, is called expectation. It is hence that we have the power of forming a general plan of conduct; it is hence that the successive instants which compose the duration of life are not like isolated and independent points, but become continuous parts of a whole. Expectation is a chain which unites our present existence to our future existence, and which passes beyond us to the generation which is to foUow. The sensibility of man extends through, all the links of this chain. The principle of security extends to the maintenance of all these expectations ; it requires that events, so far as they depend upon laws, should conform to the expectations which law itself lias created. Every a|tack upon this sentiment produces a distinct and special evil, which may be called a pain of disappointment. It is a proof of great confusion in the ideas of lawyers, that they have never given any particular attention to a sentiment which exercises so powerful an influence upon human life. The word expectation is scarcely found in their vocabulary. Scarce a single argument founded upon that principle appears in their writings. They have followed it, without doubt, in many respects ; but they have followed it by instinct rather than by reason. If they had known its extreme importance they would not have faUed to name it and to mark it, instead of leaving it unnoticed in the crowd. CHAPTEE VIII, Of 'Property. The better to understand the advantages of law, let us endea- vour to form a clear idea of property. "We shall see that there is no such thing as natural property, and that it is entirely^ the work of law. Property is nothing but a basis of expectation ; the expecta- tion of deriving certain advantages from a thing which we are 113 PMNOIPIES OF THE CIVIL CODE. said to possess, in consequence of tte relation in wHcIl we stand towards it. There is no image, no painting, no visible trait, ■which can express the relation that constitutes property. It is not material, it is metaphysical ; it is a mere conception of the mind. To have a thing in our hands, to keep it, to make it, to sell it, to work it up into something else ; to use it — ^none of these physical circumstances, nor aU united, convey the idea of pro- perty. A piece of stuff which is actually in the Indies may belong to me, while the dress I wear may not^ The aliment which is incorporated into my very body may belong to another, to whom I am bound to account for it. The idea of property consists in an established expectation ; in the persuasion of being able to draw such or such an advan- tage from the thing possessed, ^according to the nature of the case. Now this expectation, this persuasion, can only be the work of law. I cannot count upon the enjoyment of that which I regard as mine, except through the promise of the law which guarantees it to me. It is law alone which permits me to forget my natural weakness. It is only through th» protection of law that I am able to inclose a field, and to give myself up to its cultivation with the sure though distant hope of harvest. But it may be asked, "What is it that serves as a basis to law, upon which to begin operations, when it adopts objects which, under the name of property, it promises to protect ? Have not men, in the primitive state, a natural expectation of enjoying certain things, — an expectation drawn from sources anterior to law? Yes. There have been from the beginning, and there always wiU be, circumstances in which a man may secure himself, hy his own means, in the enjoyment of certain things. But the catalogue of these cases is very limited. The savage who has killed a deer may hope to keep it for himself^o long as his cave is undiscovered ; so long as he watches to defend it, and is stronger than his rivals ; but that is all. HoV miserable and precarious is such a possession ! If we suppose the least agree- PEUTCIPIES OP THE CIVIL CODE. 113 ment among savages to respect tte acquisitions of each other, ■we see the introduction of a principle to which no name can he given hut that of law. A feehle and momentary expectation may result from time to time from circumstances purely physical; hut a strong and permanent expectation can result only from law. That which, in the natural state, was an almost invisihie thread, in the social state hecomes a cable. Property and law are bom together, and die together. Before laws were made there was no property; take away laws, and property ceases. As regards property, security consists in receiving no check, no shock, no derangement to the expectation founded on the laws, of enjoying such and such a portion of good. The legislator owes the greatest respect to this expectation which he has himself pro- duced. When he does not contradict it, he does what is essen- tial to the happiness of society ; when he disturbs it, he always produces a proportionate sum of evU. CHAPTEE IX. Answer to an Objection. BxjT perhaps the laws of property are good for those who have property, and oppressive to those who have none. The poor man, perhaps, is more miserable than he would be without laws. The laws, in creating property, have created riches only in relation to poverty. Poverty is not the work of the laws ; it is the primitive condition of the human race. The man who sub- sists only from day to day is precisely the man of nature — the savage. The poor man, in civilized society, obtains nothing, I admit, except by painful labour ; but, in the natural state, can he obtain anything except by the sweat of his brow ? Has not the chase its fatigues, fishing its dangers, and war its uncer- tainties ? And if man seems to love this adventurous life ; if he has an instinct warm for this kind of perils ; if the savage enjoys with delight an idleness so dearly bought ; — must we thence con- I 114 PEINCIPLES 01' THE CTVIL COBE. elude that he is happier than our cultivators? No. Their labour is more uniform, but their reward is more sure ; the woman's lot is far more agreeable ; childhood and old age have more resources; the species multiplies in a proportion a thousand times greater,— and that alone suffices to show on which side is the superiorit5> of happiness. Thus the laws, in creating riches, are the bene- factors of those who remain in the poverty of nature. AH parr ticipate more or less in the pleasures, the advantages, and the resources of civilized society. The industry and the labour of the poor place them among the candidates of fortune. And have they not the pleasures of acquisition ? Does not hope mix with their labours ? Is the security which the law gives of no importance to them ? Those who look down fr6m above upon the inferior ranks see all objects smaller; but towards the base of the pyra- mid it is the summit which in turn is lost. Comparisons are never dreamed of; the wish of what seems impossible does not torment. So that, in fact, aU things considered, the protection of the laws may contribute as much to the happiness of the cottage as to the security of the palace. It is astonishing that a writer so judicious as Beccaria has in- terposed, in a work dictated by the soundest philosophy, a douht subversive of social order. The right of property, he says, u a terrible right, which perhaps is not necessary. Tyrannical and sanguinary laws have been founded upon that right ; it has been frightfully abused; but the right itself presents only ideas of pleasure, abundance, and security. It is that right which has vanquished the natural aversion to labour ; which has given to man the empire of the earth ; which has brought to an end the migratory life of nations ; which has produced the love of country and a regard for posterity. Men universally desire to enjoy speedily — to enjoy without labour. It is that desire which is terrible ; since it arms all who have not against all who have. The law which restrains that desire is the noblest triumph of humanity over itself. PEUJCIPLES OE THE CITIL CODE. 115 CHAPTEE X. Analysis of the Evils which result from Attacks upon Property. We tave already seen that subsistence depends upon the laws ■which assure to the labourer the produce of his labour. But it is desirable more exactly to analyze the evils which result from violations of property. They may be reduced to four heads. 1st. Eoil of Non-Possession. — If the acquisition of a portion of wealth is a good, it follows that the non-possession of it is an evil, though only a negative evil. Thus, although men in the condition of primitive poverty may not have specially felt the want of a good which they knew not, yet it is clear that they have lost aU the happiness which might have resulted from its possession, and of which we have the enjoyment. The loss of a portion of good, though we knew nothing of it, is still a loss. Are you doing me no harm when, by false representations, you deter my friend from conferring upon me a favour which I did not expect ? In what consists the" harm ? In the negative evil which results from not possessing that which, but for your falsehoods, I should have had. 2nd. Pain of Losing. — Everything which I possess, or to which I have a title, I consider in my own mind as destined always to belong to me. I make it the basis of my expectations, and of the hopes of those dependent upon me ; and I form my plan of life accordingly. Every part of my property may have, in my esti- mation, besides its intrinsic value, a value of affection — as an inheritance from my ancestors, as the reward of my own labour, or as the future dependence of my children. Everything about it represents to my eye that part of myself which I have put into it — those cares, that industry, that economy which denied itself present pleasures to make provision for the future. Thus our property becomes a part of our being, and cannot be torn from us vpithout rending us to the quick. 3rd. Fea/r of Losing. — To regret for what we have lost is joined inquietude as to what we possess, and even as to what we may acquire. Por the greater part of the objects which compose sub- I 2 \ 116 PEI]!fCIPi,ES OF THE Cmi CODE. sistence and abundance being perishable matters., fature acqui- sitions are a necessary supplement to present posset'isions. 'Wlien insecurity reaches a certain point, the fear of losing prevents us from enjoying what we possess already. The care o.f preserving condemns us to a thousand sad and painful precautions, wLicli yet are always liable to fail of their end. Treasures are hidden or conveyed away. Enjoyment becomes sombre, furtive, and soli- tary. It fears to show itself, lest cupidity should be informed of a chance to plunder. 4th. Deadening of Indnistry . — When I despair of making myself sure of the produce of my labour, I only seek to exist from day to day. I am unwilling to give myself cares which wiU only be profitable to my enemies. Besides, the wiU. to labour is not enough; means are wanting. While waiting to reap, in the meantime I must live. A single loss may deprive me of the capacity of action, without having quenched the spirit of industry, or without having paralyzed my will. Thus the three first evilfl affect the passive faculties of the individual, while the fourth extends to his active faculties, and more or less benumbs them, It appears from this analysis that the two first evils do not go beyond the individual injured ; while the two latter spread through society, and occupy an indefinite' space. AJn attack upon the pro* perty of an individual excites alarm among other proprietors. This sentiment spreads from neighbour to neighbour, tUl at last the contagion possesses the entire body of the state. Power and will must unite for the development of industry." Wm depends upon encouragement ; power upon means. These means are what is called, in the language of political economy, productive capital. "When the -question relates only to an indi- vidual, his productive capital maybe annihilated by a single loss, while his spirit of industry is not extinguished, nor even weakened. When the question is of a Ration, the annihilation of its pro- ductive capital is impossible ; but a long time before that fatal term is approached, the evil may infect the wiU ; and the spirit of industry may fall into a fatal lethargy, in the midst of natural resources offered by a rich and fertile soU. The wiU, however, PEINCIPLES OP THE ctvIL CODE. 117 is excited by so many stimulants, that it resists an abundance of discouragements and losses. A transitory calamity, though great, never destroys the spirit of industry. It is seen to spring up, after devouring wars which have impoverished nations, as a robust oak, mutilated by tempests, repairs its losses in a few years and covers itself with new branches. Nothing is sufficient to deaden industry, except the operation of a domestic and permanent cause, such as a tyrannical government, bad legislation, an intolerant religion which drives men from the country, or a minute super- stition which stupifies them. A first act of violence produces immediately a certain degree of apprehension ; some timid spirits are already discouraged. A second violence, which soon succeeds, spreads a more considerable alarm. The more prudent begin to retrench their 'enterprises, and little by little to abandon an uncertain career. In proportion as these attacks are repeated, and the system .of oppression takes a more habitual character, the dispersion increases. Those who fly are not replaced; those who remain fall into a state of languor. Thus the field of industry, beaten by perpetual storms, at last becomes a desert. Asia Minor, Greece, Egypt, the coasts of Africa, so rich in agri- culture, in commerce, and in population, at the flourishing epoch of the Eoman empire, what have they become under the absurd despotism of the Turkish government? Palaces have been changed into cabins, and cities into harrlets. That government, odious to every thinking man, has never known that a state cannot grow rich except by an inviolable respect for property. It has never had but two secrets of statesmanship, — to sponge the people, and to stupify them. Thus the finest countries of the earth, wasted, barren, and almost abandoned, can hardly be recog- nised under the hands of barbarous conquerors. These evils ought not to be attributed to foreign causes. Civil wars, invasions, natural scourges, may dissipate wealth, put the arts to flight, and swallow up cities. But choked harbours are opened again ; communications are re-established ; manufactures revive ; cities rise from their ruins. AH ravages are repaired by 118 PEINCIPLES OV THE CITII. CODE. time, -while men continue to be men ; bnt there are no men to be found in those unhappy countries, where the slow but fatal despair of long insecurity has destroyed all the active facultieB of the soul. If we trace the history of this contagion, we shall see its first attacks directed against that part of society which is easy and well off. Opulence is the object of the first depredations. , Apparent superfluity vanishes little by little. Absolute need makes itself be obeyed in spite of obstacles. We must live ; but when man limits himself to living, the state languishes, and the lamp of industry throws out only a dying flame. Besides, abundance is never so distinct from subsistence, that one can be destroyed with- out a dangerous blow at the other. - "While some lose only what is superfluous, others lose a part of what is necessary ; for by the infinitely complicated system of economical connections, the opulence of a part of the citizens is the only fund upon which a part more numerous depends for subsistence. But another picture may be traced, more smHiag and not less instructive. It is the picture of the progress of secwity, and of prosperity, its inseparable companion. North America presents to 'US a most striking contrast. Savage nature may be seen there, side by side with civilized nature. The interior of that immense region ofiers only a frightful solitude, impenetrable forests or sterile plains, stagnant waters and impure vapours ; such is the earth when left to itself. The fierce tribes which rove through those deserts without fixed habitations, always occupied with the pursuit of game, and animated against each other by implacable rivalries, meet only for combat, and often succeed ia destroying each other. The beasts of the forest are not so dangerous to man as he is to himself. But on the borders of these frightful soU- tudes, what difierent sights are seen ! We. appear to comprehend in the same view the two empires of good and evil. Forests giye place to cultivated fields ; morasses are dried up, and the surface, grown firm, is covered with meadows, pastures, domestic animals, habitations healthy and smiling. Eising cities* are buUt upon regular plans ; roads are constructed to communicate between PEINCIPLES OP THE CPVIl CODE. 119 them; everything announces that men, seeking the means of intercourse, have ceased to fear and to murder each other. Har- hours filled with vessels receive aU the productions of the earth, and assist in the exchange of all kinds of riches. A numerous people, living upon their labour in peace and abundance, has succeeded to a few tribes of hunters, always placed between war and famine. "What has wrought these prodigies ? Who has renewed the surface of the earth ? Who has given to man this domain over nature — over nature embellished, fertilized, and perfected ? That beneficent genius is Security. It is security which has wrought this great metamorphosis. And how rapid are its operations ? It is not yet two centuries since William Penn landed upon those savage coasts, with a colony of true con- querors, men of peace, who did not soil their establishments with blood, and who made themselves respected by acts of beneficence and justice. CHAPTER XI. Opposition letween Security and Equality. In consulting the grand principle of security, what ought the legislator to decree respecting the mass of property already existing ? He ought to maintain the distribution as it is actually established. It is this which, under the name of justice, is regarded as his first duty. This is a general and simple rule, which applies itself to all states ; and which adapts itself to all places, even those of the most opposite character. There is nothing more different than the state of property in America, in England, in Hungary, and in Eussia. Generally, in the first of these countries, the culti- vator is a proprietor; in the second, a tenant; in the third, attached to the glebe ; in the fourth, a slave. However, the supreme principle of security commands the preservation of all these distributions, though their nature is so different, and though they do not produce the same sum of happiness. How make 120 PEINCIPLES OF THE CIVIL CODE. another distribution witlioiit taking a-vray from each that which he has ? And how despoil any without attacking the security of aU? When your new repartition is disarranged — that is to say, the day after its estahUshment — ^how avoid making a second ? Why not correct it in the same way ? And in the meantime, what becomes of security ? Where is happiness ? Where is industry ? When security and equality are in conflict, it will not do to hesitate a moment. Equality must yield. The first is the found- ation of life ; subsistence, abundance, happiness, everything' de- pends upon it. Equality produces only a certain portion of good. Besides, whatever we may do, it wiU never be perfect ; it may exist a day ; but the revolutions of the morrow will overturn it. The establishment of perfect equality is a chimera ; all we can do is to diminish inequality. If violent causes, such as a revolution of government, a division, or a conquest, should bring about an overturn of property, it would be a great calamity ; but it would be transitory ; it would diminish ; it would repair itself in time. Industry is a vigorous plant which resists many amputations, and through which a nutritious sap begins to circulate with the first rays of returning summer. But if property should be overturned with the direct intention of establishing an equality of possessions, the evil would be irreparable. No more security, no more industry, no more abundance ! Society would return to the savage state whence it emerged. _ If equality ought to prevail to-day it ought to prevail alwajrs. Tet it cannot be preserved except by renewing the violence by which it was established. It will need an army of inquisitors and executioners as deaf to favour as to pity ; insensible to the seductions of pleasure ; inaccessible to personal interest ; endowed with all the virtues, though in a service which destroys them all. The levelling apparatus ought to go incessantly backward and forward, cutting off aU that rises above the line prescribed. A ceaseless vigilance would be necessary to give to those who had dissipated their portion, and to take from those who by labour had augmented theirs. In such an order of things there would PKIlfCrPLBS OP THE dm, COKE. 121 be only one wise course for the governed, — that of prodigality ; there would be but one foolish course, — that of industry. This pretended remedy, seemingly so pleasant, would be a mortal poison, a burning cautery, which would consume tiU it destroyed the last fibre of life. The hostile sword in its greatest furies is a thousand times less dreadful. It inflicts but partial evils, which time effaces and industry repairs. Some small societies, in the first effervescence of religious enthusiasm, have established the community of goods as a funda- mental principle. Does any one imagine that happiness was gained by that arrangement ? For the sweet power of reward is substituted the sad impulses of pain. Labour, so easy and so Ught, when animated by hope, it is necessary under these systems to represent as a penitential means of escaping eternal punishment. So long as the religious impulse preserves its power, all labour, but all groan. So soon as it begins to grow weak, the society divides into tvt^o classes : one composed of de- graded fanatics, contracting all the vices of an unhappy super- stition; the others, lazy rogues, who are supported in a holy indolence by the dupes who surround them. The word equality becomes a mere pretext — a cover to the robbery which idleness perpetrates upon industry. Those ideas of benevolence and of concord which have seduced some ardent souls into an admiration of this system are only chimeras of the imagination. In the distribution of labours, what motive could determine any to embrace the more painful ? "Who would undertake gross and disagreeable functions ? Who would be content with his lot ? Wbo would not find the burden of his neighbour lighter than his own ? How many frauds would be contrived in order to lay upon others the labour from which all would endeavour to exempt themselves ? And, in the division, how impossible to satisfy all: to preserve the appearances of equality; to prevent jealousies, quarrels, rivalries, preferences. Who would settle the numberless disputes for ever breaking out ? What an apparatus of penal laws would be necessary as a sub- stitute for the sweet-liberty of choice, and the natural recompense 122 PHIlSrCIPIES OF THE CmL CODE. of labour ! One half the society would not suffice to regulate the other half. Thus this absurd and unjust system would only be able to maintain itself by means of a political and religious slavery, such as that of the Helots at Lacedsemon and^the Indians of Paraguay, in the establishments of the Jesuits. Sublime in- vention of legislators, which, to accomplish a plan of equality, makes two corresponding lots of good and of evil, and puts all the pain on one side and all the enjoyment on the other ! CHAPTER XII. Means of uniting Security and Equality. Is it necessary that between these two rivals. Security and Equality, there should be an opposition, an eternal war ? To a certain point they are incompatible ; but with a little patience and address they may, in a great measure, be reconciled. The only mediator between these contrary interests is time. Do you wish to foUow the counsels of equality without contra- vening those of security ? — await the natural epoch which puts an end to hopes and fears, the epoch of death. "When property by the death of the proprietor ceases to have an owner, the law can interfere in its distribution, either by limiting in certain respects the testamentary power, in order to prevent too great an accumulation of wealth in the hands of an individual ; or by regulating the succession in favour of equahty in cases where the deceased has left no consort, nor relation in the direct Une, and has made no will. The question then relates to new acquirers who have formed no expectations; and equality may do what is best for all without disappointing any. At pre- sent I only indicate the principle : the development of it may be seen in the second book. When the question is to correct a kind of civil inequaUty, such as slavery, it is necessary to pay the same attention to the right of property; to submit it to a slow operation, and to advance towards the subordinate object without sacrificing the pbhtcipies op the citil code. 123 principal .object. Men who are rendered free by these grada- tions, will be much more capable of being so than if you had taught them to tread justice under foot, for the sake of intro- ducing a new social order. It is worthy of remark that, in a nation prosperous in its agriculture, its manufactures, and its commerce, there is a con- tinual progress towards equality. If the laws do nothing to combat it, if they do not maintain certaiu monopolies, if they put no shackles upon industry and trade, if they do not permit entails, we see great properties divided little by little, without effort, without revolution, without shock, and a much greater number of men coming to participate in the moderate favours of fortune. This is the natural result of the opposite habits which are formed in opulence and in poverty. The first, prodigal and vain, wishes only to enjoy without labour ; the second, accus- tomed to obscurity and privations, finds pleasures even in labour and economy. Thence the change which has been made in Europe by the progress of arts and commerce, in spite of legal obstacles. We are at no great distance from those ages of feudality, when the world was divided into two classes : a few great proprietors, who were everything, and a multitude of serfs, who were nothing. JThese pyramidal heights have disappeared or have fallen; and from their ruins industrious men have formed those new establishments, the great number of which attests the comparative happiness of modem civilization. Thus we may conclude that Security, while preserving its place as the supreme principle, leads indirectly to JEpiaUty; while equality, if taken as the basis of the social arrangement, will destroy both itself and security at the same time. 124 PEINCIPLES OF THE CrTVIL CODE. CHAPTEE XIII. Sacrifice of Security to Security. This title appears at first enigmatical, but the sense of the enigma may easily he found. There is an important distinction between the ideal perfection of security, and its practicable perfection. The first would demand that nothing should ever be taken from anybody. The second is satisfied, if nothing is taken beyond what is necessary for the preservation of the rest. This sacrifice is not an attack upon security ; it is simply a defalcation. An attack is an unexpected shock, an evil wHcli cannot be calculated, an irregularity which has no fixed principle. It seems to put all the rest in peril ; it produces a general alarm. But a defalcation is a fixed, regular, and necessary deduction, which is expected ; which produces only an evil of the first order ; but no danger, no alarm, no discouragement to industry. The same sum of money, according to the way in which it is levied, will have one or the other of these characters ; and will conse- quently produce either the deadening effects of insecurity, or the vivifying results of confidence. The necessity of these defalcations is evident. To labour, and to guard the labourers, are two different operations, which cannot be performed at the same time, by the same persons. It is neces- sary that those who produce wealth by labour should lay aside some portion of it, to support the guardians of the state. "Wealth can only be defended at its own expense. Society, attacked by enemies, whether foreign or domestic, can only maintain itself at the expense of security, — not the security of those enemies alone, but the security even of the very persons to whom protection is extended. If there are men who do not perceive this necessary connection, it is because in this matter, as in many others, the want of to-day eclipses that of yesterday. The whole of government is but a tissue of sacrifices. The best is that in which these sacrifices PBINCIPLES OP THE CrVTL CODE. 125 are reduced to their lowest term. The practical perfection of security is a quantity which tends without ceasing to approach an ideal perfection. " It is not necessary to increase the real wants of the people, to satisfy imaginary wants of state." " Imaginary wants axe those created by the passions and the weaknessesof men who goyern, by the charm of an extraordinary project, the disordered love of empty glory, and a certain power- lessness of mind to resist the suggestions of fancy. It has often happened that imquiet spirits, placed by the prince at the head of affairs, have imagined that the wants of their own little souls were wants of the state." * The author of the Persian Letters has written too many chapters in the Spirit of Laws. What do we learn from this satirical description? If Montesquieu had condescended to give us a simple enumeration of the true wants of the state, we phould have known much better what he meant by imaginary wants. I proceed to give a catalogue of the cases in which the sacri- fice of some portion of security, so far as property is concerned, is necessary, to preserve the greater mass of it. 1st. General wants of the state for its defence against exterior enemies. 2nd. General wants of the state for its defence against violators of the laws, or internal enemies. 3rd. General wants of the state to furnish means of affording aid in cases of physical calamity. 4th. Amends levied upon delinquents, either as punishment, or as an indemnity in (favour of the parties injured. 5th. A tax upon the property of individuals to furnish the ability of applying remedies to the evils above mentioned, by means of courts of justice, institutions of police, and an armed force. ' 6th. Limitation of the rights of property, or of the use which each proprietor may make of his own goods, so as to prevent * Spirit of Lwws, book xiii. o. i. 126 PEnsrcrpiES or the cini code. him from employing them to his own injury or to that of others.* In all these cases the necessity is too palpable to need any proofs. But it must be noticed that the same reserves will equally apply to the other branches of security. It is not pos- sible, for example, to maintain the rights of person and of honour, except by penal laws ; and penal laws can hardly be executed, except at the expense of person or of honour. CHAPTEE XrV. Of some Cases liable to he contested. Ottght we to reckon among those wants of the state which ought to be provided for by forced contributions, the care of the in- digent, public worship, and the cultivation of the arts and sciences ? * We possess a general right of property over a tMng when we can apply it to every use, except certain uses which are forbidden for special reasons. These reasons may be referred to three heads : — 1st. Private detriment, when a given use of a thing woiild injure some other individual, either in his fortune or otherwise. 2nd. Public detriment, that which may result to the community in general. 3rd. Detriment to the individual himself. This sword is mine in full property ; but however complete that nght of property may be, as respects a thousand uses, I ought not to employ it to wound my neighbour, nor to cut his dress, nor to hold it up as a signal of insurrection. If 1 am a minor or a maniac, it may be takea from me, lest I should injure myself. An absolute and unlimited right of property over any object, would be the right to commit almost every crime. If I had such a right over a stick which I had out, I might employ it as a club to beat the passers-by, or convert it into a sceptre as a sign of royalty, or into an idol offensive to the national religion. raiNOIPLES OF THB CmX CODE. 127 Section I. Indigence. In. the highest state of social prosperity, the great mass of citizens will have no resource except their daily industry ; and consequently will be always near indigence, always ready to be thrown into a state of destitution, by accidents, such as revolu- tions of commerce, natural calamities, and especially sickness. Infancy has no means of subsisting by its own strength ; the feebleness of old age is equally destitute. These two extremes of life are alike in weakness. If natural instinct, humanity, shame, and the aid of the law, assure to children and old men the care and protection of their relatives, stiU these resources are precarious, and those who give may soon themselves be reduced to- want. A numerous family, supported in abundance by the labour of the father and mother, may lose at any instant half its resources by the death of one parent, and the whole by the death of the other. Old age is yet worse provided for. Love which descends has more force than love which ascends. Gratitude is less powerful than instinct. Hope attaches to feeble beings who are beginning life ; it promises nothing for those who are ending it. But sup- pose — ^what is not uncommon — suppose all possible care for the old ; the idea of changing the part of a giver for that of a receiver wiU always shed more or less of bitterness into the benefits received, especially at that epoch of decline when the morbid sensibility of the soul renders painful changes indifferent in themselves. This aspect of society is the saddest of all. It presents that long catalogue of evils which end in indigence, and consequently in death, under its most terrible forms. This is the centre towards which inertia alone, that force which acts without relaxation, makes the lot of every mortal gravitate. Not to be drawn into the abyss, it is necessary to mount up by a continual effort ; and we see by our side the most diligent and the most virtuous some- 128 PEIirCIPIES OP THE CIVIL CODE. ^ times slipping by one false step, and sometimes thrown headlong by inevitable reverses. There are only two means, independently of the laws, of making head against these evils, viz., smings and voluntary contributims. If these two resources would always suffice, we ought, by all means, to avoid any legal interference for the succour of the poor. A law which oifers to indigence an aid independent of industry is, to a certain extent, a law against industry — or at ledst against frugality. The motives to labour and economy are — present need and the fear of future need. The law which takes away that need and that fear is an encouragement to idleness and dissipation. Such is the reproach which is cast, and not without reason, upon most of the establishments created in favour of the poor. But a slight examination will be enough to convince us that the two means of succour, independent of the laws, are not siiffioient. "With respect to smings — if the greatest efforts of industry will not suffice for the daUy support of a numerous class, how can that class lay by for the future ? A second class may pay their daily • expenses by their daUy labour ; but they, vrill have nothing superfluous to lay aside against the necessities of a distant day. There will remain then only a third class, which, by economizing , during the age of labour, may, perhaps, be able to provide for the time when they can labour no longer. It is only these last to whom poverty can be ascribed as a sort of crime. " Economy," it wiU be said, "is a duty. If they have neglected it, so much the worse for them. If misery and death await them, they have nobody to accuse but themselves. Their catastrophe, howeTer,,(| will not be an unmixed evil. It will serve as a lesson to pro- digals. It is the execution of a law established by nature — a law which is not, like that of men, subject to uncertainty or injustice. Punishment does not fall save on the guilty, and it is exactly pro- portioned to the fault." This severe language might be justifiable if the object of the law were vengeance. But vengeance is condemned by the prin^ ciple of utility, as an impure motive founded upon antipathy. "What wiU be the fruit of these evils, this abandonment and this PBINCrPlES 01' THE CIVIL CODE. 129 indigence, wHcli you regard in your anger as a just punishment of prodigality ? Are you sure that these sacrificed victims will prevent, hy their example, the faults -which have led them into misfortune ? To think so would manifest a great ignorance of the human heart. The distress, the death of some prodigals, if we ought so to call those unfortunates who have not known how to deny themselves some of the little pleasures of their condition, who have not known the painful art of striving hy reflection against the temptations of every moment — their distress, I. say, even their death, will have hut little influence, in the way of instruction, upon the lahorious classes of society. That sad spec- tacle, the details of which for the most part would he concealed by shame, would not, like the punishment of malefactors, have a publicity which would attract a general attention, and not suffer its cause to be unknown. "Would those to whom the lesson was most necessary know how to give a fit interpretation to the event? Would they always seize upon the supposed connection between imprudence as the cause, and misfortune as the effect ? Might they not attribute the catastrophe to accidents unforeseen, and impossible to be foreseen ? In place of saying, ' ' Here is a man who has been the author of his own destruction ; his indigence ought to impel me to labour and frugality," — ^would they not often say, and with apparent reason, " Here is an unfortunate man, who has given himself a deal of trouble to no purpose, and whose case is a striking proof of the vanity of human prudence !" This would be bad reasoning, no doubt ; but must an error of logic be punished so rigorously — a mere want of reflection, and that too in a class of men more often called upon to exercise their muscles than their minds ? Besides, what shall we think of a punishment delayed in its execution tiU the very end of life, and which must begin to vanquish, at the other extremity of it — that is, in youth — the influence of the most imperious motives ? How feeble grows this pretended lesson in the distance ! How little resemblance there is between the old man and the yoimg man ! What is the example of the one to the other ? In youth the idea of immediate good 130 PEINCIPLES OP THE CXVII CODE. or OTil, ooGupying all the sphere of reflection, excludes the idea of distant good and evil. If you wish to act upon the young, place the motive near. Show them, for example, a marriage, or some other pleasure, in perspective. But a pain placed at a distance, beyond their intellectual horizon, is quite thrown away. Ton want to determine men who think very little ; and to draw in- struction from the misfortunes of others, it is necessary to think much. To what purpose employ a political means, designed, to operate upon a class having the least foresight, and yet of a nature to he efficacious only with philosophers ? To recapitulate. The resource of savings is insufficient. 1st, It evidently is so for those who do not gain enough to subsist upon ; 2nd, It is equally so for those who gain a mere subsist- ence. As to the third class, which embraces all not included in the first two, savings are not naturally insufficient, but they become so through the deficiency of human prudence. Let us now pass to the other resource — voluntary conirilutiom. That, too, has many imperfections. 1st. Its uncertainty. It wiU experience daUy vicissitudes, like the fortune and the liberality of the individuals on whom it depends . Is it insufficient ? Such j unctures are marked by misery and death. Is it superabundant? It will offer a reward to idleness and profusion, 2nd. The inequality of the burden. This supply for the wants of the poor is levied entirely at the expense of the more humane and the more virtuous, often without any proportion to their means ; while the avaricious calumniate the poor, to cover their refusal with a varnish of system and of reason. Such an arrange- ment is a favour granted to selfishness, and a punishment to humanity, that first of virtues. I say a punishment ; for though these contributions are called voluntary, what is the motive whence they emanate ? If it is not a religious or a political fear, it is sympathy, tender but sad, which presides over these generous actions. It is not the hope of : a pleasure which is bought at this price ; it is the torment of ' pity, which is sought to be avoided. Thus it has been noticed in PEINCTPLES 01' IHE CIVIL CODE. 131 Scotland, a country where indigence is Kmited to this sad resource, that paupers derive their principal support from the class nearest to pauperism. 3rd. The inconveniences of the distrihution. If these contrihu- tions are abandoned to chance, as in the case of alms asked on the highway ; if they are left to he paid, as occasion occurs, without any person intermediate between him who gives and him who asks, the uncertainty as to the suflB.ciency of these gifts is aggravated by another uncertainty. How appreciate in a multitude of cases the degree of want and of need ? May not the poor widow's farthing go to increase the ephemeral treasure of the impure woman ? How many generous souls like Sidney will be found, who will repel the vivifying draught from their parched lips, to say, I can yet wait ; first minister to that unfor- tunate, for his distress is greater than mine. Every one knows that in the distribution of these gratuitous gifts, it is not modest virtue, it is not true poverty, often mute and bashful, which obtains the larger part. There needs as much of management and intrigue to succeed upon this obscure theatre, as upon the brilliant scene of the world. He who knows how to importune, to flatter, to He, to mix boldness with baseness, and to vary his impostures according to the occasion, will have success such as the virtuous poor, devoid of artifice, and preserving their honour in their poverty, will not attain. Les vra/is talents se iaisent et ^enfwient, Dicowragis des affronts qu'ils essvAent. Les Java talents sont ha/rMs, effrontes, Sov/ples, adroits, et ja/ma/is rebutes. Discouraged ty affi"onta, true talents fly, And hide themselves in silence. Hardy and bold, Adroit and supple too, false taJents brave "What Voltaire says of talents may be applied to mendicity. In the division of voluntary contributions, the lot of the honest and virtuous poor is seldom equal to that of the impudent and obstreperous beggar. K 2 132 PEINCIPLES OP THE CIVIL COBE. Suppose that these contributions are put into a common firnd to be distributed by persons appointed for that purpose. This method is far preferable, since it admits a regular examination of wants and claims, and tends to proportion the aid accordingly; but it has also a tendency to diminish liberalities. That gift ■which is going to pass through the hands of a stranger, of wliicli I shall not follow the application, of which I shall not have the pleasure nor the immediate merit, has something abstract ahout it which chiUs sentiment. That which I give myself, I give at the moment when I am moved, when the cry of the poor is re-echoed in my heart, when there is only I to succour him. What I put into a general contribution may not have a destina- tion agreeable to my desires ; that poor coin which is much for me and my family will be but a drop to that mass of contribu- tions on the one hand, and that multitude of wants on the other; let the rich sustain the poor ! This is the way that many people reason, and it is on this account that contributions succeed better when taken for a particular class of individuals, than for an indefinite multitude like the entire mass of the poor ; yet it is for that mass that a permanent aid must be provided. It seems to me, after these observations, that we may lay it down as a general principle that the legislator ought to establish a regular contribution for the wants of indigence, it being under- stood that those only are to be regarded as indigent who are in want of what is absolutely necessary. Prom this definition of the indigent, it follows that their title as indigent is stronger than the title of the proprietor of superfluities as proprietor. Por the pain of death, which would presently fall upon the starving poor, would be always a more serious evil than the pain of disappoint- ment which falls upon the rich when a portion of his superfluity is taken from him.* In the amount of the legal contribution we ought not to go * When this tax is put upon » regular footing, and each proprietor knows beforehand what he must contribute, the pain of disappointment vanishes, and gives place to another, different in its nature, and less in degree. PBINCIPLES OF THE CTVIL CODE. 133 beyond what is simply necessary. To go beyond that ■would be taxing industry f&r the support of idleness. Those establish- ments which furnish more than is absolutely necessary are not good, except so far as they are supported at the expense of indi- viduals, for individuals can make a discrimination in the distri- bution of these aids, and apply them to specific classes. The details of the manner of assessing this contribution, and distributing its produce, belong to political economy, as also the inquiry into the means of encouraging a spirit of economy and foresight in the lower classes of society. We have some instruc- tive memoirs upon this interesting subject, but no treatise which embraces the whole question. Such a work should begin with the theory of poverty — that is, by a classification of the indigent and of the causes which bring on indigence, and thence proceed to suggest precautions and remedies. Section II. The Expenses of PMio TForsMpt If the ministers of religion are considered as charged with maintaining one of the sanctions of morality (the religious sanction), the expense of their support ought to be referred to the same branch of administration with justice and the police, viz., the support of internal seciirity. The clergy are a body of inspectors and moral instructors, who form, so to speak, the advanced guard of the law. They have no power against offences, but they combat the vices from which offences originate, and thus fender the exercise of authority more rare by maintaining morals and subordination. If they were charged with all the functions which might properly be assigned to them in the education of the inferior classes, in the promulgation of the laws, in the per- formance of divers public acts, the utility of their ministry would be more manifest. The more real services they rendered to the state the less would they be subject to those maladies of dogmatism and of controversy which spring from the desire of 134 PEINCrPLES OF THE CITIL CODE. making themselves distinguislied and from the ■want of power to be useful. It is necessary to direct their activity and their ambition towards salutary objects to prevent them from becoming mischievous. In this point of view, even those who do not acknowledge the truth of religion cannot complain at being called upon to contribute towards its support, since they participate in its advantages. But if there exists a great diversity of worship and religion, and the legislator is not fettered by an anterior establishment or particular considerations, it wiU-be more conformable to hberty and equality to apply the contributions of each religious eom- mimity to the support of their own church. It is true that in this arrangement we have cause to fear a spirit of proselytism on the part of the clergy ; but it is equally probable that a useful emulation will result from their reciprocal efforts, and that the balance of their influence will establish a kind of equilibrium in that fluid of opinions subject to such dangerous tempests. "We can imagine a very imfortunate case, that of a people to whom the legislator forbids the pubKc exercise of their rehgion, and at the same time imposes upon them the obligation of sup- porting a religion which they regard as hostile to their own. This would be a double violation of security. There would gradually be formed among this people an habitual sentiment of hatred against the government, a desire of change, a ferocious courage, a profound secrecy. The people, deprived of aU the advantages of a public religion, of known guides and of avowed priests, would be delivered up to ignorant and fanatical leaders, and as the maintenance of their worship would be a school of conspiracy, the faith of oaths, instead of being the safeguard of the state, would become its terror ; instead of binding the citizens to the government, it would unite them against it, so much so that such a people would become as formidable through their virtues as their vices. This is not an imaginary case, as the history of Ireland wUl show. PEINCIPLES OP THE CIVIL CODE. 135 Section III. The CuUivation of the Arts and Sciences, I shall not speak here of what ought to be done for what are called the useful arts and sciences ; nobody doubts that objects of pubUo utility ought to be sustained and encouraged by public contributions. But when the question relates to the cultivation of the fine arts, the embellishment of a country, edifices of luxury, objects of ornament and pleasure — in one word, to works of superfluity — ought we to raise forced contributions for their support ? Can taxes be justified for this brilliant, but superfluous end ? I do not desire to undertake here the support of the agreeable against the useful ; * nor to argue that the people should be dis- tressed in order to give fetes to a court, or pensions to buffoons. But one or two reflections may be offered by way of apology. 1st. The expense which is, or can be, incurred for these objects is commonly a trifling affair compared to the mass of necessary contributions. Let any one' undertake to restore to each his quota of this superfluous expense, and would it not be almost impalpable ? 3nd. This superfluous part of the contributions being con- founded with the mass of those which are necessary, the levy is imperceptible ; it excites no separate sensation which can give room to a distinct complaint; and the evil of the first order, limited to a sum so moderate, is not sufficient to produce an evil of the second order. 3rd. This luxury of taste may have a palpable utility by bringing together a concourse of strangers who spend their * Not that there is any real opposition between them ; everything that gives pleasure ia nsefiil ; but in common language, that is exclu- sively called useful which produces a permanent utility ; while the word agreeable is limited to an immediate utility, or a present pleasure. Many things, in fact, which we refuse to call useful, have a much more certain utility than some others, to which that epithet is usually applied. 136 PEINCTPLES OP TEE CFVIL CODE. money in the country. Little by little all nations become tribu- tary to her who holds the sceptre of the fashions. A country fertile in amusements may he looked upon as a great theatre, which is in part supported at the expense of a crowd of curious spectators drawn to it from all parts. It may happen, too, that this pre-eminence in objects of amuse ment, literature, and taste, tends to gain for a people the good wiU of other nations. Athens, which was called the eye of Greece, was saved more than once by the sentiment of respect which superiority of civilization inspired. The halo of glory which encircled that home of the arts served a long time to hide its weakness ; and everything which was not barbarian was in- terested in the preservation of a city, the centre of pohteness and of intellectual pleasures. But, after all, it must be admitted that this seducing object may be abandoned without risk to the sole resource of voluntary contributions. At least, everything essential ought to be pro- vided for before giving one's self up to expenses of pure orna- ment. It will be time to provide for actors, painters,- aad architects after the public faith is satisfied; when individuals have been indemnified for the losses occasioned by war, crimes, and physical calamities ; when the support of the indigent is pro- vided for ; tin then, all such expense would be an unjust pre- ference granted to brilliant accessaries over objects of necessity. Such expenses, under such circumstances, are very contrary to the interest of a sovereign, because the reproaches they occasion wiU always be much exaggerated ; for it needs no sagacity to invent them, but only passion and humour to set them distinctly forth. It is well knovm what eflcacy they have had when wrought into pieces of popular eloquence, and employed to stir up the people against regal government. Though it be true that (everything conspires to throw kings into this illusion,— so far as regards the luxury of amusements, have they ever fallen into excesses so great as those of many republics? Athens, at an epoch of most pressing dangers, despised alike the eloquence of Demosthenes and the threats of Philip, engrossed with a need PRINCIPLES OF THE CTVIL CODE. 137 more urgent tban defence, an object more essential than the maintenance of liberty. The gravest of crimes was the diversion, even for wants of the state, of the funds destined to the support of the theatres. And at Rome, was not the passion for spectacles carried to an equal extreme ? It was necessary to lavish the treasures of the world, and the spoils of nations, to captivate the sufirages of the sovereign people. Terror spread through a whole country, whenever a pro-consul was about to give a spectacle at Eome ; an hour of the magnificences of the circus cast into despair a hundred thousand inhabitants oi the pro- CHAPTER XV. Examples of Attacks wpon Security. It will be useful to give some examples of what I mean by attacks upon security. It will be a means of putting principles in a clearer light, and of showing that what is unjust in morals cannot be innocent in politics. Nothing is more common than to authorize under one name what would be odious under another. And here I cannot help observing the bad effects of one branch of classical education. We are accustomed from our earliest youth to see in the history of the Eoman people public acts of injustice, atrocious in themselves, always coloured with specious names, always accompanied by a proud eulogy on Eoman virtues. The abolition of debts plays a great part from the earliest times of the republic. A withdrawal of the people to Mount Aventine, when the enemy was at the gates of Eome, forced the Senate to pass a sponge over the rights of creditors. The historian excites qll our interest iu favour of the fraudulent debtors who paid their debts by a bankruptcy, and does not fail to render odious those who were despoiled by an act of violence. And what was gained by that injustice ? Usury, which had served as a pretext for the robbery, could not but be augmented the very next day after the catastrophe ; for the exorbitant rate of interest was only -.'1 138 PHINCIPLES OP THD CIYII. CODE. the price of the risk caused hy the unoertainty of engagements. The foimdation of the Eoman colonies has heen celebrated as a ■work of profound policy. It always consisted in despoiling a part of the lawful proprietors of a conquered country to create establishments in the way of favour or reward. This proceeding, so cruel in its immediate effects, was yet more fatal in its consequences. The Eomans, accustomed to violate aU the rights of property, knew not where to check themselves in this career. Thence the perpetual demand for a new division of lands, which was ever the fire-brand of the seditious, and which contributed under the triumvirate to a frightful system of general confiscations. The history of the republics of Greece is full of facts of the same kind, always presented in a manner plausible enough to lead astray superficial inquirers. What abuse of reasoning has there been upon that division of lands brought about by Lycurgus, to serve as a basis for his commimity of warriors ; in which, by an inequality the most shocking, all the rights are on one side, and aU the servitude on the other ! These attaehs upon security, which have found so many ofllcioua defenders when the question has been of the Greeks and the Eomans, have not experienced the same indulgence when the monarchs of the East have been the actors. The despotism of an individual has nothing seducing in it ; because it confines itself too evidently to his person alone ; there are a million chances of suffering from it, to one of enj oying. But the despotism exercised by a multitude deceives weak minds by a false image of the public good. "We place ourselves in imagination among the great number that commands, instead of supposing ourselves among the small number that yields and suffers. Let us, then, leave in peace the sultans and the viziers. "We may be sure their injustice wiU not be glossed over by the flatteries of historians. Their reputation serves as an antidote to their example. "We may dispense, for the same reason, with insisting upon such attacks upon security as national bankruptcies ; but we may remark, in passing, a curious effect of fideKty to engagements PraNCIPLES OE THE CITII, CODE. 139 upon tHe autliQrity of the government itself. In England, since the Eevolution, the engagements of the state have always been sacred ; so that individuals who lend to the government never demand any other pledge than the national credit ; . and the col- lection of the imposts assigned to pay the interest of the debt has always remained in the hands of the king. In France, under the monarchy, violations of the public faith were so frequent, that those who' made advances to the government were in the habit, from an early period, of requiring the collection of the im- posts to be intrusted to them, and of paying themselves with their own hands. But this arrangement cost the people dear ; for the public creditor had no interest to consult their conve- nience ; and it cost the prince yet dearer, since it deprived Iiitti of the affections of the people. "When, in ] 787, the announce- ment of a deficient revenue alarmed all the creditors of the state, that class so interested in England, in the maintenance of govern- ment, showed itself in France, ardent for a revolution. All thought they saw their own security in taking away from the sovereign the administration of the finances, and placing them in the hands of a national council. It is weU known how far the event answered to their hopes. But it is not the less interesting . to observe that the fall of that monarchy, which appeared so im- moveable, was owing, in no small measure, to the distrust which so many violations of the public faith had caused. But among the many attaohs wpon security committed through ignorance, inadvertence, or false reasons, it wiU suffice to note some individual cases. 1st. "We may regard as such, taxes umqmlly leviei, — ^those disproportioned imposts which spare the rich at the expense of the poor. The weight of this evil is aggravated by the sentiment of iajustice at the idea of paying more than one's fair proportion. Corvees axe the height of inequality ; since they faU. entirely upon those who have only their hands for their patrimony. So are imposts levied upon an uncertain fund ; upon persons who may have nothing to pay with. In that case, the evil takes another turn. Indigence may protect us from paying the tax, 140 PRINCIPLES OP XHI CIVIX CODE. but it subjects us at the same time to the gravest evils. The sufferings of "want take the place of the inconveniences of the impost. This is the reason -why a poll-tax is so unjust. It is possible to have a head, and to have nothing else. Imposts -which fetter industry, such as monopolies, and exclu- sive companies. The true method of estimating these imposts is, not to consider what income they pay, but what they prevent from being paid. Imposts upon necessaries. What physical privations, what maladies, what deaths they produce, no man can teE ! These sufferings, caused by the fault of the government, are confounded with natural evils which it cannot prevent. Imposts upon private sales. Generally speaking, it is necessity which causes these sales ; and the tax-gatherer, coming ia at an epoch of distress, levies an extraordinary tribute upon an unfor- tunate individual. Imposts upon public sales, or sales at auction. Here the dis- tress is fuUy proved ; often it is extreme, and the fiscal injustice is most ma,nifest. Taxes upon law proceedings. They include aU kinds of attacks upon security, since they are equivalent to refusing the protection of the law to all those who cannot pay for it. They consequently offer a hope of impunity to crime. It is only neces- sary to choose as objects of injustice individuals who cannot afford the advances necessary to a judicial prosecution, or who are not rich enough to run the risk. 2nd. A forced Elevation of the Value of Money. — This is a bank- ruptcy, since the government does not pay all that it owes ; a fraudulent bankruptcy, since there is a semblance of paying ; and a foolish fraud, which deceives nobody. As far as it goes, it is equivalent to an abolition of debts. The theft which the govern- ment commits upon its own creditors, it authorizes every debtor to commit upon his, though without any profit from it to the public treasury. And when this course of injustice is completed ; after this operation has enfeebled confidence, ruined honest men, enriched rogues, deranged commerce, disordered taxation, and PEDTCIPLES OP TEE Cim CODE. 141 caused a thousand individual evils, it does not leave the least advantage to the government which it has dishonoured. Expense and income presently return to the same proportions as hefore. 3rd. Forced Reduotion of the Rate of Interest. — Eegarded as a question of political economy, reducing the rate of interest by law is injurious to wealth, because it is prohibiting the payment of any premium for the introduction of foreign capital ; it is pro-, hibiting, in many cases, new branches of commerce,, and even old ones, if the legal interest is not sufficient to balance the risks of the capital employed. But with a more immediate view to security, it is taking away from lenders to give to borrowers. Let the rate of interest be reduced by law a fifth part below its natural level, and the event is the same to the lenders as if they were plundered every year by robbers of the fifth part of their fortunes. If the legislator finds it good to take away from a particular class of citizens a fifth part of their revenue, why stop there ? Why not take away another fifth part, and stiU another ? If the first reduction answered its end, a further reduction wiU answer it in the same proportion ; and if the measure is good in one case, why should it be bad in the other ? "Wherever we stop, it is necessary to have a reason for stopping ; but whatever reason prevents the second step will be just as good to prevent the first. This operation is exactly the same as diminishing rents under the pretext that the proprietors are useless consumers, and the farmers productive labourers. If you shake the principle of security as respects one class of citizens, you shake it for all. The bundle of rods is its emblem. 4th. General Confiscations. — I refer to this head vexations exer- cised upon a sect, upon a party, upon a class of men, under the vague pretext of some political crime — a pretext so vague that, while it is pretended that the confiscation is a punishment, there is often room to believe that the crime has been created for the sake of the confiscation. History presents many examples of such robbery. The Jews have often been its object ; they were too rich not to be always guilty. Financiers and farmers of the public 142 ranfciPLEs of the cini. code. revenue, for the same reason, have been often subjected to what were called chambers of .fire {chamlres ardentes). While the order of succession remained unfixed, everybody at the sovereign's death might become guilty ; and the spoils of the vanquislied formed, in the hands of the successor, a treasure of rewards. In . a republic torn by factions, each half of the nation denotmces the other as traitors ; and let the system of confiscations be once intro- duced, and parties, as at Eome, become in turn the devoureis of each other. The crimes of the powerful, and especially the crimes of the popular party in democracies, have always found apologists. "The greaterpart of these great fortunes," it is said, "have been founded upon injustice ; and what has been plundered from the public may as well be restored to the public." To reason in this way is to open an unlimited career to tyranny. It is a permission to presume crime instead of proving it. According to this logic, it is impossible for a rich man to be innocent. Ought a punish- ment so severe as confiscation to be iaflicted in gross, without examination, without detail, without proof? Does a procedure which would be declared atrocious if employed against an individual, become lawful when directed against a whole class of citizens ? Can we make ourselves deaf to the evil we are doing because of the number of the suflferers whose cries are mingled together in this common shipwreck ? To plunder great proprietors, imder the pretext that some of their ancestors have acquired their opulence by unjust means, is Kke bombarding a city because some robbers are thought to be concealed in it. 5th. Dissolution of Convents and of Monastic Orders. — The decree for their abolition was signed by reason itself ; but its execution should not have been abandoned to prejudice and to avarice. It would have been enough to have forbidden these societies to admit new members. In that case they would have died away gra- dually. Individuals would have suffered no privation. The revenues as they fell in might have been appropriated to some useful object ; and philosophy would have applauded an operation excellent in principle and mUd in its execution. But this slow PEINCIPIE3 OP TEE CITEL CODE. 143 process is not that ■which cupidity loves. It would seem as if sovereigns, in dissolving these societies, had wished to punish the members for some wrong they had done. In place of regarding them as orphans and invalids, deserving all the compassion of the legislator, they were looked upon as enemies, who were treated with clemency even when they were stripped of all their wealth and reduced to absolute want. 6th. Stippression of Pensions and Places without Indemnity to the Possessors. — This attack upon security merits the rather a parti- cular mention, because, instead of being blamed as an injustice, it is often approved as an act of economy and reform. Envy is never so much at its ease as when it can conceal itself under the mask of patriotism and the public good. But the public good requires only the abolition of sinecures ; it does not demand the ruin of the persons who hold them. The principle of security requires that reform should be attended with complete indemnity. The only benefit that can be lawfully drawn from it is the conversion of a perpetual into a life annuity. Is it said that the immediate suppression of these places will be a gain to the pubHe ? This argument is sophistical. The sum in question would doubtless be a gain, considered in itself, if it came from abroad, or if it were acquired by commerce ; but it is not a gain when taken from the hands of certain individuals, who are themselves a part of the public. "Would a family be the richer because the father had taken everything from one of his children, the better to endow the others ? Even in such a case, the spoils of one child would increase the inheritance of his brothers, and the evil would not be a total loss ; it would produce a portion of good. But when the question is of the pubHc, the profit of a place suppressed is divided among the whole community, while the loss falls entirely upon one. The gain, spread among the multitude, is divided into impalpable parts ; the loss is whoUy felt by him who alone supports it. The result tof the operation is this — it does not enrich the party that gains, and it reduces him who loses to poverty. Instead of one place suppressed, suppose 144 PEIIfCIPLES OF THE CITIL CODE. a thousand, ten thousand, a hundred thousand. The total disad- vantage will remain the same. The plunder taken from thousands of individuals must be divided among millions. Tour streets will everywhere present unfortunate citizens whom you will have plunged, into indigence ; and you will hardly see an individual who will be sensibly the richer by virtue of these cruel operations. Groans of pain and cries of despair wiU resound on every side. The cries of joy, if there are any, will not be expressions of hap- piness, but of that antipathy which rejoices in the misery of its victims. Ministers of kings and of the people, it is not by the wretchedness of individuals that you will produce the happiness of nations ! The altar of the public good demands barbarous sacrifices as little as the altar of the Divinity. I cannot yet quit the subject ; for the establishment of the principle of security demands that error should be pursued into all its retreats. What means do men take to deceive themselves or to deceive the people on the subject of such great injustice ? They have recourse to certain pompous maxims which are a mixture of truth and falsehood, and which give to a question, simple ia itself, an air of depth and political mystery. The interest of individuals, it is said, ought to yield to the public interest. But what does that mean ? Is not one individual as much a part of the public as another? This public interest, which you intro- duce as a person, is only an abstract term ; it represents nothing but the mass of individual interests. It is necessary to take them all into account, instead of considering some as all, and the others as nothing. If it is a good thing to sacrifice the fortune of one individual to augment that of others, it wiU be yet better to sacrifice a second, a third, a hundred, a thousand, an unlimited number ; for whatever may be the number of those you have sacrificed, you wiU always have the same reason to add one more. In one word, the interest of everybody is sacred, or the interest of nobody. •Individual interests are the only real interests. Take ete of the individuals ; never molest them, never suffer any one to PKDTCTPIES OF THE CITIL CODE. 145 molest them, and you will have done enough for the public. 'Wotild it be believed that there are men so absurd as to love pos- terity better than the present generation ; to prefer the man who is not to the man who is ; to torment the living tinder pretext of di)ing good to those who are not bom, and who perhaps never will be? Upon a multitude of occasions, men who have suffered by the operation of a law have not dared to complain, or have not been listened to, by reason of this false and obscure notion, that private interest ought to yield to pubUe interest. But if it comes to a question of generosity, who is loudest called upon to exercise it, — the whole towards one, or one towards the whole ? An evil felt, and a benefit not felt ; such is the result of these admirable operations by which individuals are sacrificed to the public ! I shall conclude by a general observation of great importance The more the principle of property is respected the stronger hold it takes on the popular mind. Slight attacks upon" this principle prepare the way for heavier ones. A long time has been neces- sary to carry property to the point where we now see it in civilized societies ; but a fatal experience has shown with what facility it can be shaken, and how easUy the savage instinct of plunder gets the better of -the laws. Governments and the people are, in this respect, like tamed lions ; let them but taste a drop of blood, and their native ferocity revives. Si torrida parvus Vemt in ora cruor, red/kmt rabiesgue fv/rorque ; AdmowitcBque tv/ment gustato samgvAme foMces, Femiet, et a trepido vix dbsimet ora magisivo. LucAN, iv. If but a little blood Touch his hot mouth, fury and rage return j His counselled jaws swell with the tasted gore ; He ravBS ; and from his trembling keeper scarce Bestrains his teeth. 146 PEINCIPIES OF THE CITH CODE. CHAPTEE XVI. Forced Exchanges. "AsiTAGES, in Xenophon's Cyropccdda, asks Cyrus to give an account of his last lesson. Cyrus answers thus : ' One of the hoys in our school who had a coat too small for him gave it to one of his companions a little smaller than himself, and took away his coat, which was too large. The preceptor made me the judge of this dispute, and I decided that the matter should be left as it was, since both parties seemed to he hotter accom- modated than before. Upon which the preceptor pointed out to mie that I had done wrong, for I had been satisfied with con- sidering the convenience of the thing, whereas I ought first to have looked at the justice of it ; and justice never would allow violence to be done to anyone's property.' " — Montrngne's JEssaya, book i. ch. xxiv. What ought we to think of this decision ? At the first view it would appear that a forced exchange is not contrary to security, provided an equal value is given. How can I be said to lose in consequence of a law, if, after it has had its full effect, tbe amount of my property remains the same as before ? If one has gained, and the other has not lost, the operation seems to be a good one. No ; it is not. He whom you suppose to have lost nothing by a forced exchange, in reality has lost; since everything moveable or immoveable has different values for different persons, accord- ing to circumstances, and every one expects to enjoy the favoiB' ' able circumstances which may augment the value of such or such a part of his property. If the house that Peter occupies would be more valuable to Paul, that is no reason why Paul should be gratified by forcing Petor to yield the house to him for the sum which it is worth to himself. That would be to deprive Peter of the benefit which he has a right to derive from the very circum- stance that the house is worth more to Paul. And suppose Paul should say that for the sake of peace he PEINCIPLES OF THE Crvn CODE. 147 had offered a price above tte ordinary value, dnd that Peter reftises it out of pure obstinacy, still it might be replied to him, " This surplus of price -which you pretend to have offered is only a supposition of yours." The opposite supposition is just as pro- bable. For if you had really offered more than the house is worth, he -would have hastened to seize so favourable a circum- stance, which might not occur again, and the bargain would have been soon concluded. If he did not accept your offer it is a proof that you were deceived in your estimate, and that if the house were taken from him on the conditions you propose, it would be an injury to his fortune, if not to what he possesses, at least to what he has a right to acquire. No, Paul will reply ; he knows that my estimate is higher than anything he can expect in the ordinary course of things ; but he also knows my necessity, and he refuses a reasonable offer in hopes to derive an unfair advantage from my situation. I perceive a principle which may serve to settle this difference between Paul and Peter. Things must be distinguished into two classes, those which ordinarily have only their intrinsic value, and those which are susceptible of a value of affection. Houses of the common sort, fields cultivated in the usual way, a crop of hay or com, and ordinary kinds of manufactures, seem to belong to the first class. To the second may be referred pleasure- grounds and gardens, libraries, pictures, statues, collections of natural history. A forced exchange of such objects should never be permitted. The value they derive from a sentiment of affec- tion cannot be appreciated. But objects of the first class may be submitted to forced exchanges whenever it is the only means to prevent great losses. I possess a piece of land from which I derive a considerable revenue, but which I can approach only by a road running along the edge of a river. The river overflows and washes away the road. My neighbour obstinately refuses me a passage along a strip of land which is not worth the hundredth part of my field. Ought I to lose my all through the caprice or hostility of an unreasonable neighbour ? But to prevent the abuse of a principle so delicate, rigorous L 2 148 PEiircrPLES of the ctvxl code. rules ought to be laid down. I say, then, that Jforced exchanges ought to he permitted to prevent a great loss, as in the case of a field rendered inaccessible except by a passage through another. By observing aU the scruples of the English legislators in this behalf, we may perceive the respect which is paid in that countty to the rights of property. If a new road is to be opened, anAct of Parliament must be first obtained. All interested are heard, and the legislature, not content with assigning an equitable satis- faction to the proprietors, protects houses, gardens, and such other objects as may have a value of affection, by special exceptions in the Act. Forced exchanges may also be justified whenever the obstinacy of an individual or of a small number are clearly hostile to the advantage of a great number. So in the .matter of the English Inclosure Acts, the opposition of a few has not been suffered to prevail, and the sale of houses is often compelled by the law where the convenience or the health of cities requires it. The question is of forced esoehmges, not of forced transfers, for a transfer is not an exchange ; and a forced transfer without equivalent, even for the benefit of the state, would be a mere injustice, an act of power devoid of that tenderness which the principle of utility ever demands. CHAPTER XVII. Power of the Laws over Expectation. The legislator is not master of the dispositions of the human heart, he is only their interpreter and their minister. The good- ness of the laws depends upon their conformity to general ex- pectation. The legislator ought to be well acquainted with the progress of this expectation, in order to act in concert with it. This should be the end ; let us inquire into the conditions neces- sary to attain it. 1st. The first of these conditions, but at the same time the most difficult to fulfal, is this, that the laws should be anterior to expecta- PEINCIPLES OF THE CIVIL COBB. 149 Hon. If we could suppose a new people, a generation of children, the legislator 'finding no expectations already formed in contra- diction to his views, might fashion them at his pleasure, as the statuary does a block of marble. But as there exists already among all people a multitude of expectations founded upon ancient laws or ancient usages, the legislator is forced to follow a system of conciliation and of humouring which constantly fetters him. The very first laws found some expectations already formed. For we have seen that prior to laws there existed a feeble kind of property — ^that is, a sort of expectation of preserving what had been acquired. The laws received their fiist determination from these anterior expectations, they have produced new ones, and have gradually formed the channel of our desires and hopes. No changes can be made in the laws of property without derangiug, more or less, this established current, and without opposing more or less resistance to it. Do you find it necessary to establish a law contrary to the actual expectations of men ? If it is possible, you should so arrange matters that this law will not begin to take efiect except at a remote period. The present generation wiU not feel the change, and the rising generation wUl be prepared for it. You will find among the young auxiliaries against old opinions, you will not wound actual interests, because time wiU be allowed to prepare for a new order of things. Everything will become easy to you, because you wiU have prevented the birth of those expectations which otherwise you would have been compelled to contradict. 2nd. The second condition is, that the laws should he Icnown. A law which is unknown can have no effect upon expectation, it win not even serve to prevent a contrary expectation. This condition, it will be said, does not depend upon the nature of the law, but on the measures which are taken to make it public. These measures may be sufficient for their object, whether the law be so or not. This reasoning is more specious than true. There are some 160. PKINCrPLES OE THE CIVII, CODE. laws so made as to he more easily known tlian otters. These are laws conformable to expectations already formed,, -laws which rest upon natural expectations. This natural expectation, that is, this expectation produced by previous habits, may be founded upon a superstition, upon a hurtful prejudice, or upon a percep- tion of utility, it makes no difference which, the law which is conformed to it is easUy borne in mind ; in fact, it was in the mind before it received the sanction of the legislator. But a law contrary to this natural expectation is difficult to be understood, and still more difficult to be remembered. Another arrangement always suggests itself, while the law, strange to all, and without any root in the mind, tends constantly to slip from a place to which it has only an artificial adhesion. Codes of ritual law have this inconvenience among others, that the fantastic and arbitrary rules of which they are com- posed, never well known, fatigue the imderstanding and the memory ; so that man, always fearful, always in fault, always defiled by some imaginary sin, can never count upon innocence, and lives in perpetual need of absolution. Expectation naturally directs itself towards the laws which are most important to society. The stranger who commits a theft, a forgery, an assassination, should not be suffered to plead ignorance of the laws of the country, since he could not be ignorant that acts so manifestly hurtful were crimes everywhere. 3rd. The third condition is, that the laws should he consistent. This principle is closely connected with tie preceding, hut it serves to place a great truth in a new light. When the laws have established a certain arrangement upon a principle generally admitted, every additional arrangement which is consistent with that principle will prove to be conformable to the general expec- tation. Every analogous law is presumed, as it were, heforehani Each new application of the principle contributes to strengthen it. But a law which has not this character remains isolated in the mind ; and the influence of the principle to which it is opposed is a force which tends, without ceasing, to drive it from the memory. PBINCIPLES OP THE CITIL COBE. 151 That Tipoii a man's death his property should go to the next of kin, is a rule generally admitted, and according to which expec- tations are naturally formed. A lav directing the order of suc- cession, ■which should conform to this principle, woidd obtain a general approbation, and would be universally understood. But the more this principle is obscured, by admitting exceptions, the more difficult it is to understand the law and to remember it. The English Common Lmo affords us a striking example. It is so complicated in its provisions regulating the descent of property, it admits distinctions so singular, the decisions which serve to regulate it are so subtle, that not only is it impossible for simple good sense to presume its regulations beforehand, but it is very difficult to discover them at all. It is a profound study, like that of the most abstract sciences, confined to a small number of pri- viTeged men. It has been even necessary to sub-divide it, for no lawyer pretends to understand the whole of it. Such has been the flniit of too superstitious a respect for antiquity ! When new laws are made in opposition to a principle estab- lished by the old ones, the stronger that principle is, the more odious wiU the inconsistency appear. A contradiction of senti- ment results from it, and disappointed expectations accuse the legislator of tyranny. In Turkey, when an officer of the government dies, the Sultan takes possession of his entire fortune, and his children fall at once from the height of opulence to the depths of poverty. This law, which overturns all natural expectations, was perhaps borrowed from some other oriental government, in which it was less incon- sistent and less odious, because the sovereign entrusted employments only to eunuchs. 4th. The fourth condition is, that the laws should he consistent with, the principle of utility ; for utility is a point towards which all expectations have a natural tendency. It is true that a law conformable to utility may happen to be contrary to public opinion ; but this is oiHy an accidental and transitory circumstance. All minds wiU be reconciled to the law so soon as its utility is made obvious. As soon as the veil which 152 PEINCIPLES OF THE CrVTI. CODE. conceals it is raised, expectation wUl be satisfied, and the public opinion be gained over. iN'o'w, it is plain that the more the laws are conformed to utUity, the more manifest it is possible for their utility to become. If we ascribe to a thing a quality -which it does not possess, the triumph of error can exist but for a time— a single ray of light wiU suffice to dissipate it. But a quality i: which actually exists, although not known, may chance to be dis- covered at any instant. At the first moment, an innovation is surrounded by an impure atmosphere ; a mass of clouds formed hy caprices and prejudices float about it ; and the appearance of things is changed by the refractions it undergoes in the passage through so deceitful a medium. It needs time for the sight to grow strong, and to acquire the power of separating from the object all that is foreign to it. But, little by little, truth gains the ascendant. If the first attempt does not succeed, the second will be more fortu- nate, because it will be better known where lies the difficulty which it is necessary to conquer. The plan which favours the most interests cannot fail in the end to gain the most sufErages ; and the useful novelty, which at first was repulsed with affright, becomes presently so familiar that no one recollects its commence- ment. 5th. The &fth. condition is method in the laws. The bad arrange- ment of a code of laws may produce, by its effect upon expecta- tion, the same inconveniences with incoherence and inconsistency. There may result from it the same difficulty of understanding the law, and of remembering it. Every man has his limited measure of understanding. The more complex the law is, the more it is above the faculties of a great number. In the same proportion it is less known ; it has less hold upon men ; it does not present itself to their minds upon the necessary occasions; or, what is yet worse, it deceives them, and produces false expecta^ tions. Both the style and the method should be simple ; the law ought to be a manual of instruction for each individual; and every one should be enabled to consult it in doubtful cases, without the aid of an interpreter. The more the laws conform to the principle of utility the PEOrCIPLES OP THE CITIL CODE. 153 simpler they will become ; for a system founded upon a single principle may be as simple in form as in substance. It is only such a system which is susceptible of a natural method, and a familiar nomenclature. 6th. To become the controller of expectation, the law ought to present itself to the mind as certain to he executed; at least, no reason for presuming the contrary ought to appear. Is there ground for supposing that the law will not be executed ? An expectation is formed contrary to the law itself. The law, then, is useless. It never exercises its power except to punish ; and these ineiSoacious punishments are an additional reproach to the law. Contemptible in its weakness, odious in its force, it is always bad, whether it reaches the guilty or suffers him to escape. This principle has often been absurdly disregarded. For example, during Law's paper-money system, when the citizens of France were forbidden to keep in their houses more than a certain sum in coin, — could not everybody presume on the suc- cess of disobedience ? How many mercantile prohibitions are vicious in this parti- cular ! A multitude of rules easily eluded, form, so to speak, a lottery of immorality, in which individuals stake their money against the legislator and the custom-house. It is in accordance with this principle that the domestic authority has been established in the hands of the husband. If it had been given to the woman, the physical power being on one side, and the legal power on the other, the discord would have been eternal. If an equality had been established between them, this nominal equality could never have been maintained, because of two opposite wills one or the other must have the sway. The existing arrangement is most, favourable to the peace of families, because, in making the physical and legal power operate in concert, everything is combined which is necessary for effectual action. This principle affords a great assistance towards the resolution of certain problems which have very much -embarrassed the lawyers J such, for instance, as this — in what cases ought a vX 154 PEIKCTPLES OF THE CIVIL CODE. thing found to belong to the finder? The easier it -would be to appropriate the thing in spite of the law, the more expedient is it not to make a law ■which wiU disappoint expectation ; or ia other ternjs, the easier it is to elude the law, the more cruel it would be to make a law which, presenting itself to the mind as almost impossible to be executed, would do nothing but evil, when by chance it should happen to be executed. This may be made clearer by an example : — Should I find a diamond m the ground, my first idea would be to regard it as my own ; and an expectation of keeping it would be formed at the same instant, not only through the bent of desire, but also by analogy witb habitual ideas of property. 1st. I have the physical possession of it, and this possession alone is a title where there is no opposing title. 2nd. There is something of mine in. the disco- very ; it is I who have drawn this diamond from the dirt, where, unknown to all the world, it had no value. 3rd. I may flatter myself with the idea of keeping it, without the aid of the law, and even in spite of the law ; since it will be enough to conceal it till I have a pretext for producing it xmder some other title. N'ow, should the law undertake to bestow the diamond upon some other person than me, it could not prevent this first movement of expectation, this hope of keeping it ; and in taking it away from me, it would make me experience that pain of disappointment commonly called injustice or tyranny. This reason would be sufScient for causing the thing to bS given to the finder, unleBS some stronger reason can be offered to the contrary. This rule may vary according to the natural chance of keeping the thing found without the aid of the law. A shipwrecked vessel which I may have been the first to see upon the coast ; a mine; an island which I may have discovered; are objects as to which an anterior law may prevent any idea of property, because it is impossible for me secretly to appropriate them to my own use. The law which refused them to me, being easily executed, would have its full and entire effect upon my mind ; to such a degree, that if the question turned on this principle alone, the legislator would be at liberty to give or refuse the thing to the PEDfCrPLES OP THE CIVII, COBE. 155 discoverer, as he saw fit. But there is a particular reason for showing some favour to the discoverer, which is, that a reward given to industry tends to augment the general wealth. "When aU the profit of discovery passes to the public treasury, that all is generally very little. 7th. The seventh and last condition necessary to produce a conformity between expectation and the laws, requires that the laws should he literally fallowed. This condition depends partly on the laws, and partly on the judges. If the laws do not har- monize with the ideas of the people, if the code pf a barbarous age still prevails in an era of civilization ; the tribunals, little by little, will drop old principles, and insensibly substitute new maxims. Thence wOl result a kind of contest between laws that are growing obsolete, and usage that is taking their place ; and a feebleness in the effect of the laws upon expectation, wiU be a consequence of this imcertainty. The word interpretation has a very different meaning in the mouth of a lawyer, from what it has when employed by other people. To interpret a passage in an author, is to bring out of it the sense which the writer had in his mind ; to interpret a law, in the sense at least of the Roman lawyers, is often to get rid of the intention clearly and plainly expressed, and to substitute some other for it, in the presumption that this new sense was the actual intention of the legislator ! With such a method of proceeding, there is no security. Where the law is fixed, though it be difficult, obscure, inco- herent, — ^the citizen always has a chance to know it. It gives a confused intimation, less efS.cacious than it might be, yet always useftil ; we see at least the limits of the evil it can do. But let a judge dare to arrogate to himself the power of raterpreting the laws, that is to say, of substituting his wUl for that of the legis- lator, and everything becomes arbitrary ; no one can foresee the course which caprice wiU take. The question is no longer of the actual evil ; however great that maybe, it is small in comparison with the magnitude of possible consequences. The serpent, it is said, can pass his whole body wherever he can introduce his 156 PEINCIPLES OP THE CIVIL CODE. head. As respects legal tyranny, it is this subtle head of which we must take care, lest presently we see it followed hy all the tortuous folds of ahuse. It is not the evil only which we ought to distrust, — it is the good even which springs from such means. Every usurpation of a power above the law, though useful in its immediate effects, as regards the future ought to be an object of terror. There are bounds, and even narrow bounds, to the good which can result from such arbitrary proceedings ; there are no bounds to the possible evil ; there are no bounds to the akrm. Aji indistinct danger hovers over every head. Without speaking of ignorance and caprice, how many facih- ties does this arbitrary system afford to partiality ! The judge, now conforming to the law, and now explaining it away, can always decide a case to suit his own designs. He is always sure of saving himself, either by the literal sense or the interpretation. He is a charlatan who astonishes the spectators by making sweet and bitter run from the same cup. One of the most eminent characteristics of the English tribunal is their scrupulous fidelity in following the declared will of the legislator ; and in directing themselves as much as possible, by former judgments, in that imperfect part of English legislation which depends upon custom. This rigid observation of the laws may have considerable inconveniences in an incomplete system, but it is the true spirit of liberty which inspires the English with so much horror for what they call ex post facto laws. All the conditions which constitute the goodness of the laws have so intimate a connection that the fulfilment of one supposes the fulfilment of the others. Intrinsic utility ; apparent utility; consistency ; simplicity ; facility of being known ; probability of execution ; all these qualities may be reciprocally considered as the cause or the effect of each other. If that obscure system called custom were no longer permitted, and everything were reduced to written law ; if the laws which concern every member of the community were arranged in one volume, and those which concern particiilar classes in little sepa- rate collections ; if the general code were universally dissemi- PTUNCrPLES OF THE CIVIL CODE. 157 nated ; tad it become, as among the Hebrews, a part of worship and a manual of education ; if a knowledge of it were required as preUmiiiary to the enjoyment of political rights; — the law would then be truly known ; every deviation from it would be manifest ; every citizen would become its guardian ; its violation would not be a mystery, its explanation would not be a mono- poly ; and fraud and chicane would no longer be able to elude it. It is further necessary that the style of the laws should be as simple as their provisions ; that it should make use of common language ; that its forms should have no artificial complexity. If the style of the code differed from that of other books, it should be by a greater clearness, by a greater precision, by a greater familiarity; because it is designed for aU. understandings, and particularly for the least enlightened class. After having imagined such a system of laws, if we proceed to compare it with what actually exists, the sentiment that results is far from favourable to our institutions. But however bad existing laws may be, let us distrust the declamations of chagrin and the exaggerations of complaint. He who is so limited in his views, or so passionate in his ideas of reform as to desire a revolt, or to bring the established system into general contempt, is unworthy to be heard at the tribunal of an enlightened public. "Who can enumerate the benefits of law, I do not say under the hest government, but under the worst ? Are we not indebted to it for aU we have of security, property, industry, and abun- dance ? Are we not indebted to it for peace between citizens, for the sanctity of marriage, and the sweet perpetuity of families ? The good which the law produces is universal; it is enjoyed every day and every moment. Its evUs are transient accidents. But the good is not perceived ; we enjoy it without referring it to its true cause, as if it appertained to the ordinary course of nature; while evUs are vividly felt, and, in the description of them, the suffering which is spread over a great space and a long series of years, is accumulated by the imagination upon a single moment. How many reasons we have to love the laws in spite of their imperfections ! 158 PART SECOND. DISTRIBUTION OF PROPERTY. CHAPTEE I. Titles which constitute Property. "We have already shown the reasons which induce the legislator to sanction property. But hitherto we have viewed wealth only iu the mass ; it is now necessary to descend to details, to take the individual objects which compose it, and to seek the prin- ciples which ought to govern the distribution of property, at the time when it presents itself to the law, to be appropriated to such or such individuals. These principles are the same which we have abeadylaid down, viz.. Subsistence, Ahundcmce, EqmUtyy Becwrity. Where they agree, the decision is easy ; when they differ, we must learn to distinguish where the preference should be given. I. AcTUAi Possession. — ^Actual possession is a title to pro- perty which precedes all others, and may hold the place of them. It will always be good against every man who has no other to oppose to it. Arbitrarily to take away from him who has, for the sake of giving to him who has not, is to create a loss on one side and a gain on the other. But, jBrst, the value of the result- ing pleasure wiU not be equal to the amount of the resulting pain ; second, such an act of violence, by its attack upon security, will spread alarm among all proprietors. It appears, then, that actual possession is a title founded upon good of the first order, and good of the second order. PKINCIPLES OP THE CI7IL COBB. 159 Wiat is called the right of the first occwpani, or of original discovery, amounts to the same thing. "Wlien the right of pro- perty is awarded to the first occupant, — 1st. He is spared the pain of disappointment, the pain he would have felt at seeing himself deprived of a thing of which he had heen the first to take possession. 2nd. The contests are prevented which might take place between the first occupant and a succession of competitors for the possession. 3rd. Certain enjoyments are produced, which otherwise would have had no existence ; for the first occupant, if he had no right of possession, dreading to lose what he had found, would not dare to enjoy it openly, for fear of betraying himseK ; and whatever he could not instantly consume would be valueless to him. 4th. The enjoyment thus bestowed upon a discoverer is a spur to the industry of others, who will be en- oouraged to seek like enjoyments for themselves ; and these individual acquisitions will result in general wealth. 5th. If imappropriated things did not belong to the first occupant, they would always be the prey of the strongest, and the weak would be for ever oppressed. All these reasons do not present themselves distinctly to men's minds ; but they are perceived in a confused manner, as it were instinctively. Such, they say, is the decree of reason, equity, and justice. These words, which everybody repeats and nobody explains, express nothing but a sentiment of approbation ; but this approbation, founded upon solid reasons, acquires a new force when distinctly supported upon the principle of utUity. The titie of original occupation formed the primitive foundation of property. It will still serve as regards islands newly risen from the waters, or lands newly discovered, saving the right of government, which is a peculiar incident of sovereignty. II, Ancient Possession in Good Faith. — Possession, after a certain period fixed by the law, ought to prevail over all other titles. If you have suffered that period to elapse without putting in a claim, it is a proof, either that you were ignorant of the existence of your right, or that you had no intention to avail yourself of it. In these two cases there is no expectation on 160 PEINCIPIES OP THE Cim CODE. your part, no desire to gain poBsession ; and on my part is an expectation and a desire to preserve it. To leave the possession with me will not be contrary to security-; but it will be an attact upon security to transfer the possession to you, for it will give inquietude to all possessors who are obHged to rely for their title upon ancient possession in good faith. But what length of time is necessary to produce this displace- ment of expectation ? or, in other words, what period is necessary to legitimate property in the hands of a possessor, and to extin- guish every opposite title ? To this inquiry, no exact answer can be given. It is necessary to draw at hazard the line of demarcation, accordiug to the kind and value of the property in question. If this line does not always prevent the pain of dis- appointment among those actually interested, it will at least prevent all evil of the second order. The law informs me that if during one year, ten years, or twenty years, I neglect to claim my right, the loss of that right will be the result of my negligence. This threat, the effects of which I can prevent, is not calculated to disturb my security. I suppose that the possession is in good faith, that is, that the possessor believes himseK to have a title. If not so, to confirm it would not be to favour security, but to reward crime. The age of Nestor ought not to be sufficient to insure to the fraudulent usurper the wages and the pay of his iniquity. "Why should there be a time when the malefactor can become tranquil ? "Why should he enjoy the fruits of his offence under the protection of the laws he has violated ? "With respect to heirs, a distinction must be taken. Are they possessors in good faith, believing themselves to have a title ? The same reasons can then be alleged in their behalf as in behalf of the former proprietor, and they have the possession beside, which incUnes the balance in their favour. Are they posseSBOis in bad faith, as their ancestor was ? Then they are his accom- plices, and impunity ought never to become the privilege of fraud. This second title is what is commonly called Prescrvptm. PEIlrCIPLES 01' THE CITTL CODE. 161 The reasons on wHch it is founded are the preventiqp. of dis- appointment and the general security of proprietors. III. Possession oe the Contents and Pbodttce of Land. — The property of a field includes everything which the field contains, and everything -which it produces. "We understand hy contents everything beneath the surface, such as mines and quarries ; by produce, everything that belongs to the vegetable kingdom. AH possible reasons, — security, subsistence, the aug- mentation of general wealth, the good of peace, — combine to give this extent to the right of property in land. IV. Possession op what Land stippokts, and of what it RECEIVES. — If my land has supported animals, it is to me that they owe their sustenance. Their existence would be a loss to me if the possession of the animals themselves did not secure me an indemnity. If the law gave them to another it would be a pure loss on my part and a pure gain on his — an arrangement as contrary to equality as to security. It would then become my interest to diminish their number and to prevent their multi- plication, which would be manifestly to the detriment of the general wealth. If chance has thrown upon land things which have not yet received the stamp of property, or which have lost the impress of it, as a whale driven on shore by a storm, the scattered frag- ments of a vireck, or trees torn up by the roots, such things ought to belong to the owner of the land. The reason of this prefer- ence is, that he is so situated as to derive a profit from them without any individual being subjected to a loss ; they cannot he taken from him without occasioning a pain of disappointment, and finally, no other person can take them without occupying his land and trespassing upon his rights. He has all the reasons of a first occupant in his favour. V. Possession op adjacent Lands. — If water which has covered unappropriated land leaves it, to whom shall the new land belong ? There are many reasons for giving it to the pro- prietors of the adjacent lands. 1st. They only can occupy it without trespassing upon the property of others. 2nd. They 162 PEHfOIELES OF THE CIVIL- CODE. only have formed some expectation of possessing it, or can look upon themselves as having a claim to it. 3rd. The chance of gaining by the retreat of the waters is no more than an indemnity for the chance of losing by their invasion. 4th. Tie property in land gained from the water will operate as a rewaid calculated to stimulate the labour necessary to this kind of conquest* VI. Ameliorations op one's own Peopeett. — If I have applied my labour to one of those things which already belong to me, my title acquires a new force. I have sowed and gathered these vegetables, the produce of my land ; I have taken care of these animals, I have dug these roots, I have cut these trees and shaped them. If I should have suffered at seeing these things taken from me before I had bestowed any pains upon them, how much more shall I suffer after the efforts of my industry have given them a new value, and have fortified my attachment to them Vad my expectation of keeping them? This fund for fatare enjoyment, which labour constantly increases, could not exist without security. YII. Possession in good Paith with AMEiiOKATioif op anothee's Peopeety. — But, if I have applied my labour to a thing belonging to another, treating it as if it belonged to me, for example, if I have made cloth of your wool, to which of us shall the manufacture belong ? Before answering, it is necessaiy to ascertain the state of the facts. Is it in good faith or bad faith that I have treated the thing as my property ? If I have * Such is the theory. In practice, many details will be required, otherwise this concession will resemble that famous partition of the new world, which a pope made between the Spanish and Portuguese. Sup- pose the Water quits a bay, which has many proprietors on its ehorea ; shall the distribution be regulated according to the quantity of land which each possesses, or to the extent of his shore ? Lines of demarca- ' tion will be necessary ; but it will not answer to wait till the eveiit has arrived, and the value of the land is known, for then all will entertain hopes, which some only can realize. The event must be anticipated, and expectation not yet formed will then be docile in the hands of the legislator. PEHrCIPlES OF THE CIVIL CODE. 163 acted in bad faith., to give me the production would be to reward crime ; if I have acted in good faith, it remains to inquire which of the two values is the greater, the original value of the thing worked upon or the additional value of the labour bestowed upon it ? How long since the first owner lost it ? How long have I possessed it ? To whom belongs the place in which it is at the moment when it is reclaimed, — to me, to the former possessor, or to a stranger ? The principle of caprice, without regard to the comparative amount of pains and pleasures, gives everything to one of the parties without paying any attention to the other. The principle of utility anxious to reduce to the least term an inevitable incon- venience, weighs the two interests, sects the means of reconciling them, and directs indemnities. It grants the thing itself to that claimant who would suffer the greater loss if his demand were refused, upon the condition, however, of giving to the other a sufficient indemnification. It is according to these same principles that we must answer the same question in relation to things which become mixed and confounded, as metal of yours and mine which has run together in the melting-pot, or liquors of mine which have been poured into the same recipient with yours. There are great debates among the Homan jurists who shall have the whole ; the Sabinians wish to give the whole to me, the Proculeians wish to give the whole to you. "Which is right? Neither. Either decision would stiU leave one of the parties a sufferer. A single question might cut short all these debates — ^Which of the two, in losing what belonged to him, would lose the most ? Let him have the possession, and let the other have an indemnity. The English lawyers have cut this Gordian knot. They have not troubled themselves to examine on which side would be the greater injury, they make no account of good faith or of bad faith, they make no inquiry as to the greater value or the stronger expectation. They decide that the property of movable effects shall always be given to the actual possessor, on condition, however, of indemnifying the other claimant. 164 PEINCIPIES OP THE CIVIL CODE. VIII. EXPLOEATION OF MlNES IS THE LaND OF AnOTHEE.— Tour land lias hidden treasures in its bosom ; but, because yon lack tbe knowledge or the means, or have little confidence of success, you do not dare to undertake the enterprise of mining, and the treasures remain buried. If I, a stranger to your land, have all the means of exploration which you want, and I wish to undertake it, ought the right to be granted to me without your consent ? "Why not ? Under your hands these buried riches are of no use to anybody ; in mine they wiU acquire a great ■value — thrown into circulation they will animate industry. "What wrong is done to you ? Tou lose nothing. The surface, the only thing which you put to any use, may still remain in the same condition. But the law, attentive to the interests of aD, ought to secure you a share, greater or less, of the produce ; for, though this treasure might be of no actual value iu your hands, stUl you would have an expectation of sometime profiting by it, and you ought not to be deprived of that chance without indemnity. Such is the English law. Under certain conditions, it aUows a vein, discovered in one field, to be followed into another by any one who is willing to undertake the enterprise. IX. LiBEETT OF EisHurG Ts Geeat "Waters. — GrTeat lakes, great rivers, great bays, and especially the ocean, are not occupied by exclusive proprietors. They are considered as belonging to nobody, or rather as belonging to all. There are no reasons for limiting the ocean fisheries, multiplication of most kinds of fish appears to be inexhaus In this matter the prodigality, the magnificence of nature a surpasses conception. The indefatigable Leuwenhoek has mated that the spawn of a single cod is capable of produci: millions of codlings. What we can take or consume out o: immense magazine of food is absolutely nothing when com with the destruction produced by physical causes, which w neither lessen nor prevent. Man on the ocean, with his w and his nets, is but a feeble rival of the great rulers of th Sharks cause more ravages among the smaU fish than he PKnsrcJiPXBs of the civil code. 165 As to the fish of rivers, lakes, and small bays, the laws tate precautions for their preservation, at once necessary and efS.oacious. Where there is no occasion for jealousy, and no fear that the number of competitors will diminish the fund of wealth, it is better to leave to every one the right of first occupancy, and to encourage every kiud of labour that tends to augment the general abundance. X. LiBEETT OP Hunting tjpon Unappropmated GEOirarDS. — It is the same with unappropriated lands, uncultivated wastes and savage forests. In those vast countries which are not peopled in proportion to their extent, these unappropriated tracts are often of great size, and the right of hunting may be exercised without limit. Man there is only a rival of the beasts of prey, and the chase enlarges the fund of subsistence without injuring anybody. But in civilized societies, where agriculture has made great progress, and where unappropriated lands bear only a small pro- portion to those which have received the impress of possession, there are many reasons against allowing this right of chase. First inconvenience. — In those countries where the population is numerous, the destruction of wild animals may go on faster than their reproduction. Eender the chase free, and the animals which are the object of it would sensibly diminish, and even be annihilated. The sportsman would presently have as much trouble to obtain a single partridge as he now has to get a hun- dred, and the price would be enhanced a hundred-fold. He would suffer no loss himself, but he would furnish to society only a hundredth part the value which he now furnishes. In simpler terms, the pleasure of eating partridges would be reduced a hundred-fold. Second inconvenience. — The chase, without being more produc- tive than other labours, has unhappily more attractions. Sport is combined with labour, idleness with exercise, and glory with danger. The charm of a profession so well adapted to all the natural tastes of man will draw into this pursuit a great number of competitors ; by their competition they will reduce the profits 166 PEINCIPIES OF IHE CIVIL COBE. of this employment to a mere subsistence ; and in general this class of adventurers wiU be poor. Third inconvenience. — Tte chase having particular seasons, there vriU be intervals during -which the huntsman will be unemployed. He will not easily return from a wandering to a sedentary life, from independence to subjection, and from a, habit of idleness to a habit of labour. Accustomed, like the gambler, to live upon chances and hope, a small fixed income has few attractions for him. The want and idleness of such a condition naturally lead to crime. Fourth incowoenience. — The very exercise of this profession is naturally fertile in offences. The quarrels, the lawsuits, the prosecutions, the convictions, the imprisonments and other punish- ments which it causes, are more than sufficient to counterbalaQce its pleasures. The hunter, tired with vainly waiting for his prey on the highways, secretly spies out the game in the neighbouring enclosures. Does he think himself observed ? He turns aside and waits, for he is an adept in patience and stratagem. Does he see no witnesses ? He respects boundaries no longer ; he jumps the ditches, he leaps the hedges, he devastates enclosures ; and, his cupidity betraying him into imprudences, he gets himself into perilous positions, whence he cannot escape without disaster or crime. If hunting were permitted on the high roads, there would be needed an army of guards to restrain the wanderings of the hunters. Fifth inconvenience.— If this right of chase, so little advan- tageous when confined within such narrow limits, is still suffered to exist, the civil and penal code will need an assortment of laws to limit its exercise and to punish its excesses. This multipK-. cation of laws is always an evil, because laws cannot be multiplied without being weakened. Besides, the severity necessary to pre- vent offences so easy and so attractive gives an odious character to property, and places the opulent in a state of war with their poor neighbours. The way to cut this matter short is not to regulate the right, but to suppress it. The prohibitive law being once known, no expectations will ho PEINCIPLES OF THE CrVTL CODE. 167 formed of enjoying this privilege. Partridges mil no more be coveted than pullets, and even in the minds of the multitude poaching will not be distinguished from theft. It is true that at the present day popular ideas are in favour of this right of hunting ; but if a condescension is due to popular ideas, it is only upon occasions when they have a great power, and when there is little hope of changing them. Let pains be taken to enlighten the people, to make the motives of the law evident, to exhibit it as a means of peace and security, to show that the exercise of this right reduces itself almost to nothing, that the life of a hunter is miserable, that this ungrateful pro- fession constantly exposes him who follows it to the commission of offences and his family to poverty and shame ; and I dare to affirm that popular ideas, pressed by the continuous and mild force of reason, would presently assume a new direction.* There are animals whose value does not compensate the damage they do ; such as foxes, wolves, bears, and all beasts of prey, the enemies of the animals subject to man. So far from preserving, it is an object to destroy them. One means for this end is, to give all a right to destroy them, and a property in the beast when slain, without regard to the ownership of the land. Every hunter who attacks these hurtful animals ought to be considered as employed by the police. But this exception ought to be ad- mitted only in case of animals capable of much mischief. * We may observe, that of the five inoonvenienoes above emunerated with which the right of free hunting is said to be attended, the second, third,, and fourth resolve themselves into this, viz., that in a civilized commnnity, the business of hunting is a private loss and a public incon- venience. This being granted — and the fact is doubtless so— if by per- mitting free hunting, that annihilation of wild game, which is described as the first inconvenience, can be brought about, it will be a decided benefit ; and when hunting ceases for want of game, of course all the evils which go to make up the inconveniences of its existence will dis- appear with it. This is a view of the case which the author seems not to have taken. That a right of free hunting would operate in this way, the example of Massachusetts clearly proves, a state in which game and eportsmen are equally rare, and game laws are unknown. — Trtmalator, 168 PBINCIPLES 01' THE CIVIL CODE. CHAPTEE II. Title ly Consent. It may happen that possessing a thing by a lawflil title, we wish to dispossess ourselves of it, and to abandon its enjoyment to another. Shall such an arrangement be confirmed by the law ? Doubtless it shall be. AH the reasons which plead in favour of the old proprietor change sides with the transfer, and then plead in favour of the new one. Besides, the former proprietor must have had some motive for abandoning his property. Motm is pleasure, or equivalent ; pleasure of friendship or of benevo- lence, if the thing was given for nothing ; pleasure of acquisition, if it "was a means of exchange ; plea,sure of seowrity, if it was given to ward off some evU ; pleasure of reputation, if the object was to acquire the esteem of others. It seems, then, that the transfer must increase the enjoyment of the parties interested in it. The acquirer stands in the place of the conferrer as to the old advantages, and the conferrer acquires a new advantage. We may then lay it down as a general maxim, that every alienation imports ad/vantage. A good of some sort is always the result of it. "When the question is of an exchange, there are then two alienations, of which each has its separate advantages. The advantage for each of the contracting parties is, the difference to him between the value of the thiag he gives, and that of the thing he acquires. In every transaction of this sort there are two new masses of enjoyment. In this the good of commerce consists. In all the arts, there are many things which cannot be pro- duced except by the concourse of a great number of workmen, In all these cases the labour of an individual would have no value, either for himself or for others, if it could not be exchanged. II. Cases ts which Exchanges shottld be Invalid. — But there are cases in which the law ought not to sanction exchanges, PEINCIPIES OP THE CIYIL CODE. 169 and in -wliicli tie interests of the parties ouglit to be regulated, as if the bargain had not taken place ; because, instead of being advantageous, the exchange would be injurious to one of the parties, or to the public. "We may arrange aU the causes which invalidate exchanges under the nine following heads : — 1st. Concealment. 2nd. Fraud. 3rd. Coercion. 4th. Subornation. 5th. Erroneous idea of legal obligation. 6th. Erroneous idea of value. 7th. Incapacity. 8th. Probable inconvenience to the public. 9th. "Want of right on the part of the conferrer. 1st. Concealment. — If the thing acquired proves of less value than the acquirer had expected, he experiences regret, and feels a pain of disappointment. If the value is not equal to what he gave in exchange, instead of gaining, he has lost. It is true that the other party has gained ; but the good of gain is not equivalent to the evil of loss. I have paid ten guineas for a horse, which would be worth that sum if he were sound ; but, as his wind is broken, he is worth but two guineas. The seller has gained eight guineas, which I have lost ; but, if the interests of the two parties be weighed together, the trade, on the whole, is not productive of pleasure, but the contrary. But if at the time of the sale this inferiority of value was unknown to the former proprietor, why should the exchange be void ? "Why oblige him to make a disadvantageous re-exchange ? The loss must fall on somebody, and why on him more than another? And even suppose that he knew the circumstance which lessened the value of the thing, was he obliged to com- municate it without being asked ? The two following questions arise in every case of invalidity resulting from concealment : — Did the seller know of the exist- ence of the fault ? "Was it a case in which he ought to have told of it ? The solution of these questions demands too many 170 PEINCrPlES OF THE CIVII. COBE. details and researches to find a place here, especially as an answer cannot be given which embraces every case, but divers modifica- tions are necessary, according to the different kinds of things. 2nd. M-aud.— This case is simpler than the preceding. A fraudulent acquisition ought never to be permitted when it can be hindered. Fraud is an offence which borders upon theft. Ton asked the seller if the horse was broken -winded; he replied in the negative, knowing the contrary. To sanction such a trade would be to reward crime. Add the reason in the preoedtng case, namely, an evil to the purchaser greater than the good to the seUer, and it will then appear that this cause of invalidity is well founded. 3rd. It is the same with coercion. A seller whose horse is worth but two guineas has constrained you, by violence and threats, to give ten guineas. Suppose you would have been willing to pay two guineas, the surplus is so much gained by an offence. It ifi true that this loss was an advantage to you in comparison with the evU you were threatened with in ease of refusal ; but neither this comparative advantage, nor the gain of the delinquent, can counterbalance the evil of the offence. 4th. It is the same with subornation ; by which I understand the price of a service, which consists in committing an offence, as money promised to a man to engage him to give a false deposi- tion. There are two advantages in such a bargain, that of the suborned and that of the suborner; but these two advantages are not at all equal to the evil of the offence. It may be observed in passing, that in the case of fraud, of undue coercion, and of subornation, the law, not content with annulling the act, opposes to it a stronger counter-weight of punishment. 5th. Erroneous Idea of Legal Obligation. — You have delivered your horse to a man, imder an erroneous idea that your manager had sold him. Or you have delivered your horse to a man under the impression that he was authorized by the government to take him for the use of the state ; in one word, you imagine yourself obliged to sell, when no such obligation exists. If after the discovery of the mistake the alienation should be confirmed, the HUNCIPLES OF THE CITll CODE. 171 buyer would make an unexpected gain, vrhUe the seller would experience an unexpected loss. But we have seen that the good of gain is not equivalent to the evil of loss. Besides, this case may he classed with that of coercion. 6th. M-roneous Idea of Value. — If, in alienating a thing, I was ignorant of a circumstance which tended to augment its value, upon discovering my error, T shaU. experience the regret of loss. But is that a reason for invalidating the contract ? On the one side, if such causes of nullity are admitted without restriction, there is the risk of a great discouragement to exchanges ; for what security of acquisition do I have, if the seller can break the trade, imder the pretence of not knowing what he was about ? On the other side, there would be the pain of a very lively regret, if after having sold a diamond as a morsel of crystal, there were no means of recovering it. To hold an equal balance between the parties, we must conform to the diversity of circum- stances and of things. "We must always examine if the igno- rance of the seller were not the result of negligence ; and even should the case require the avoidance of the sale, it will always be necessary to provide for the security of the person whose interest it would be to have the bargain confirmed. But it may be that a trade exempt from aU these faults turns out to be disadvantageous. You bought a horse for the sake of a journey which you do not make. When you are ready to set out, the horse falls sick and dies. Tou set out, and the horse throws you and breaks your leg. Tou mount the horse, but only to go on the highway to rob. The fancy which made you buy Viim was transitory, and, being past, leaves you a loser. These eventual cases may be multiplied indefinitely, — cases in which a thing acquired on account of its value becomes useless, or onerous, or fatal to the acquirer, or to another. Are not these exceptions to the axiom that every exchange imports an advantage ? Are not these reasonable grounds for invalidating the contract ? No. AU these unfavourable events are only matters of acci- dent, posterior to the sale. The common case is, that the thing is worth what it costs. The total advantage of useful exchanges 172 PEUfCIPLES OP THE CIVIL CODE. is far more tlian equivalent to tlie total disadvantage of such as ate unfavourable. The gains of commere are greater than the losses, since the world is now richer than in the savage state. Alienations in general ought, then, to be maintained. But to annul alienations, on account of accidental losses, would be to interdict alienations in general ; for nobody would wish to sell, nobody would wish to buy, if the transaction could be annulled at any moment, on account of some subsequent event impoBsible to be foreseen or prevented. 7th. There are cases in which the legislator foresees the evil of conventions, and prohibits them beforehand. It is thus that in many countries prodigals are incapacitated to contract, that is, all contracts with them are declared void. But the danger of such contracts, that is, the disposition which renders the prodigal unfit to manage his own affairs, is always previously made known. Every one has notice, or at least might have, of the incapacity which the guardian hand of justice has imposed. In all countries there has been established an incapacity to con- tract in the two analogous cases of infancy and madness ; I say analogous, for what a child is, for a period which may be suffi- ciently well determined, though always by a demarcation more or less arbitrary, the madman is, for a time indeterminate, or per- petual. The reasons are the same as in the preceding case. Minors and persons of unsound understanding are, by their con- dition, either ignorant, rash, or prodigal. This is presumed by a general induction, which does not need to be sustained by par- ticular proofs. It is plain that in these three cases the incapacity ought to ex- tend only to things of a certain importance. To apply them to little objects of daily consumption would be condemning these three classes to die of famine. 8th. The law sometimes invalidates contracts in consideration of some public inoonvenience likely to result from them. I have a landed property situated on the boundary of the state. If acquired by the neighbouring power it might become the seat of hostile intrigues, or might favour preparations dangerous to my PEINCrPLES OP THE CITIL CODE. 173 countey. Whetlier I have or have not such an intent, the law ought to provide for the public interest. It ought to prevent the evil by refusing beforehand to give a sanction to such sales.* The restraints which it has been thought fit to put upon the sale of drugs which operate as poisons may be referred to this head. It would be the same of a prohibition to seU. murderous arms, such as stilettoes, so freijuently used in Italy in the most common quarrels. It is to this same motive, well or iU founded, that we ought to refer all prohibitions relative to the introduction or sale of certain species of merchandise-! In most of these cases the custom is to say, that the contract is void in itself. "We need but open the law books to see what nonsense has been gravely uttered upon this subject, and to dis- cover into what absurdities the lawyers have fallen, from not having seized upon the sole cause of the invalidity of contracts made under these circumstances, to wit, that they are attended by more evil than good. Having said that these contracts are void in themselves to be consistent, it seems to foUow that they ought not to have any effect; that they ought to be annihilated; and that no trace of them should be left. However, there are abundance of cases ia which it will be sufficient to modify them, and to correct their inequality by compensations without altering the substance of the original contract. No contract is void in itself; none is valid in itself. It is the law which, in either case, grants or refuses validity. But for * Most nations, perhaps without thinking of it, have obviated this danger by a general law, which forbids strangers to acquire lauds. But that is going too far. The reason of the prohibition does not extend beyond the particular case above mentioned. The stranger who wishes to buy immoveable property, gives the country of his choice the most unequivocal proof of his affection, and the surest pledge of good conduct. Even if we look no further than to finance, the state cannot but gain by such purchases. t Under this head fall the laws prohibiting the traffic in ardent spirits. — Tramslator, 174 PBOTCIPLES OP THE CmL CODE. grauting or refusing it, reasons are necessary. Equivocal gene- ration is banished from sound physiology ; perhaps some day it ■will be banished from jurisprudence. This void in itself is pre- cisely an ecLuivocal generation. III. Obstacles to the AiiENAiioif oe Land. — To say thit the power of alienation is useful, is also to say that all arrange- ments which tend to prevent it are generally pernicious. It is with respect to immoveables that this inconsistency has chiefly been displayed, whether by entails or by inalienable foun- dations, described by English lawyers as grants in mortmain; yet, besides the general reasons already given, there are some particular ones in favour of the free alienation of land. 1st. He who seeks to get rid of a landed estate shows suffi- ciently that it is not for his advantage to keep it. He either cannot or will not spend anything for its improvement ; indeed, it often happens that he cannot help sacrificing its future Talne to satisfy a present want. On the contrary, he who seeks to acquire an estate certainly has no intention of diminishing its ' value, and he probably means to increase it. It is true that the same capital which would be employed, in the improvement of a landed estate might otherwise be employed in commerce ; but, although the advantage of these two employ- ments might be the same to an individual, they would not be the same to the state. That portion of wealth which is applied to agriculture is more fixed ; that which is applied to commerce is more fugitive. The first is immoveable ; the second can be trans- ported at the pleasure of the proprietor. 2nd. By mortgaging an immoveable estate a productive capital may be raised. Thus one portion of the value of a landed estate may be employed in the improvement of the other portion of it; an enterprise which, perhaps, without that resource, could not te undertaken. To prevent the free alienation of lands is to diniinis| the productive capital which might be employed in their improTe- ment nearly to the amount of their saleable value ; for a thing cannot be mortgaged unless it can be alienated. It is true that we speak here only of loans ; and there is no PEINCIPIES 01' THE dVlL CODE. 175 new capital created by a loan. This same capital, in other hands, might receive a destination not less useful ; but it is to be observed that the more means there are for employing capital the greater amount of it will come into a country. That which comes flrom abroad forms a net addition to the domestic supply. These restrainsts upon alienation, though condemned by the soundest notions of political economy, are to be found almost everywhere. It is true that they have gradually diminished in proportion as governments have better understood the interests of agriculture and commerce ; but there are stiU three causes which operate to maintain them. The first is, the desire of preventing prodigality. But to ob- viate this evil, it is not necessary to prevent the sale of lands ; it will be sufficient to protect their value by not leaving it at the disposal of the prodigal. The second is, family pride, joined to that agreeable illusion, which paints the successive existence of our descendants as the prolongation of our own. The imagination is not satisfied with the idea of leaving our children the same value; they must possess the same lands, the same houses, the same natural objects. This continuity of possession appears a continuity of enjoyment, and gives support to a feeling chimerical and absurd. The third cause is, the love of power, the desire of ruling after death. The preceding motive supposes a posterity, this does not. It is to this cause that we must refer all foimdations, both those which have an object of utUity, well or iU understood, and those of pure fancy. If a foundation consists merely in the distribution of benefits without imposing any conditions, and without exacting any service, it appears sufficiently innocent, and its continuation is not an evil. We must except foundations for distributing alms without dis- tinction and discernment, which serve merely to promote men- dicity and idleness. The best of these establishments are those in favour of such poor as were once of a better condition. They are a means of providing for such unfortunates a more liberal support than public charity would allow. 176 PEISCIPLES OF THE CrVTL CODE. As to foundations, the benefits of wHch. are not granted except on the fulfilment of certain duties, such as convents, colleges, and churches, their tendency is useful, indifferent, or injurious, according to the nature of the services exacted. It is a singularity which merits observation, that in general, these foundations, these particular laws, which the individual establishes by the indulgence of the sovereign, have been treated with more respect than the public laws, which are immediately derived from the sovereign himself. When a legislator has wished to tie up the hands of posterity, such a proceeding has appeared absurd or fatUe. The obscurest individuals have arro- gated that privilege, and no one has dared to attack it ! It would seem that lands left to corporations, convents, and churches, must Necessarily decline in. value. Indifferent towardfl successors, who are not allied to him by blood, each transient proprietor will be apt to exhaust as much as he can a possesBion which he enjoys only for Hfe; and, in old age especially, to neglect the necessary repairs. This sometimes happens, "ffe must he just, however, to religious communities. They are offcener distinguished for good than for bad economy. If their situation inflames cupidity and avarice, it represses pride and prodigality. If there are causes which nourish among them a spirit of selfish- ness, there are others which combat that sentiment by creating an esprit de corps, a warm attachment to the profession to which they belong. It is scarcely necessary to mention public property, — that is, those things the use of which is public, such as roads, churches, markets. To fulfil their end, it is necessary that their duration should be indefinite, with provision, however, for permitting those successive changes which circumstances may req[uire. PEINCIPLES OF THE dTII CODE. Z77 CHAPTEE III. Title hy Succession. Apiee tte decease of an individual, how ought his goods to be disposed of ? In framing a law of succession, the legislator ought to have three ohjeots in view : — 1st, Provision for the subsistence of the rising generation ; 2nd, Prevention of disappointment ; 3rd, The equalization of fortunes. Man is not a solitary being. "With a very small number of exceptions, every man has about him a circle of companions, more or less extensive, who are united to him by the ties of kindred or of marriage, by friendship or by services, and who share with him, in fact, the enjoyment of those goods which in law belong to him exclusively. His fortune is commonly the sole fund of subsistence on which many others depend. To prevent the calamities of which they would be the victims, if death in taking away their friend took from them at the same time the supplies which they draw from his fortune, it is necessary to know who habitually enjoy these supplies, and in what proportions. Ifow, since these are facts which it would be impossible to establish by direct proofs, without becoming involved in embarrassing procedures and infinite contests, it is necessary to resort to general presumptions, as the only basis upon which a decision can be established. The share which each survivor was accustomed to enjoy in the property of the deceased may be presumed from the degree of affection which ought to have subsisted between them ; and this degree of affection may be presumed from nearness of relationship. If relationship were the only consideration, the law of succession would be very simple. In the^s^ degree of relationship are all those who are connected with you without any other person intervening : your wife, or husband, your father, your mother, and your children. In the second degree are those whose con- nection with you demands the intervention of a single person, or the joint intervention of two persons : your grandfathers, your 178 PEINCIPLES OE IHB CIVIL CODE. grandmotiers, your brothers, your sisters, and your grandchildren. In the third degree are those whose. relationship supposes two intermediate generations : your great-grandfathers, your great- grandmothers, your great-grandchildren, your uncles and aunts, nephews and nieces. But this arrangement, though quite perfect as respects simpli- city and regularity, wiU not answer the poHtioal and moral ends to be aimed at by the legislator. It does not correspond to the degree of affection of which, if employed, it must be taien as a presumptive proof ; and it wUl not accomplish the principal object, which is to provide for the wants of the rising generation. Let us leave, then, this genealogical arrangement, and adopt one founded upon utUity. It consists in always giving to the descend- ing line, however long, a preference over the ascending and composite StiU, it must happen that the presumptions of affection or of want, which serve as a foundation to these rules, wiU often fail in practice ; and that, in consequence, the rules themselves will not accomplish their end. But the power of mating a will offers, as we shall see, an effiteacious remedy for the imperfections of the general law ; and that is the principal reason for sanctioning such a power. These are the general principles ; but how ought they to be appHed in detail, when it is necessary to decide between several claimants ? The model of a law wUl serve instead of a great number of discussions. Aeticlb I. JVo distinction between the sexes ; what is said of one extends to the other. The portion of the one shall he always equal to that of the other. Reason. — Good of equality. If there were any difference, it ought to be in favour of the feebler — in favour of women — who have more wants and fewer means of acquisition, or of employing profitably what they possess. But the stronger have had all the preferences. Why ? Because the stronger have made the laws. Article II. After the husland's death, the widow shall retain PEINCIPLES OF THE COTIL CODE. 179 half the common property ; unless some afferent arrangement was made hy the marriage contract. Aeticle III. The other half shall he distributed among the Reasons. — 1st. Equality of affection on the part of the father. 2nd. Equality of co-occupation on the part of the children. 3rd. Equality of wants. 4th. Equality of all imaginable reasons on one side- and the other. Differences of age, of temperament, of talent, and of strength, may produce some differences in point of ■wants ; but it is not possible for the law to appreciate them. The father must provide for them by the exercise of his right to make a mU. Aeticle IV. If a child dies before his father, learning children, his share shall he divided among his children in equal proportions ; and so of all descendants. This distribution by stocks is preferred to that by heads, for two reasons. 1st. To prevent disappointment. That the part of the eldest should be diminished by the birth of each younger child is a natural event, to which his expectation will conform itself. But in general, when one of the children begins to exer- cise his reproductive faculty, that of the father is almost at its end. At that time the children suppose themselves arrived at the point where the diminution of their respective portions ceases. But if each grandson and granddaughter were to produce the same diminution which each son and daughter had produced, the diminution would have no bounds. There would no longer be any certainty according to which they could arrange their plan of life. 2nd. The grandchildren have, as an immediate resource, the property of their deceased father. Their habit of co-occupation, detached from their grandfather, fnust have been exercised in preference, if not exclusively, upon the fund of their father's industry. Add to this, that they have in the property of their mother and her relations a resource, in which the other descend- ants of their grandfather have no share. Article V. If there are no descendoMs, the property shall go in common to the father and mother. N 2 180 PEINCIPMS OP THE CIVIL CODE. "WTiy to descendants before, all otters ? 1st. Superioritij of affection. ETcry other arrangement -would be contrary to the inclination of the father. We love those better who depend upon us than those upon vrhom we depend. It is sweeter to govern than to obey. 2nd. Steperiority of need. It is certain that our children cannot exist without us, or some one who fills pur place. It is probable that our parents may exist without us, as they did exist before us. "Why should the succession pass to the father and mother, rather than to the brothers and sisters ? 1st. The relationship being more immediate, is a presumption of superior affection. 2nd. It is a recompense for services rendered, or rather an indem- nity for the pains and expense of educating the child. The relationship between me and my brother consists in our common relationship to the same father and mother ; and the reason why he is more dear to me than another companion with whom I have passed an equal portion of my life is, his being dearer to those who have my first affections. It is not certain that I am indebted to him for anything, but it is certain that I am indebted to them for everything. Thus, whenever the stronger title of my own children does not intervene, I owe compensations to my parente, to which a brother can have no claim. Aeticie YI. If one of the parents is dead, the share of the deceased shall go to Ms or her descendants, in the same way as it would have gone, had there been any, to the descendants of th deceased child. , In poor families, whose only property is household furniture,^ it will be better that the whole should go to the individual sur- vivor, whether father or mother, with the condition of providing for the support of the children. The expense of the sale and the dispersion of the property would ruin the survivor, while the parts, too small to serve as capital, would soon be dissipated. AnTiciE VII. 'Failing such descendants, the whole property shU go to the surviving parent. AaiicLE VIII. If loth father and mother a/re dead, the pro- I as above among ■ PBINCrPIES OF THE CI7II CODB. 181 Aeticxe IX. But the part of the half-blood shall le only half as great as the part of the whole-hlood. Reason. — Superiority of affection. Two ties attach me to my brother, but only one to my balf-brotber. Abiiclb X. In defect of relations in these degrees, the property shall go into the pullie treasury, AsxiCLE XI. Under condition, however, of distributing the interest in the form of life annuities among all tlie relations in the ascending line in equal shares. The tenth and eleventh articles may be adopted or not, accord- ing to the condition of the public revenue ; but I cannot dis- cover any solid objection against this fiscal resource. It may be said that the collateral relations who wiU be excluded by this arrangement may be in want. But this is too casual an accident to found a general rule upon. They have, as a natural resource, the property of their respective parents, and they do not form their expectations or fix their plan of Kfe upon this basis. On the part even of an uncle, the expectation of inheriting from a nephew can be but feeble ; and a positive law will be enough to extinguish it without violence, or to prevent it being formed. The uncle has not the titles of the father and grandfather. It is true that, in case of their death, the uncle may have taken their place, and acted as a father to his nephew. This is a circumstance which merits the attention of the legislator. The power of making a will would be a remedy for cases of this sort ; but that means of obviating the inconveniences of the general law would be unavailing when the nephew died at an age too tender to allow the exercise of that power. If, then, it were determined to soften this fiscal regulation, the first exception should be iu favour of the uncle, whether as regards the prin- cipal, or only the interest of the property. Abticlb XII. To effect a division among the heirs, the property shall be sold at auction ; reserving to them the right of making such other arrangement as they may think proper. This is the only means of preventing a community of goods, an arrangement the pernicious consequences of which wiU pre- 182 PKTNCIPLES OF THE CITIt CODE. sently be pointed out. Sucli of the property as may have a value of affection, will find its true price from the competition of the heirs, and will turn to the common advantage, without producing those disputes which occasion durable animosities in families. AmioLE XIII. Until sale and division he made, the whole fro- perty shall he intrusted to the heeping of the oldest male heir of fall age; reserving to the ■cottrt to mahe other arrangements, through apprehension of had management, specified on the hearing of the case. Women in general are less fit for affairs of money and business than men. But an individual woman may have a superior apti- tude ; if pointed out by the general wish of the relations, she ought to have the preference. Aeticle Xiy . In defect of a male heir of full age, the property shall he intrusted to the guardian of the oldest male heir, reserving a discretionary power as in the preceding article. Aeiicle XV. The succession which falls to the treasury, for want of natv/ral heirs, shall also he sold at auction. The government is incapable of managing specific property to advantage. The administration of such property belonging to a government costs much, brings in little, and is certain to undergo a rapid deterioration. This is a truth which Adam Smith has demonstrated. This project of a law appears to be simple, precise, and easyto be comprehended ; it gives little room for fraud, chicanery, or diversity of interpretation ; and finally, it is analogous to the affections of the human heart, to those habitual inclinations which spring from the social relations ; and therefore it is likely to con- ciliate both the affections of those who judge by sentiment and the esteem of those who appreciate reasons. Those who accuse this plan of being too simple, and who deolaie that at this rate the law would no longer be a science, may find wherewith to be satisfied, astonished, and delighted, in the lahy- rinth of the English conomon law of successions. To give the reader an idea of the English common law on this subject, it would be necessary to begin with a dictionary of new PEINCIPLES OP THE CITIL CODE. 183 words ; aud presently, when they should discover the absurdities, the subtilties, the cruelties, the frauds, with which that system abounds, they would imagine that I had written a satire, and that I wished to insult a nation otherwise so justly renowned for its wisdom. It is to be observed, however, that the right of mating a will reduces this evU withia tolerably narrow limits. It is only the succession to the property of intestates which is obliged to pass through the crooked roads of the common law. "Wills in that country may be compared to arbitrary pardons, which correct the severity of penal laws. CHAPTER IV. Testaments. 1st. The law, not knowing individuals, cannot accommodate itself to the diversity of their wants. All that can be exacted from it is to offer the best possible chance of satisfying those wants. It is for each proprietor, who can and who ought to know the parti- cular circumstances in which those who depend upon him will be placed at his death, to correct the imperfections of the law in aU those cases which it cannot foresee. The power of making a will is an instrument intrusted to the hands of individuals, to prevent private calamities. 2nd. The same power may be considered as an instrument of authority, intrusted to individuals for the encouragement of virtue in their families and the repression of vice. It is true that this means maybe employed for the contrary purpose ; but, fortunately, such cases are an exception. The interest of each member of a family is, that the conduct of every other member should be con- formable to virtue, that is, to general utility. The passions may occasion accidental deviations ; but the law must be arranged in conformity to the ordinary course of things. Yirtue is the domi- nant regulator of society ; even vicious parents are as jealous as others of the honour and the reputation of their children. A man 184 PEINCIPLES OF THE CIVII, CODE. little scruptilous in his own conduct would be shocked to haTe his secret practices disclosed to his family ; at home he is still the apostle of probity ; he disregards it in his own behayiour, but he wishes it in those about him. In this poiat of view, every pro- prietor is entitled to the confidence of the law. Clothed with the power of making a wiU, which is a branch of penal and remu- nerative legislation, he maybe considered as a magistrate appointed to preserve good order iu that little state called a family. This magistrate may be guilty of partiality and injustice ; and as he is restrained in the exercise of his power neither by pubHoity nor by responsibility, he would seem to be very likely to abuse it. But that danger is more than counterbalanced by the ties of interest and afiection, which put his inclination in accord with his duty. His natural attachment to his children and his relatives is as secure a pledge for his good conduct as any that can be obtained for that of the political magistrate; to such a degree that, all things considered, the authority of this non-commissioned magistrate, besides being absolutely necessary to children of tender age, will oftener be found salutary than hurtful, even to adults. 3rd. The power of making a will is advantageous under another aspect, as a means of governing — ^not for the good of those who obey, as in the preceding article, but for the good of him who commands. In this way the power of the present generation is extended over a portion of the future, and to a certain extent the wealth of each proprietor is doubled. By means of an order not payable till after his death, he procures for himself an infinity of advantages beyond what his actual means would furnish. By continuing the submission of children beyond the term of minority, the indemnity for paternal cares is increased, and an additional assurance against ingratitude is secured to the father; and though it would be agreeable to think that such precautions are superfluous, yet when we recollect the infirmities of old age, we must be satisfied that it is necessary not to deprive it of this counterpoise of factitious attractions. In the rapid descent of life, every support on which man can PEIlfCrPLES OF THE CTVIL CODE. 185 lean should be left untouched, and it is well that interest serve as a monitor to duty. Ingratitude on the part of children and contempt for old age are not common vices in civilized society ; but we must recoUeot that everywhere, more or less, the power of making a will exists. Are these vices most frequent where this power is most limited ? "We might decide the question by observing what passes in poor families, where there is but little to give in legacies ; but even that method of judging would be deceptive, for the influence of this power, established in society by the laws, tends to form general manners, and general manners thus formed determine the sentiments of individuals. This power given to fathers renders the paternal authority more respectable, and those fathers whose indigence does not permit them to exercise it, unconsciously profit by the general habit of submission to which it has given rise. But in making the father a magistrate we must take care not to make him a tyrant. If children have their faults he may have his, and though we give him the power of correction, it does not follow that he should have the right to punish by starvation. The institution called in France a legitime, by which each child is protected against a total disinheritance, is a convenient medium between domestic anarchy and paternal tyranny. Even this pro- vision the father should have the power of taking away, for causes specified in the law and judicially proved. There is stiU another question. In default of natural heirs, shall the proprietor have the right of leaving his property to whomsoever he chooses, either to distant relations or to strangers ? In that case the fiscal resource spoken of in the preceding chapter wiU be greatly diminished, it will apply only to the case of intestates. Here the reasons of utility divide. "We must endeavour to find some middle course. It may be said that, in default of kin, the services of strangers are necessary to a man, and his attachment to them almost the same as to relations. He should have the means of cultivating the hopes and rewarding the care of a faithful servant, and of 186 PEIKCIPLES OP THE CIVIL CODE. softening the regrets of a Mend who has -watched at his side, not to speak of the woman who, but for the omission of a ceremony, would be called his widow, and the orphans whom all the world but the legislator regard as his children. Again, if to enrich the public treasury you deprive a man of the power of leaving his property to his friends, do you not force him to spend it all upon himself? If he has no control over his capital from the moment of his death, he will be tempted to con- vert his property into a life annuity. It is to encourage him to be a spendthrift, and almost to make a law against economy. The^e reasons are, doubtless, more weighty than any consi- deration of gain to the public treasury. We ought to leave the proprietor who has no near relations the right of disposing of at least half his property by will, while the other half is reserved for the public ; and to be contented with less would, perhaps, in this case, be a means of getting more. Besides, it is a matter of very great importance not to attack the principle which allows every one to dispose of his property after death ; and not to create a class of proprietors who wiU regard themselves as inferior to others, on account of the legal incapacity attached to one-half of their fortune. All that has been said of alienations between the living, apphes also to testaments. On most of those points we shall be instructed by the conformity between contracts and testaments, and some- times by contrast. The same causes of nullity which apply to alienations between the living apply to testaments, except that in the place of con- cealment on the part of the receiver, it is necessary to substitute erroneous supposition on the part of the testator. For example, I leave a certain legacy to Titius, who is married to my daughter, believing that marriage to be lawful, and not knowing the bad faith of Titius, who, before marrying my daughter, had contracted another marriage, stiH subsisting. Testaments are exposed to an unfortunate dilemma. Do we admit their validity when made upon a death-bed ? The testator is exposed to coercion and to fraud. Da we exact formalities MinrCIPLES OF IHE CITIL CODE. 187 incompatible witt tMs indulgence ? "We deprive the dying man of his power over the conduct of others, at the very moment when he needs it most. Barbarous heirs may torment him, in order to hasten or make sure of the advantage of a will executed in form. A dying man, who has no power to give or to take away, is no longer to be feared. A great many details wiU be necessary to reduce all these opposite dangers to their lowest amount. CHAPTEE V. Rights to Services. Methods of acquiring them. Aftee things, services remain to be distributed, a kind of property sometimes confounded with things, and sometimes appearing under a distinct form. There are as many kinds of services as there are ways in which man can be useful to man, either in procuring him some good, or preserving him from some evil. In that exchange of services which constitute social intercourse some services are free, and others are compulsive. Those which are exacted by the laws constitute rights and obligations. If I have a right to the services of another, that other is in a state of alligation with respect to me ; these two terms are correlative. At first, all services were free. It was only by degrees that laws intervened to convert the more important into positive rights. It was thus that the institution of marriage changed into an ob- Ugation legally binding the hitherto voluntary connection between husband and wife, father and chUd. In the same way, the law, in certain states, has converted into an obligation the maintenance of the poor, — a duty which yet remains, among the greater part of nations, entirely voluntary. These political duties, compared to duties purely social, are like inclosures in a vast common, where a particular kind of cultivation is carried on with precautions which insure success. The same plant might grow on the com- mon, and might even be protected by certain conventions ; but it would always be exposed to more hazards than in the par- 188 PEINCrPIES 01' THE CITtL CODE. ticular inclosure traced by the law, and protected by the public force. Yet, whatever the legislator may do, there is a great number of services upon which he has no hold. It is not possible to order them, because it is not possible to define them, or becauBS constraint would change their nature, and make them an evil. If it were attempted to enforce them by law, an apparatus of police and of penalties would be necessary, which would spread terror through society. Besides, the law could not act against the actual obstacles opposed to it; it could not put dormant powers into activity ; it could not create that energy, that super- abundance of zeal, which surmounts difficulties, and goes a thou- sand times further than commands. The imperfection of law, in this respect, is corrected by a kind of supplementary law ; that is, by the moral or social code — a code which is not written, which exists only in opinion, in manners, and in habits, and which begins where the legislative code flnisbesi The duties which it prescribes, the services which it imposes, under the names of equity, patriotism, coujage, humanity, gene- rosity, honour, and disinterestedness, do not directly borrow the aid of the laws, but derive their force from other sanctions,, founded upon punishments and rewards. As the duties of this secondary code have not the imprint of the law, their fulfilment has more iclat ; it is more meritorious ; and a superior degree of honour attached to their performance happily makes up for their deficiency in positive force. After this digression upon morals, let us return to legislation. The kind of service which is most important consists in giving up some good in favour of another. The kind of good which plays the greatest part in civilized ,i society is money, — a representative of value which is almost universal. It thus happens that the consideration of services is often confounded with that of things. There are cases where the service is exacted for the benefit of him who commands ; such is the state of a master in reference to his servant. PfirmciPiES OP THE cini cobe. 189 There are cases in ■wHch the service is exacted for the advan- tage of him who obeys ; such is the condition of the vsrard in reference to his guardian. These two correlative states are the foundation of all the others. The rights which belong to them are the elements of which all the others are composed. The father ought to be, in some respects, the guardian, in others the master of the child; the husband ought to be, in some respects, the guardian, in others the master of the wife. These states are capable of a constant and indefinite duration, and form domestic society. The rights which ought to be attached to them are discussed in subsequent chapters. The public services of the magistrate and the citizen constitute other classes of obligations, of which the establishment belongs to the constitutional code. But beside these constant relations, there are transient and occasional relations, in which the law may exact the services of one individual in favour of another. The means of acquiring rights to services — that is, the causes which determine the legislator to create obligation's — ^may be referred to three heads : — 1st, Superior need; 2nd, Anterior ser- vice ; 8rd, Pact or Agreement. I. SuPEKiOE Need. — That is, a need of the service greater than the inconvenience of rendering it. Every individual has, as a constant occupation, the care of his own happiness — an occupation not less lawful than necessary ; for suppose this principle could be reversed, and that the love of others should take an ascendancy over the love of self, what a ridiculous, what a fatal confusion would be the consequence! How- ever, there are many occasions when we can make a considerable addition to the well-being of others by a slight and almost imper- ceptible sacrifi.ce. In such circumstances, to do what depends upon us to prevent the evil about to fall upon another, is a service which the law may exact ; and the omission of this service, in cases where the law might see fit to exact it, would form a sort of ofience, which might be called negative, to distinguish it from positive offences, which consist in being the active and instrumental cause of evil. 190 PEINCrPLES OF THE CIVIL COBE. But to make efforts, however sliglrt, in the service of another, may be an evU,; to be obliged to make such efforts certainlyis one, for all restraint is evil. Therefore, to justify exacting from fou a service in favour of me, the evil of not receiving the service ought to be so great, and the evil of rendering it so small, that there can be no room for hesitation as to the expediency of pro- ducing the one, for the sake of avoiding the other. There are no means of fixing precise limits ; all must depend on the circum- stances in which the individuals interested are placed, and we must leave to the judge the power of deciding upon individual cases as they occur. The good Samaritan, by relieving the wounded traveller, saved his life. It was a noble action, a virtuous deed — nay, a mord duty. Can such actions be made a legal duty ? Can we ordain them by a general law ? No ; not unless we limit that law by exceptions more or less vague. It would be very necessary to establish in such a law a dispensation in favour of the surgeon waited for by many wounded men in great need of his services— of the officer who hastens to his post to repel the enemy — of the father who is rushing to the succour of his child. This principle of superior need is the foundation of many obli- gations. The duties required of a father to his children may be burdensome ; but that evil is nothing when compared to the evil of the children being abandoned. The duty of defending the state may be more burdensome yet ; but unless the state is defended, it cannot exist. If the taxes are not paid, the government is dissolved. If the public functions are not exercised, a career is opened to every disorder and to every crime. The obligation of rendering the service ought to fall upon a particular individual, by reason of his peculiar position, which gives him, more than any other person, the power or the incli- nation to perform it. It is for this reason that in selecting guard- ians for orphan children, the choice falls upon relations or friends, to whom the duty must be less burdensome than to a stranger. II. AwiEiiioit Seevtce. — A service rendered, — in PEINCIPLES 01? THE CIVIL CODE. 191 of which there is exacted from Mm who received the lenefit a com- pensation, an equivalent in favour of him who conferred it. This case is more simple ; it is only necessary to ascertain the value of a benefit already received, and to assign a compensation for it. The judge will not need so much latitude of discretion. A surgeon has bestowed his services upon a sick man who had lost his senses, and who was not in a condition to ask for assist- ance, A depositary, though not requested to do so, has employed his labour, or has made pecuniary advances for the preservation of a deposit. A man has exposed himself in a fire to save valu- able property, or to rescue persons in danger. The effects of a passenger have been thrown overboard to lighten the ship, and to preserve the rest of the cargo. In all these oases, and in a thou- sand others which might be cited, the laws ought to insure a recompense equivalent to the value of the service. This title to indemnity is foimded upon the best reasons. Grant it, and he by whom it is furnished wUI still be a gainer ; refuse it, and you leave him who has done the service in a con- dition of loss. Such a regulation is less for the benefit of him who receives the compensation, than for the benefit of those who need the service. It is a promise of indemnity made beforehand to every man who may have the power of rendering a burdensome service, in order that a prudent regard to his own personal interest may not come into opposition with his benevolence. Who can say how many evils might be prevented by such a precaution ? In how many cases may not the duty of prudence restrain the wishes of benevolence ? Is it not wise for the legislator, as far as pos- sible, to reconcile these motives ? It is said that ingratitude was punished at Athens as an infidelity injurious to the commerce of benefits. I do not propose to punish ingratitude ; but as far as possible to prevent it. If the man to whom you have rendered a service is ungrateful, — no matter; the law does not count upon virtue ; it assures you a compensation, and in important cases it will elevate that compensation to the level of reward. Eeward ! that is the true means of obtaining services. In 192 PEHfOIPLBS OF THE Cim CODE. comparison, punishment is but a feeble instrument. To punisi an omission of service ■we must first be sure that the individual had the power to render it, and that he has no excuse for not having done so. All this requires , a process of investigation, difldoult and doubtful. Besides, if men act from the fear of punishment, nothing will be done except what is absolutely necessary to avoid it ; but the hope of reward develops an un- known strength; it triumphs over real obstacles, and brings forth prodigies of zeal and ardour in. cases where threats would produce only an unwilling submission. Three precautions must be observed in arranging the interests of the two parties. First, — to prevent a hypocritical generosity from converting itself into tyranny, and exacting the price of a service which would not have been accepted had it not been sup- posed disinterested. Secondly, — ^not to authorize a mercenary zeal to snatch rewards for services which the person obliged might have rendered to himself, or have obtained elsewhere at a less cost. Thirdly, — not to suffer a man to be overwhelmed by a crowd of helpers, who cannot be fully indemnified without counterbalancing by an equivalent loss the whole advantage of the service. Anterior service justifies many classes of obligations. On this is founded the right of fathers over their children. "When in the order of nature the strength of ripening age has succeeded to the feebleness of infancy, the need of receiving ceases, and the duty of restitution begins. Upon this also is founded the right of the wife to the continuance of the union after the period when time has effaced the attractions which were its first motive. Establishments at the public expense for those who have served the state rest upon the same principle, — reward for past services as a means of creating future ones. III. Pact oe Ageeement. — The intervention of a promiit between two persons, with the understanding that a legal oUigatim attaches to it. Everything that has been said of consent, in relation to the distribution of property, applies to consent as respects the inter- PEnfCIPlES OP THE CIVIL CODE. 193 change of services. There are the same reasons for sanctioning this interchange of services as for sanctioning the interchange of property. Both rest on the same fundamental axiom, that every alienation imports an advantage. Bargains are not made except from the motive of utility. The same reasons which annul consent in the one case, annul it in the other — Concealment ; fraud ; coercion ; suhornation ; erroneous idea of legal ohligation ; erroneous idea of value ; incapacity ; pernicious tendency of the bargain, though ■without fault in the contracting parties. We need not enlarge upon those subsequent causes which produce the dissolution of agreements : — \^t, Aeoomplishment ; 2nd, Compensation ; 3rd, Express or tacit remission ; 4th, Lapse of time; 5th, Physical impossibility; 6th, Intervention of a superior inconvenience. In all these cases, the reasons which caused the agreement to be sanctioned exist no longer ; but the two latter relate only to the literal or specific accomplishment of the bargain, and may stiU leave room for compensation. If in a mutual bargain one of the parties only has fiilfilled his part, or if his part he the more nearly performed, a compensation from the other wOl be necessary to re-establish the equilibrium. It is enough to point out the principles without dwelling on the details. Particular arrangements must vary according to circumstances. However, if we establish firmly a small number of rules, these particular arrangements will not interfere with each other, and wiU aU be arranged in the same spirit. These rules are so very simple that they need no development. 1st. Avoid producing disappointinent. 2nd. When a portion of that evil is inevitable, diminish it as much as possible by dividing the loss among the parties interested in proportion to their means. 3rd. Take care in the distribution to throw the greater part of the loss upon him who, by attention, might have prevented the evil, so as to punish his negligence. 4th. Avoid especially producing an accidental evil greater than disappointment. 194 PEDsrciPiES or ihe ctvxl code. Yi. — It is thus that the vhole theory of ohligations may he made to rest upon the hasis of utility. "We have built the whole of this vast edifice upou three priaciples — superior need, artterior service, pact or agreement. Who would have believed that to arrive at principles so simple and so familiar, it would have been necessary to open a new road ? Consult those masters of the science, Grotius, Puffendorf, Burlamaque, Vatel, Montesquieu himself, Locke, Bousseau, and the crowd of com- mentators. When they wish to lay open the origin of ohligations, they tell you of a natural right, of a law anterior to man, of the Divine law, of conscience, of a social contract, of a tacit contract, of a quasi contract, &o., &c, I know that these terms are not incompatible with the true principle, because aU of them, by explanations more or less forced, may be made to signify good and evil. But this oblique and roundabout process involves uncer- tainty and embarrassment, and leads to interminable disputes. They have not perceived that the pact, the contract of which they tell us, strictly speaking, is not a reason in itself; and that it wants a basis, an original and independent reason, on which to rest. The pact serves to prove the existence of a mutual ad- vantage on the part of the contractors. It is this reason of utility which gives the contract aU its force ; thereby it is that the caaes are distinguished in which a contract ought to be confirmed, as well as those in which it ought to be annulled. If a contract were a' reason of itself, it ought always to have the same efiect. If a pernicious tendency makes it void, it must be a useful tendency which makes it valid. CHAPTEE VI. Community of Ooods, or Tenancy in common. Its Incomeniences. Thehe is no arrangement more contrary to the principle of utility than community of goods ; especially that kind of indeterminate community where the whole belongs to each of the partners. 1st. It is the source of never-ending discord. Instead of being PKINCIPLES as THE CITH, CODE. 195 a state of satisfaction and enjoyment for all interested, it is a state of discontent and disappointment. 2nd. This undivided property always loses a great part of its value for all the partners. Subject on the one hand to all kinds of depredations, because it is not under the protection of indi- vidual interest, on the other it receives no repairs or improve- ments. ShaU I risk an expense of which the burden vnU be certain, and which will fall entirely upon me, while the benefit of it will be precarious and divided ? 3rd. The apparent equality of this arrangement only serves to cover a real inequality. The strong abuse their strength with impunity ; and the rich grow richer, at the expense of the poor. The community of goods calls to mind that sort of monster which is sometimes seen to exist, — beasts joined together back to back ; in such cases, the stronger always carries off the weaker. The question is not here of the community of goods between husband and wife. Called to Hve together, to cultivate their interests together, and to feel a mutual concern for the iaterests of their children, they ought to enjoy in common a fortune often acquired, and always kept by common cares. Besides, if their wiUs conflict, the dispute will not be lasting ; the law confers upon the husband the right to decide . Nor is the question here of common property among partners in trade. That tenancy in common is confined merely to acqui- sition ; it has nothing to do with enjoyment. Ifow, as concerns acquisition, the partners have but one and the same interest. "When the gains are to be enjoyed, they are divided, and each partner becomes independent of the others. Besides, associates in commerce are always few in number ; they select each other, and separate at wiU. It is precisely the contrary with joiat pro- prietors of land. In England, one of the greatest and best established improve- ments is the division of commons. In passing through the lands which have iindergone that happy change, we are- enchanted as by the sight of a new colony. Harvests, flocks, smiling habitar tions, have succeeded to the dull sterility of a desert. Hafpy o 2 196 PEISrCIPLES OP THE CIVIL CODE. conquests of peaceful industry ! Noble aggrandizeiiient, wHcli inspires no alarms, and provokes no enemies ! But wlio would believe that in a country -where agriculture is so Hghly estimated, millions of acres of productive land are still abandoned to tte wild state of common tenancy ? A short time since the govern- ment, desirous of knowing the true condition of its territory, caused an examination to be made in every county, which has brought to light a truth so interesting and' so calculated to pro- duce important consequences. The inconveniences of tenancy in coinmon, except in accidental cases, do not apply to the case of servitudes, — ^that is, to rights of partial property exercised over immoveables, such as a right of passage, or a right to draw water. These rights are in general limited ; the value lost by the subject property is not equal to the value acquired by the property to which the right attaches ; or, in other terms, the inconvenience to the former is not so great as the conveniency to the latter. In England, land which, being freehold,, is worth thirty times the annual rent, being copyhold, is worth but two-thirds as much. The reason is, that in the latter case a lord of the manor pos- sesses certain rights which establish a kind of common tenancy between him and the principal proprietor. But it is not to he supposed that what is lost by the copyholder is gained by the lord ; for the greater part of it falls into the hands of agents and attorneys, and is consumed in useless formalities and minute vexations. These are the remnants of the feudal system. "It is a fine spectacle," says Montesquieu, "that of the feudal laws," — and afterwards he compares them to an ancient and * There are oircumBtanoes whicli justify exceptions to general mles. The citizens of the small Swiss cantons, for example, possess the greater part of their lands, to wit, the High Alps, In common. It may be tlflt this arrangement is the only one convenient for pasturages which are practicable only a part of the year. It may be, too, that this method of holding their lands forms the necessary basis of a oonstitntion purely democratic, well adapted to the condition of a little community, shut up in an inclosure of mountains. PItIlil of the first Order. The evil of the first order resulting from an offence may be esti- mated according to the following rules : — 1st. The evil of a complex offence will be greater thtin that of either of the simple offences into which it can be resolved. A perjury, of which the effect shall be to cause the punishment of an innocent person, will produce more evU than a perjury which procures the discharge of a guilty one. In the former case there is a private offence combined with the public offence ; in the latter case there is only a public offence. 2nd. The evU of a demi-pubHo or public offence, which evil propagates itself, will be greater than the evil of a private offence of the same kind. It is a greater evil to carry a pestilence into a whole continent, than into some small island with few inha- bitants, and little frequented. It is this tendency to spread, in which consists the particular enormity of arson and inundation. 3rd. The evU of a demi-public or public offence, which, instead of multiplying itself, tends constantly to subdivision, wiU be less than that of a private offence of the same denomination. If the public treasury be robbed, the evil of the first order wiU. be less 248 PEINCIPLES OF THE PENAL CODE. than in the case of an equal robbery committed upon an indi- Tidual ; for the evil which, the individual has suffered can be made up by granting him at the public expense an indemnity equivalent to his loss. This being done, things wiU be brought to the same state as if the theft, instead of being committed upon Paul or Peter, had been directed against the public treasury.* Offences against property are the only ones susceptible of this repartition ; and the evil of these offences is diminished in pro- portion as it is distributed among a greater number, and as the individual sufferers are richer. 4th. The total evil of an offence is increased, if there result from it a consequential evil to the same individual. If in con- sequence of an imprisonment, or a wound, you have lost a place, a marriage, a lucrative business, it is plain that these losses are a net addition to the primitive evil. 5th. The total evil of an offence is increased, if there result from it a derivative evil, which falls upon some other person. If in consequence of a wrong done to you, your wife or your chil- dren feel the miseries of want, this is an incontestable addition to the primitive evil. Besides these rules, which enable us to estimate the evil of the first order, we must take the aggravations into account ; that is, the particular circumstances which augment the evil. We shall presently exhibit a complete table of them, foimded upon the following principles: — 1st. Augmentation of evil resulting from an extraordinary portion of physical pain, not of the essence of the offence. Addition of Physical pain. 2nd. Augmentation of evil by a circumstance which, to the essential evil of the offence, adds the accessary evil of terror. Addition of terror. 3rd. Augmentation of evU from some extraordinary circum- stances of ignominy. Addition of disgrace. * But though, in a case like this, the evil of the first order is less, it is not so with the evil of the second order — ^that is, the alarm. But this vrill be considered in its proper place. PEnrCIPLES OF THE PENAL CODE. 249 4th. Augmentation of evil from tie irreparable nature of the damage. Irreparable damage. 5th. Augmentation of evil arising from the extraordinary sen- sibUity of the individual injured. Aggrwoation of suffering. These rules are absolutely necessary. We must be able to cal- culate the evil of the first order, because in proportion to its apparent or real value, alarm will be greater or less. The evil of the second order is only a reflection of the evil of the first order. Other circumstances, however, modify the alarm. CHAPTEE, VI. Of Intention. "Weethee a man commits an offence knowingly and willingly or unwillingly and undesignedly, the immediate evil is exactly the same. But the alarm which results is very different. "We regard him who has done an evil with Imowledge and design, as a bad and dangerous man. He who has done an evil without designing and without knowing it, is looked upon as a man to be feared only by reason of his inadvertence or his ignorance. The security felt by the piiblic, notwithstanding the commis- sion of an offence, when the act was unintentional, is not sur- prisiag. Observe the circumstances of the act. The delinquent had no design to put himself in opposition to the law. He has either committed the offence because he lacked a motive to abstaiu from it, or it resulted from an unfortunate concourse of circumstances ; it is an isolated and fortuitous fact, which has no tendency to produce a repetition of itself. But an offence in- tentionally committed is a permanent cause of evU. "We see in what the delinquent has done what he wishes to do, and what he is able to do again. His past conduct is a prognostic of his fliture conduct. Beside the idea of a villain saddens and frightens us. It recalls to our minds that dangerous and mischievous class which surrounds us with secret snares, and carries on its conspi- racies in silence. 260 PEINCrPLES OF THE PENAL CODE. The people, guided by a just instinct, almost always say of an unintentional offender ttat lie is more deserving of pity than of blame. In fact, a man of no more than ordinary sensibility cannot but experience the most lively regrets at evils of which he is the innocent cause. He needs consolation rather than punishment. He is even less to be feared than any other man ; • his regrets for the past furnish a particular security for the future. Beside, an offence committed without intention holds out the hope of indemnity. When a delinquent expects to encounter punishment, he takes precautions to cover himself against the law; an innocent man acts openly, and will not think of refusing a legal reparation. Such is the general principle. Its application is a matter of considerable difficulty. To become well acquainted with all the characteristics of intention, it is necessary to examine all the different possible states of mind at the moment of action, as respects design and knowledge ; and how numerous are the pos- sible modifications of the understanding and the will ! An archer shoots an arrow on which is written, " For Philip's left eye ;" the arrow strikes Philip's left eye. Here is an inten- tion corresponding exactly to the fact. A jealous husband surprises his rival, and to perpetuate his vengeance, mutilates him. The operation produces death. In this case the intention to kill was not full and absolute. A hunter sees a deer and a man close together. He really thinks that he cannot shoot at the deer without danger to the man. However, he shoots ; and the man is killed. In such a case the killing was voluntary, but the intention to kill was only indirect. As to the relation of the understanding to the different circum- stances of an action, it may be in three states : knowledge, igno- rance, misinformation. You may know that a beverage is a poison ; you may know nothing ahout it ; you may think it can do only a trifling injury, or that it is, in certain cases, a remedy. PEINCrPLES OP THE PENAI CODE. 251 Such, axe tlie preliminaries for settling the question of inten- tion, I shall not attempt at present to enter further into this difficult suhject. CHAPTEE VII. Position of the Delinquent ; its Effect wpon Alwrm. Theee are offences which anyhody may commit ; there are others dependent upon a particular position which famishes the delin- quent an occasion for the offence. This latter circumstance tends, in general, to diminish the alarm hy contracting its sphere. A larceny produces a general alarm. An act of peculation committed by a guardian upon his ward produces hardly any. Whatever might be the alarm caused by the extortions of an officer of the police, a contribution levied by robbers upon the highway produces terror infinitely greater. Why? Because everybody sees that an extortioner in place, however rapacious, still has some restraints and some limits. He must have occa- sions and pretexts to abuse his power; while robbers on the highway threaten aU the world, at all times, and are not at all controlled by public opinion. This circumstance has the same sort of influence upon other kinds of offences, such as seduction and adultery. You cannot seduce the first woman you meet, as you might rob her. Such an enterprise requires an intimate acquaintance, a certain cor- respondency of rant and fortune — ^in one word, the advantage of a particular position. Of two homicides, one committed to secure an inheritance, the other as a means of robbery ; the first evinces a more atrocious character, but the second excites the greater alarm. The man who feels confident of the good disposition of his heirs experiences no sensible terror at the first event ; but what security can he have against robbers? The villaui who commits a murder tb make sure of an inheritance is not likely to change into a high- 252 PBiNcrPLES OF the pbnal code. way assassin. He will hazard a danger for the sake of an estate which, he would not risk for a few crowns. This same ohserration may he extended to all offences which imply a violation of deposit, an ahuse of confidence, or a misuse of power, whether public or private. They cause less alarm in proportion as the situation of the delinquent is more peculiar, the number of persons in similar situations smaller, and the sphere of the offence more limited. However, there is one important exception. If the delinquent' is clothed with great powers ; if he envelopes in his sphere of action a great number of persons ; his situation, though peculiar, increases the circuit of alarm instead of diminishing it. Let a judge undertake to rob, to kiU, to tyrannize ; let a military officer make it his busiiiess to plunder, to vex, to shed blood ; the alarm they will excite, being proportioned to the extent of their powers, may surpass that of the most atrocious robberies. In these elevated positions, alarnj may be created even without offence. A simple mistake without bad intention may cause the most lively terror. Is an innocent man condemned to death by an honest but ignorant judge? The moment this mistake is known the public confidence is wounded, the shock is everywhere felt, and inquietude reaches the highest point. Fortunately, this kind of alarm may be arrested at once, by the displacement of incompetent officer. CHAPTER VIII. The Influence of Motives upon the greatness of Alarm. If the offence in question proceeds from a particular motive, rare, and belonging to a class of motives small in number, the alarm wiU have little extent. If it proceeds from a motive common, frequent, and powerful, the alarm will have a greater extent, because a greater number of persons wiU feel themselves to be in danger. Compare the results of an assassination committed by a robber. PRINCIPLES OF THE PEITAI, COBB. 253 witli those of an assassination committed for rsTenge. In tie first case, the danger is regarded as almost nniversal ; the second is a crime ■which, terrifies those only who have enemies, and enemies whose hatred has reached an uncommon pitch of atrocity. An offence which grows out of a party quarrel causes a greater alarm than the same offence when produced by private hostility. Towards the middle of the last century, there existed in Den- mark and a part of Germany, a religious sect whose principles were more frightful than the. blackest passions. According to these fanatics, not good actions, but repentance, was the surest means of gaining heaven ; and the efficacy of repentance would be the greater the more it absorbed all the faculties. Now, the more atrocious was the crime, the greater certainty there was of giving to remorse an expiatory force sufficiently energetic. Upon the strength of this logic, a madman sought to merit salvation and a hanging, by the murder of an infant chUd. If this sect had been able to maintain itself, the human race would have come to an end.* Motives are commonly spoken of as good or lad. This is an error. Every motive, in the final analysis, is the perspective of a pleasure to be procured, or of a pain to be avoided. Now the same motive, which in certain cases leads to the performance of an action esteemed good, or indifferent, may lead in other cases to an action reputed to be bad. A beggar steals a loaf; another person buys one ; a third works, that he may get the means to buy. The motive which actuates aU three, is one and the same, to wit, the physical pain of hunger. A pious man founds a hos- pital for the poor, another goes on a pilgrimage to Mecca, a third assassinates a prince whom he thinks to be a heretic ; their motive may be exactly the same, — the desire of conciliating the Divine favour, according to the different opinions which they have formed * I have Bomewliere read that the great Frederic, when the first in- stance of this fanaticism made its appearance in Prussia, ordered the assassin to be shut up in a madhouse. He thought putting him to death would he rather a reward than a punishment. This was enough to put a stop to the crime. 254 5EINCIPLES or the pbitai code. of it. A geometrician lives in. an austere retreat, and gives himself up to tlie profoundest labours ; a man of the world ruins himself and a multitude of creditors by excessive expenditures ; a prince undertakes a conquest, and sacrifices myriads of men to his pro- jects ; an intrepid warrior rouses the courage of a beaten people, and triumphs over an usurper ; — aU these men may be animated by a motive exactly the same, the love of reputation. In this way, we might examine all motives, and we should perceive that each of them may give birth to actions the most laudable, or the most crimiaal. Motives then ought not to be regarded as exclusively good or bad. However, in considering the whole catalogue of motives, that is, the whole catalogue of pleasures and pains, we may classify them according to the tendency which they seem to have to unite or to disunite the interests of the individual and of the community. Upon this plan, motives may be distinguished into four classes, — ^6 purely social motive, benevolence; semi-social motives, the love of reputation, the desire of friendship, religion ; anti-social motives, antipathy in all its branches ; personal motives, pleasures of sense, love of power, pecunisiry interest, the desire of self-preservation. The personal motives are the most eminently useful, the only ones whose action can never be suspended, because nature has intrusted to them the preservation of individuals. They are the great wheels of society ; but their movements must be regulated, moderated, and maintained in a right direction, by motives drawn from the two first classes. It must not be forgotten that even the anti-social motives — necessary, to a certain degree, for the defence of the individual — may, and often do, produce useful actions, actions absolutely necessary to the existence of society ; for example, the denounce- ment and prosecution of criminals. Another classification of motives may be made, by considering their more common tendency to produce good or bad effects. The social and demi-social motives may be called tutelary motives ; the anti-social and personal may be denominated seductive motives. These denominations niust not be taken in a rigorous sense, hut PEINCIPliS OP THE PENAL CODE. 255 ihey are not without justice and truth. ; for whenever there is a Conflict of motives acting in opposite directions, it is found that the social and demi-social motives generally operate in conformity with utility, while the anti-social and personal motives are those wliich tend the other way. I Without entering into a deeper investigation of motives, let us stop at that point in which the legislator is interested. To judge 'an action it is necessary to look first to its effects abstracted from everything else. The effects being well ascertained, we may in certain cases ascend to the motive, in order to discover its influ- ence on the greatness of the alarm, but without giving any atten- tion to the good or bad quality which its common name impKes.* For the most approved motive cannot transform a pernicious action into an action useful or indifferent ; nor can a motive the most reprobated transform a useful action into a bad one. All that the motive can do is to raise or lower the moral quality of the action. A good action prompted by a tutelwry motive becomes better ; a bad action founded on a seductive motive is so much the ■worse. Let us apply this theory to practice. A motive belong- ing to the seductive class is no offence in itself, but it may form a means of aggrmation. A motive of the tutelary class vsdll not have the effect to justify or to excuse, but it may serve to diminish * What I mean by the common names of motives are those names which carry with them an idea of approbation or disapprobation. A neuter name is that which expresses the motive without any association of blame or praise ; for example, ipecvmAairy interest, love of power, desire of friendship or fmiovjr, whether of Goi, or mwn, cwriosiby, love of reputation, ^amfrom the imfUdyion of cm imjwry, desire of self-preservation. But these motives have common names, as avarice, cupidity, ambition, vanity, vengeance, animosity, &o. When a motive bears a name of reprobation, it seems contradictory to maintain that any good can result from it ; if it bears a name of favour it seems equally contradictory to suppose it can result in evil. Almost all moral disputations rest upon this foundation of ambiguity. To out them up by the roots, it is only necessary to give neuter names to motives. We can then go on with the examination of their effects, without being disconcerted by the common association of 256 PEINCrPLES OF THE PENAI. CODE. tte necessity of a pumshment ; in other words, it forms a ground of extenuation. Let us recollect that there is no room for considering the motive except when it is manifest and palpable. It would often be very difficult to discover the true or dominant motive, when the action might be equally produced by different motives, or where motives of several sorts might have co-operated in its production. In the interpretation of these doubtful cases it is necessary to distrust the malignity of the human heart, and that general disposition to exhibit a brilliant sagacity at the expense of good nature. We involuntarily deceive even ourselves as to what puts us into action. In relation even to our own motives we are wilfully blind, and are always ready to break into a passion against the oculist who desires to remove the cataract of ignorance and prejudice. CHAPTEE IX. Facility or Biffioulty of Preventing Offences. Their Influence on Alarm. The mind sets itself at once to examine the means of attack and the means of defence, and according as the offence is judged more or less easy to be consummated, our inquietude is greater or less. This is one of the reasons which raises the evil of an act of robbery so far above that of a theft. Force can effect many things which would be beyond the reach of stratagem. Eobbery directed agaiust a dwelling-house is more alarming than robbery on the highway ; that done by night is more terrifying than that done in the day-time ; that which is combined with arson than that which is limited to ordinary means. On the other hand, the greater facility we see in repelling an offence, the less alarming it appears to us. The alarm cannot be very great when the offence cannot be perpetrated except with the consent of him who suffers by it. It is easy to apply this prin- ciple to oases of fraudulent acquisition, seduction, duels, and to offences against one's self, particularly suicide. PBINCITLES OE THE PESTAt CODE. 257 The rigour of laws against domestic theft has doubtless ori- ginated in the difficulty of guarding against it. But the aggra- vation which results from that circuftistance is not equal to the effect of another circumstance which tends to diminish the alarm, to wit, the peculiarity of position necessary to furnish occasion for the theft. The domestic thief once known is no longer dan- gerous. He needs my consent to plunder me ; I must introduce him into my house and give him my confidence. When it is so easy to guard against him, he can inspire only a very feeble alarm.* CHAPTEE X. JSffect produced upon Alarm ly greater or less FaeiliUes for Secrecy, The alarm is greater when by the nature or the circumstances of the offence it is more difficult to discover it or to find out its author. If the deHiiquent remains unknown, his success is an encouragement to him and to others ; there seems no limit to the impimity of similar offences, and the injured party loses the hope of indemnity. There are offences which admit particular precautions adapted to secrecy, such as a disguise, the choice of the night as the time of action, and anonymous, threatening, extorsive letters. There are also distinct offences which are committed to render the discovery of other offences more difficult. Persons are impri- soned, abducted, or murdered for the sake of suppressing their testimony. In cases where by the nature of the offence the author must be known, the alarm is considerably diminished. Thus a personal injury, resulting from some momentary transport of passion, excited by the presence of an enemy, inspires less alarm than a * The principal reason against severity of pnnisliment in this case is, that it gives masters a repugnance to prosecute, and of course favours impunity. 358 PEINCIPIES OF THE PENAL CODE. theft -wHoh affects concealment, although the evil of the first order may be greater in the former case than in the latter. CHATTEE XI. Effect of the Delinquent's Character upon Alarm. The character of the delinquent will be presumed from the nature of the offence, especially from the magnitude of the evil of the first order, which is the most apparent part of it. Other presumptions mil be famished by circumstances and details attending the perpetration of the offence. The character of a man will appear more or less dangerous, , according as the tutelary motives appear to have more or lees empire over him, as compared vnth the seductive motives. There are two reasons why character ought to exert an influ- ence upon the choice and the quantity of the pxmishment ; first, because it augments or diminishes the alarm ; secondly, because it furnishes an index of sensibility. There is no need of em- ploying such strong means to restraia a character, weak, but good at bottom, as would be necessary in case of an opposite temperament. The grounds of aggravation which may be derived from this source are as follows : — 1st. The less an injured party is capable of defending himself, the stronger ought to be the natural sentiment of compassion. The law of honour, coming to the support of this instinct of pity, makes it an imperious duty to be tender with the feeble, and to spare those who cannot resist. The first index of a dangerous character is oppression of the tvealc. 2nd. If weakness alone ought to excite compassion, the sight of suffering ought to act in that direction with a yet stronger force. A refusal to succour misfortune forms of itself a presump- tion little favourable to character. But what shall we think of him who selects the moment of distress to add new anxieties to an afflicted spirit, to render a disgrace more bitter by a new PEUfCIPLES OP THE PESTAX CODE. 359 affront, or to complete the plunder of suffering poverty ? The second index of a dangerous character is aggravation of distress. 3rd. It is an essential branch of moral police, that those who have been able to form superior habits of reflection, those in whom greater wisdom and experience can be presumed, should obtain the regard and the respect of those who have not been able, in the same degree, to acquire habits of reflection, and the advantages of education. This kind of superiority is commonly met with among the most distinguished citizens, in comparison, with the less elevated, among the old men and the more aged of the same rank, and in certain professions consecrated to public instruction. There have been formed among the mass of the people sentiments of deference and of respect, relative to these distinctions : and this respect, which is of the greatest use in repressing without effort the seductive passions, is one of the most solid foundations of morals and of laws. The third index of a dangerous character is disrespect towards superiors. 4th. When the motives which have led to crime are compara- tively light and trifling, it is evident that the sentiments of honour and benevolence have very little force. If that man is esteemed dangerous who is pushed by an imperious desire of vengeaace to transgress the laws of humanity, what shaU be thought of him who gives himself up to acts of cruelty out of a mere motive of curiosity, imitation, or amusement ? The fourth index of a dangerous character is gratuitous cruelty. 5th. Time is particularly favourable to the development of the tutelary motives. At the first assault of a passion, as at the first blast of a storm, the sentiments of virtue may bend for a moment ; but if the heart is not perverted, reflection presently restores their former force, and leads them back in triumph. If a considerable space of time has elapsed between the project of a crime and its accomplishment, it is an unequivocal proof of a ripe and settled wickedness. The fifth index of a dangerous character is premeditation. 6th. The number of accomplices is another mark of depravity. This concert supposes reflection, aad a sustained and continuous s 3 260 PEINCIPLES OF THE PENAL CODE. plan. Besides, the union of several against one is tie double mark of cruelty and of cowardice. The sixth iudex of a dan- gerous character is conspiracy. To these grounds of aggravation may he added two others less easy to classify — falsehood, and violation of confidence. Falsehood impresses a deep and degrading blot upon the character, which even brilliant qualities cannot efface. In this respect public opinion is just. Truth is one of the first wants of man ; it is one of the elements of our existence ; it is as necessary to us as the light of day. Every instant of our lives we are obliged to form judgments and to regulate our conduct according to facts; and it is only a small numher of these facts which we can ascertain from onr own observation. There results an abso- lute necessity of trusting to the reports of others. If there is in these reports a mixture of falsehood, so far our judgments are erroneous, our motives wrong, our expectations misplaced. We live in restless distrust, and we do not know upon what to put dependence. In one word, falsehood includes the priuciple of every evil, because in its progress it brings on at last the disso- lution of human society. The importance of truth is so great, that the least violation of its laws, even in frivolous matters, is always attended with a certain degree of danger. The slightest deviation from it is an attack upon the respect we owe to it. It is a first transgression which facilitates a second, and familiarizes the odious idea of false- hood. If the evil of falsehood is so great in things which are themselves of no consequence, what must it be upon those more important occasions, when it serves in itself as the instrument of crime ? Falsehood is a circumstance sometimes essential to the nature of an offence, and sometimes simply accessory. It is necessarily involved in perjury, and in fraudulent acquisition under all its modifications. In other offences it is collateral and accidental. It is only in relation to these latter offences that it can furnish a separate ground of aggravation. Violation of Confidence has reference to a particular position, to PEOrcIPLES OP THE PENAL CODE. 361 an intrusted power which, imposes upon the delinquent some strict obligation which he has violated. It may be considered sometimes as the principal offence and sometimes as an accessory offence. It is not necessary to enter here into detaUs. There is one general remark which may be made upon all these grounds of aggravation. Though they aU. furnish indications unfavourable to the character of the delinquent, that is no reason for a proportionate augmentation of punishment. It will be sufficient to modify it in a certain way analogous to the attending aggravation, and so as to excite in the minds of the citizens a salutary antipathy against the aggravating circumstance. But this will become more clear when we treat of the means of ren- dering punishments characteristic* Let us now pass to the extenuations, which may be derived from the same source of character, and which should have an effect to diminish punishment. I give this name to circumstances which furnish a favourable indication with respect to the cha- * We may here propose a question interesting to the moralist and the legislator : — ^If an individual indulges in actions which the pubHc opinion condemns, but which, accordiug to the principles of utility, it ought not to condemn, can we deduce from this circumatance an indication un- favourable to his character ? I answer, that a virtuous man, though he submits in general to the tribunal of public opinion, may stiU vindicate his independence in j)ar- ticnlar cases, in which he thinks the judgment of that tribunal contrary to reason and his own happiness ; or where it demands a sacrifice painful to him, and of no real use to anybody. Take a Jew at Lisbon for example ; he dissembles, he violates the laws, he braves an opinion which has all the force of popular sanction in its favour, and is he therefore the worst of men ? Shall he be thought capable of all crimes ? Would he calumniate, rob, and commit perjury if he had a hope of doing it with impunity ? No : a Jew in Portugal is no more given to these offences than elsewhere. — Let a monk permit himself secretly to violate some of the absurd and painful observances of his convent, does it foUow that he is a false and dangerous man, ready to violate his word upon a point where probity is involved? This conclusion would be quite unfounded. Simple good sense, enlightened by self-interest, is often able to explode a general error, without leading on that account to a contempt of essential laws. 263 PEIIfCIPLES OF THE PEJTAIi CODE. raoter of tie delinquent, and -which tend in consequence to lessen the alarm. They may be reduced to nine : — 1st. Absence of bad intention. 2nd. Self-preservation. 3rd. Provocation. 4th. Preservation of some near friend. 5 th. Transgression of the limit of self-defence. 6th. Submission to menaces. 7th. Submission to authority, 8th. Drunkenness. 9th. ChUdhood. It is a point common to these circumstances, except the two last, that the offence does not originate in the will of the delin- quent. The primary cause is the act of another, the will of another, or some physical accident. Aside from that event, the offender would not have dreamed of the offence ; he would have remained entirely innocent ; and, even though he should not he punished, his future conduct would still be as good as if he had not committed the offence. Each of the circumstances above enumerated demands details and explanations ; but I shall confine myself here to the observa- tion that the judge must be allowed a great latitude in appre- ciatiag the validity and extent of these different grounds of extenuation. Does the question relate to a provocation ? A provocation, to deserve indulgence, must be recent ; it must have been received in the course of the same quarrel. But what constitutes the same quarrel ? What ought to be looked upon as a recent injury ? It is necessary to trace lines of demarcation. Let not the sun go down wpon your wrath, is the precept of Scripture. Sleep ought to calm the transport of the passions, the fever of the senses, and prepare the mind for the influence of the tutelary motives. In the case of homicide, this natural period might serve to dis- tinguish what is premeditated and what is the effect of sudden passion. PEIWCIPLES OP THE PENAE CODE. 363 In the case of drunkenness it is necessary to examine if the intention to commit the offence did not exist beforehand, if the drunkenness were not feigned, and if it were not designed to create energy for the perpetration. Eepetition ought, perhaps, to annihilate this excuse. He who knows by experience that wine renders him dangerous, does not merit indulgence for the excesses into which it may lead him. The English law does not admit any plea of extenuation in the case of drunkenness. That would be, it is said, to excuse one offence by another. This reasoning seems to be hardhearted and superficial ; it springs from the ascetic principle, — that austere and hypocritical doctrine which those of a certain profession think themselves obliged to maintain, but which is scouted by all the rest of the world. As to childhood, we do not here speak of that tender age which is not responsible for its actions, and at which punishments would produce no effect. Infancy of that sort is not an extenuation ; for in fact there is no offence. Such a child is not a moral agent. What good would be done by pimishing judicially, for the crime of arson, an infant four years old ? Within what limits ought this ground of extenuation to be restricted ? A limit sufficiently reasonable seems to be the epoch at which enough of mental maturity is presumed to release a person from pupilage, and to render him master of himself. Before that period he is not thought to have sufficient understand- ing to be intrusted with the management of his own affairs. Why should the law despair before it allows him to hope ? It is not intended that the ordinary punishment ought neces- sarily to be diminished in the case of every offence committed before the age of majority. That diminution ought to depend upon all the circumstances of the case. What is intended is, that after that epoch is passed, punishment shall no longer be liable to diminution under the plea of childhood. Infamous punishments are those which ought principally to be remitted under this plea. He who has no hope of recovering his reputation will hardly recover his virtue. 364 PErNCIPLES OF THE PENAL CODE. "WTieii I speak of the age of majority, I do not mean the Eoman majority, fixed at twenty -five years ; because it is an injustice and a folly to retard so long the liberty of men, and to retaia them ia the leading-strings of infancy after the fall development of their faculties. It is the English rule of twenty-one years which I have in view. "We have seen Great Britain governed for years by a minister who managed, vrith great reputation, the infinitely complicated system of its finances, long before the age at which, in the rest of Europe, he would not have been capable of selling an acre of land. CHAPTER XII. Cases in, which there is no Alarm. There is no alarm whatever in those cases in. which the only persons exposed to danger are incapable of fear. This circumstance explains the insensibility of many nations on the subject of infanticide, that is, homicide committed on the person of a new-bom infant, with the consent of the parents. I say with their consent, for otherwise the alarm would be almost the same as if the sufferer were an adult. As the susceptibility to fear is less on the part of infants, the more readily is paternal tenderness alarmed on their account. I do not justify these nations. It is a striMng additional mark of their barbarity that they have given to the father the right of destroying the infant without the consent of the mother, who, after all the dangers of maternity, is deprived of her reward, and reduced by this unworthy servitude to the same state with the inferior animals whose fecundity is a burden to us. Infanticide, such as I have described it, ought not to be punished as a principal offence, since it produces no evil either of the first or of the second order. But it ought to be punished as an introduction to crimes, and as furnishing a proof against the character of those who commit it. It is not possible to fortify too strongly the sentiments of re- PfiDTCilPIES OP IKE PENAI CODE. 365 spect for humanity, or to inspire too mucli repugnance against everything that conduces to cruel hahits. This offence ought then, to he punished by branding it with disgrace. It is com- monly the fear of shame which is its cause ; it needs a greater shame to repress it. But at the same time the occasions for punishing it ought to be made very rare, by requiring for a con- viction of it proofs difficult to be collected. The laws against this offence, under pretence of humanity, are a most manifest violation of it. Compare the offence with the punishment. The offence is what is improperly called the death of an infant, who has ceased to be, before knowing what exist- ence is, — a result of a nature not to give the slightest inquietude to the most timid imagination ; and which can cause no regrets but to the very person who, through a sentiment of shame and pity, has refused to prolong a life begun under the auspices of misery. And what is the punishment ? — the barbarous infliction of an ignominious death upon an unhappy mother, whose very offence proves her excessive sensibility ; upon a woman guided by despair, who, in hardening her heart against the softest in- stinct of nature, has harmed no one but herself! She is devoted to infamy because she has dreaded shame too much, and the souls of her surviving friends are poisoned with grief and disgrace ! And if the legislator was himself the first cause of the evil, if he may justly be considered as the real murderer of these innocents, how still more odious does his rigour appear ! It is he alone who, by severity against a weakness well entitled to indulgence, has excited that combat of tenderness and shame, which tears the mother's heart, and makes her the destroyer of her child. CHAPTEE XIII. Cases in whioh there is greater Banger than Alarm. Though there is a general correspondency between danger and ^ alarm, there are cases in which the proportion is not exact ; the danger may be much greater than the alarm. 266 PEnrciPLES op the pewal code. TMs is tte case with, all mixed offences wHcli include a private evil, and at the same time a danger, whence results their eharadter of public offences. It might happen that a prince was robbed by faithless agents, and the public oppressed by subaltern vexations. The accom- plices in these disorders, forming a powerful phalanx, might per- mit nothing but mercenary praises to reach the throne, and truth might be esteemed the greatest of crimes. Timidity, under the mask of prudence, would soon become the leading trait in the national character. If, during this universal abjection, a virtuous citizen, daring to denounce the guUty, should become the victim of his zeal, his destruction would excite little alarm ; his magna- nimity would appear only an act of madness ; and the citizens, promising themselves not to imitate his example, would be un- moved by a misfortune in their power to shun. But alarm thus subsiding gives place to a greater evU : — ^the danger of impunity to all public crimes ; the cessation of all voluntary services to justice ; a profoimd indifference for everything not personal to one's self. It is said that in some of the Italian states, those who have given testimony against robbers or brigands, exposed to the vengeance of their accomplices, are obliged to seek in flight a security which the law does not afford. It is more dangerous to lend aid to justice than to take arms against it ; a witness runs more risks than an assassin. The alarm which results from this state of things is not great, because all can avoid exposure to the evil ; but in proportion as alarm diminishes, danger is augmented. CHAPTER XIV. Grounds of Justifioation. I PEOCEED to speak of some circumstances which, in connection with an offence, operate to take away its injurious quality. We may give to these circumstances the common name of means of justifioation, or, for shortness, justifications. PEINCIPLES OP THE PENAI CODE. 367 General justifications, ■wMoh. apply to nearly all offences, may be reduced to tlie foUowiag heads : — 1st. Consent. 2nd. Eepulsion of a greater evil. 3rd. Medical practice. 4tli. Self-defence. Sth. Political power. 6th. Domestic power. How do these circumstances furnish justifications ? We shall see that sometimes they import proof of the absence of evil ; and sometimes they evince that the evil has been compensated — that is, that a good more than equivalent has resulted from it. The question here relates to the evil of the first order ; for in all these cases there is no evil of the second order. I confine myself to some general observations. 1st. Consent. Meaning the consent of the person who sufiers ■the evU, if there is an evU. What more natural than to presume that there is in fact no evil, or that it is perfectly compensated, where there is such a consent ? "We therefore admit the general rule of the lawyers, that Tie who consents suffers no injure/. This rule is founded upon two very simple propositions : one, that every person is the best judge of his own interest ; the other, that no man will consent to what he thints hurtful to himself This rule admits many exceptions of which the reason is pal- pable; — such as eoercion, fraud, concealment, a consent out of date or revoked, madness, drunkenuess, childhood. 2nd. Repulsion of a greater Evil. — This is the case in which evil is done to prevent a gfeater evil. It is to this ground of justification that we must refer the extreme measures which may become necessary on occasions of contagious diseases, sieges, famines, tempests, shipwrecks. But the more serious a remedy of this nature is, the more evident ought its necessity to be. The welfare of the state has served as a pretext for all crimes. To give validity to this means of justification, three essential points must be established — the certainty of the evil to be avoided ; the absolute inapplioahiUty of 268 PEINCIPLES OF THE PENAI CODE any means less costly; tlie certain efficacy of tte means em- ployed. It is hence tliat the justification of tyrannicide must be derived, were tyrannicide justifiable ; but it is not ; for it is not necessary to assassinate a hated tyrant, it is enough to desert him, and he is lost. James II. was abandoned by everybody, and the revolu- tion was completed without the effusion of blood. Nero himself saw his power overthrown by a simple decree of the senate, and the death he was obliged to inflict with his own hand was a more terrible lesson for tyrants than if it had been dealt by the dagger of a Brutus, Greece boasts its Timoleon ; but we may see in the perpetual convulsions by which she was agitated how iU. this doctrine of tyrannicide accomplished its object. It only served to irritate suspicious tyrants, and to render them ferocious in pro- portion to their cowardice. "When the blow failed the vengeance was frightful. If it succeeded in popular states, factions imme- diately regained all their violence, and the victorious party inflicted all the evils it had feared ; in monarchies, the terrified successor harboured a profound resentment; and if he became oppressive, he disguised his tyranny under the plausible pretext of providing for his own security. It is said that the penetrating eye of SyUa discovered more than a single Marius, in a voluptuous youth yet famous only for his debaucheries. He saw the fires of the most ardent ambition concealed under the most effeminate softness of manners, and he regarded those dissolute pleasures only as a cover to the project of enslaving his country. Would these suspicions have autho- rized him to put Csesar to death? Is it a fact, then, that an assassin only need turn prophet, to justify a murder ? May an impostor, who pretends to a supernatural insight into futurity, immolate all his enemies for crimes not yet committed? Under pretence of avoiding an evil, this would be to produce the greatest of all evils, the annihilation of general security. 3rd. Medical Practice. — This ground of justification is only a subdivision of the preceding. An individual is made to suffer for his own good. A man is seized with an apoplexy. Shall we PEDTCIPLES or THE PENAI CODE. 269 wait for his consent to bleed him ? There cannot be a doubt as to the propriety of using the lancet, because it is very certain that it is not the patient's wish to die. The case is very different if a man, master of his faculties, and able to consent, thinks proper to refuse it. ShaU we give his friends or physicians the right to force an operation which he de- clines ? This would be to substitute a certain evil for a danger almost imaginary. Distrust and terror would watch by the sick man's bed. If a physician, through humanity, goes beyond his right, and the experiment turns out unfavourably, he ought to be ekposed to the rigour of the laws, and his intention, at most, should only serve as an extenuation of his offence. 4th. Self-defence. — This, too, is a modiiieation of the second ground of justification. In fact, it is only the repulsion of a greater evU, since even the death of an unjust aggressor is a less evil for society than the suffering of an innocent person. This right of defence is absolutely necessary. The vigilance of magis- trates can never make up for the vigilance of each individual in his own behalf. The fear of the law can never restrain bad men so effectually as the fear of the sum total of individual resistance. Take away this right, and you become, in so doing, the accom- plice of aU bad men. This ground of justification has its limits. Overt acts must not be employed except to defend the person or the property. To answer a verbal injury by a corporal injury, would not be self- defence ; it would be vengeance. Voluntarily to do an irrepa- rable evU, merely to avoid one which might be repaired, would be passing the legitimate bounds of self-defence. But can we defend nobody but ourselves ? Ought we not to have the right of protecting our fellows against an imjust aggres- sion ? Surely it is a noble movement of the heart, that indig- nation which kindles at the sight of the feeble injured by the strong. It is a noble movement which makes us forget our own danger at the first cry of distress. The law ought to beware how it enfeebles this generous alliance between courage and humanity. Let him rather be honoured and rewarded who performs the ^ 370 PEINCIPLES OF THE PENAL CODE. function of tlie magistrate in favour of the oppressed. It concerns the public safety that every honest man should consider himself • as the natural protector of every other. In this case there is no evil of the second order ; on the contrary, aU the effects of the second order are good. 5th and 6th. Politiealcmd DomestiePower. — The exercise of law- fulpower implies thenecessity of doing evil to repress evil. Lawful power may be divided into political and domestic. The magis- trate and the father, or he who stands in the father's place, cannot maintain their authority, the one in the state, and the other in the family, unless they are armed with coercive means against disobedience. The evil which they inflict is called punishment or chastisement. The whole object of these acts ia the good of the great or little society which they govern ; and it is hardly necessary to say that this exercise of lawful authority is a com- plete ground of justification, since no one would choose to be a magistrate or a father, if he were not secure in the exercise of his power. 271 PART SECOND. POLITICAL KEMEDIES AGAINST THE EVIL OF OFFENCES. CHAPTEE I. Subject of this Part. Aatino considered offences as diseases of the body politic, we are led by analogy to regard as remedies tbe means of prevention or redress. These remedies may be arranged in four classes : — 1st. Preventive Eemedies. 2nd. Suppressive Eemedies. 3rd. Satisfactory Eemedies. 4th. Penal Eemedies, or Punishments. Preventive Eemedies are means which tend to prevent offences. They are of two kinds : direct means, which have an immediate appUcation to such or such an offence in particular; indirect means, which consist in general precautions against an entire class of offences. Siippressive Remedies are means which tend to put a stop to an offence already begun, an offence in progress, but not com- pleted, and so to prevent the evil, or at least a part of it. Satisfactory Remedies consist of reparations or indemnities,' secured to those who have suffered from offences. Penal Remedies or Punishments are also useful ; for after a stop has been put to the evil, after the party injured has been 273 PEINCIPLES OF THE PENAI CODE. iademnified, it still remains to prevent like offences, wtether on the part of the same offender or of others. There are two ways of arriTing at that end ; one to correct the will, the other to take away the physical power. To teike away the inclination to repeat the act, is reformation ; to take away the power, is in- capacitation, A remedy which operates by fear is called a pun- ishment, whether or not it produces a physical incapacity depends upon its nature. The principal end of punishments is to prevent like offences. "What is past is but one act ; the future is infinite. The offence already committed concerns only a single individual; similar offences may affect all. In many cases it is impossible to redress the evil that is done ; but it is always possible to take away the wiU to repeat it ; for however great may be the advantage of the offence, the evil of the punishment may be always made to out- weigh it. These four kinds of remedies sometimes require as many separate operations ; sometimes the same operation suffices for the whole. In this part I shall treat of direct preventive remedies, sup- pressive remedies, and satisfactory remedies ; the third part will treat of punishments ; in the fourth part will be considered the indirect means of preventing offences. CHAPTER II. Direct means of preventing Offences, Beeoeb an offence is committed, it may give warning of its approach in many ways; it passes through a train of prepara- tions which often allow it to be arrested before it reaches its catastrophe. This part of police may be exercised either through functions assigned to all individuals alike, or by special powers intrusted to authorized persons. The powers given to all the citizens for their protection are PEINCIPLES OE THE PENAL c6dE. 373 those vhicli are exercised before justice takes cognizance of the matter, and whicli may be called, on that account, ante-judioial means. Such is the right to oppose open force to the execution of an apprehended offence ; to seize a suspected person ; to guard him; to carry him before a magistrate ; to call in aid; to seques- ter into responsible hands articles believed to be stolen, or those the destruction of which it is desired to prevent ; to summon the bystanders as witnesses ; to require the passers-by to assist in carrying before the magistrates those who are suspected of bad designs. The obligation of lending themselves to this service may be imposed upon aU the citizens, and its fulfilment should be strictly required, as one of the most important duties of society. It wiU even be proper to establish rewards for those who may have aided to prevent an offence, or who have assisted to deliver the guilty iato the hands of justice. Is.it said that these powers may be abused, and that unprin- cipled people may employ them to obtain assistance in an act of mere outrage? This danger is imaginary. The affectation of order and publicity would be quite unsuited to such views, and would too manifestly expose to punishment. There is not much danger in granting rights which cannot be exercised but at the risk of suffering the legal consequences in case of their misap- phcation. To refuse justice the aid which it might receive from these means would be to suffer an irreparable evil, through fear of an evU which carries with it its own redress, Besides those powers which ought to appertain to every citizen, there are others, which should be confined to the magistrate, and which may be very useful in preventing apprehended offences. 1st. Admonition. — This is a simple intimation, given, however, by a judge, warning the suspected individual that he is watched, and recalling him to his duty by a respectable authority. 2nd. Threats. — This is the same means reinforced by a menace of the law. In the first case, it is the persuasive voice of a father; in the second, it is a magistrate whose severe rebuke intimidates. 274 PEINCIPLES OF THE PENAI CODE. 3rd. Exacting a Promise to keep away from a oeriain place.— This means, applicable to tlie prevention of many offences, is particularly so to quarrels, to personal injuries, and to seditious plots. 4th. Partial Banishment. — A prohibition to the suspected person to go into the presence of the threatened party ; to be found in the neighbourhood of his house ; or in any other place adapted to become the theatre of the apprehended offence. .5th. Security. — The obligation to furnish sureties, who are, bound to forfeit a certain sum in case the required limits be passed over. 6th. The establishment of guards or watchmen for the protec- tion of the person or property in danger. 7th. Seizure of arms or other implements designed to assist ia the execution of the apprehended offence. Besides these general means, there are others which may be specially applied to certain offences ; but I shall not enter here into these details of police and administration. The choice of these means, the occasion and the manner of applying them, depend upon a great number of circumstances ; they are besides sufficiently simple, and almost always indicated by the nature of the case. If the question relates to a defamatory writing, it should be seized before publication ; if it relates to things to be eaten or drunk, or to medicines of a dangerous nature, they ought to be destroyed before being put to use. Judicial visits and iaspeotionB . are proper means to prevent frauds, clandestine acts, and offences of contraband. This kind of eases seldom admits of precise rules. Something must be left to the discretion of public officers and judges. But the legislator ought to give such iastruotions as will prevent arbitrary abuses. These instructions should rest upon the following maxims. The more rigorous is the means, the more scrupulous we ought to be as to its use. Greater liberties may be taken in proportion to the magnitude of the apprehended offence, and its apparent probability ; in proportion as the delinquent appears more or less PEEWCIPLES OP IHE TENAl CODE. dangerous, and as he has more means of accomplishing his evil intentions. There is one limit which ought never to be passed. Never use a preventive means of a nature to do more evU than the offence to be prevented. CHAPTER III. Of Chronic Offences. BEroEE treating of suppressive remedies, that is, of the means of stopping the progress of offences, vre must first discover what are the offences whose progress can be stopped ; for there are some which do not admit of this measure : and those which do, do not all admit it in the same manner. The capability of being stopped supposes that the offence has a sufficient duration to admit the intervention of justice ; but all offences do not have such duration. Some have a transient, others a permanent effect. Homicide and violation cannot be repaired. Theft may last only a moment, or if the thing stolen has been consumed or destroyed, it may last for ever. It is necessary to distinguish the circumstances according to which offences have a greater or less duration, because they have an influence on the suppressive means which may be applied to them. 1st. An offence acquires duration by the simple continuation of an act capable of ceasing at each instant without ceasing to have been an offence. The detention of a person, the abstraction of a thing, are offences of this kind. 2nd. Wherever the design of committing an offence is regarded as an offence in itself, it is clear that the continuance of the offence will be co-extensive with the continuance of the design. This class of chronic offences is a sub-division of the former. 3rd. The greater part of negative offences, those which consist in omissions, have a certain duration. Not to provide for the support of a child, not to pay one's debts, not to appear at the summons of a court, not to make known one's accomplices, not to T 3 376 PEINCIPLES OF THE PENAX CODE. put a person in tlie enjoyment of a right that belongs to him — all these appertain to this class. 4th. There are material works of which the continuance is a prolonged offence, such as a manufacture injurious to the health of a neighbourhood, a building which obstructs a road, a dam which interrupts the course of a river. 5th. Productions of the mind, through the intervention of printing, may have the same effect. Such are Kbels, pretended histories, alarming prophecies, obscene pictures — in one word, everything which presents to the citizens, under the durable signs of language, ideas which ought not to be presented. 6th. A series of repeated actions may have in their coUective- ness a character of unity, in virtue of which he who commits them is said to have contracted a habit. Such are the fabrication of false money, forbidden processes in a manufacture, and contraband in general. 7th. There is a degree of duration in certain offences whicli, though distinct in themselves, yet, taken together, assume a cha- racter of unity, because one is the occasion of the other. A man commits a theft iu a garden — he beats the owner who hastens to oppose him — he pursues him into his house, insults his family, spoils his furniture, kills a favourite dog, and continues his depre- dations. Thus is formed an indefinite series of offences, the duration of which may give time for the intervention of justice. 8th. There is a certain duration in the proceedings of a number of offenders who, with or without consent, pursue the same object. Thus from a confused medley of acts of destruction, threats, verbal injuries, personal injuries, insulting cries, and provoking shouts, is formed that sad and fearful composition called a tiunult, a rising, an insurrection — forerunners of rebellion and civU war. Chronic offences are apt to lead to a catastrophe. A projected offence ends in an executed offence. Simple corporal injuries have a tendency towards irreparable corporal injuries and homi- cide. There is no offence of which imprisonment may not be the forerunner. It may be used for getting rid of a marriage' tie which proves to be inconvenient, or to carry out a scheme of PRINCIPLES OF THE PENAL CODE. 377 seduction ; to suppress testimony, to extort a secret, to prevent a claim, of property ; to force tlie prisoner to aid in some criminal enterprise — in one word, imprisonment may always have some particular catastrophe according to the object of the offender. In the course of a criminal undertaking the end may change with the means. A thief surprised in the act, through fear of punishment, or enraged by the loss of his plunder, may become an assassin. The foresight of the magistrate ought to picture in every case the probable catastrophe of the offence, and prevent it by a prompt and well-directed interference. In determining the punishment, reference must be had to the intentions of the offender; in applying preventive and suppressive remedies, we must take into account all the probable consequences, both those intended and those which the offender overlooks or does not foresee. CHAPTEE IV. Siippresswe Memedies for Chronic Offences, The different kinds of chronic offences demand different suppressive remedies. These suppressive means are the same as the preven- tive means of which we have given a catalogue. The difference is in the time and the application. There are cases in which the preventive means to be used cor- respond so visibly to the nature of the offence that they scarcely need to be indicated. It is very plain that wrongful imprison- ment demands release, and that theft requires restitution. The only difficulty is to know where the person or thing detained can be found. There are other offences, such as seditious meetings, and some negative offences, particularly the non-payment of debts, which require more complicated means to suppress them. We shall have occasion to examine these cases under their proper head. The evil of dangerous writings is an evil very difficult to sup- 278 PBiNcaiLEs ov the penal code. press. They lie hid, they multiply, they revive with more vigom' after the most notable attempts to destroy them. When treating of indirect means of prevention, we shall show how this evil may be most effectually met. The magistrate must be allowed more latitude ia the employ- ment of suppressive than in the use of preventive means. The reason is plain. When the question is to suppress, there is an actual offence, and consequently a punishment fixed for it. Too much is not risked to stop it, provided we do not go further than we must go to punish it. But while the point merely is to pre- vent an offence, we cannot be too scrupulous how we act. Per- haps no such offence is intended ; perhaps we are deceived in the person to whom we attribute the intention ; perhaps the person suspected is acting in good faith, and instead of committing the offence he wiU stop of himself. Each, perhaps, demands a pro- cedure milder and more moderate in proportion as the apprehended offence is more problematical. The offences of illegal detention and deportation are of such a ■ nature as to demand some particular means for preventing and suppressing them. These means may be reduced to the following precautions : — 1st. To require a register of the houses of aU kinds in which individuals are detained in spite of themselves, such as prisons, hospitals for the insane or for idiots, and private institutions for persons thus disordered. 3nd. To have a second register containing the causes of deten- tion, and not to permit a person of unsound mind to be detained tUl after a juridical consultation of physicians. These two registers, kept in the tribunals of each district, should be publicly exposed, or at least left open to be consulted by everybody. 3rd. To establish some signal, such as shall be as much as possible in the power of a person forcibly carried away, which shall be a sufficient authority to any passer-by to call the ravishers to account, to accompany them if they declare an intention to carry the prisoner before a magistrate, and to compel them to go if they evince a different intention. PEINCIPLES OF THE PJSlfAL CODE. 379 4t]i. Granting to all the rigtt to obtain authority to search every house in -which they suspect a person to be forcibly •'detained. CHAPTEE V. Observations wpon Martial Law. Iif England, in the case of seditious disturbances, it is not the fashion to begin by a military assassination. Warning precedes the punishment ; martial law is proclaimed, and the soldier can- not act till the magistrate has spoken. The intention of this rule is excellent; but -what shall -we say of its execution ? The magistrate is obliged to go into the midst of the tumult ; he must pronounce a long dra-wling formula, -which nobody understands ; and bad luck to those -who are on the spot an hour after ! — they are declared guilty of a capital offence. This statute, dangerous for the innocent and difficult to be executed against the guilty, is a mixture of -weakness and violence. In such a moment of disorder, the magistrate ought to announce his presfence by some extraordinary signal. The red flag, so famous in the French revolution, had a great effect upon the imagination. In the midst of cries, the ordinary means of lan- guage do not answer. The multitude cannot hear ; it is necessary to speak to their eyes. An harangue supposes attention and sUence ; but visible signs have a rapid and powerful operation. They say at once all they have to say ; they have but one sense, and that unequivocal ; a studied disturbance, a concerted uproar, cannot prevent their effect. Besides, -words lose their influence through a multitude of un- foreseen circumstances. If the orator is personally odious, from his mouth even the language of justice is hateful. If his cha- racter, his air, or the style of his oratory, have in them anything ridiculous, this ridicule extends to his official acts. Here is an additional reason for speaking to the eyes by respectable symbols, not subject to like Caprices. 380 PEINCrPLES OF THE PENAL CODE. But, as it may be necessary to join words to signs, a speaking trumpet is an essential accompaniment. The singularity even of that iustrument would give to the orders of justice more dignity and eolat ; it -would banish every idea of familiar conversation, and convey the notion of not hearing a rdan, the mere individual, magistrate, but the privileged minister, the herald of the law. This means of being heard afar has long been used at sea. There, distance and the noise of winds and waves early made evident the insufficiency of the human voice. The poets have often compared a tumultuous people to a stormy ocean. Does this analogy belong exclusively to the agreeable arts ? It would be of much more importance in the hands of justice. The orders should be in few words ; nothing which is of the nature of ordinary discourse or discussion. Let it not be ly command of the Icing. Speak in the name of justice. The chief magistrate may be an object of hatred, just or unjust ; perhaps, that very hatred is the cause of the tumult. To call up his image • would be to inflame passions instead of allaying them. If not odious already, such a procedure would expose him to become so. Every favour, everything which bears the character of pure beneficence, ought to be presented as the personal act of the father of his people. All rigorous proceedings, — those of severe benevolence, — ought to be attributed to nobody. Let the hand that acts be veiled. Throw the responsibility upon some creature of reason, some animated abstraction ; such as Justiee, daughter -xf necessity and mother of peace, whom men ought to fear, but whom they cannot hate, and who ought always to possess their supremest homage. CHAPTEE VI. Watwre of Satisfaction. Satisfaction is a good received, iu consideration of a damage suffered. If the question relate to an offence, satisfaction is an PEINCIPLES OF THE PENAL CODE. 281 equivalent given to the party injured on account of tlie damage lie has sustained. Satisfaction is complete, whenever the good conferred is equal to the amount of evil suffered ; so that if the injury should he ifepeated and the same reparation should follow, the event would appear iadifferent to the injured party. If something is wanting to raise the value of the good to an equality with the evil, the satisfaction is partial and imperfect. Satisfaction has two aspects or two branches, the past and the future. Satisfaction for the past is what is called indemnity ; satisfaction for the future consists in putting a stop to the evil of the offence. If the evU ceases of itself, nature has performed the functions of justice, and in this respect the tribunals have nothing more to do. If a sum of money has been stolen, from the moment it is restored to the owner the satisfaction for the future is complete. It only remains to indemnify him for the past, for the temporary loss which he experienced while the offence continued. But if the question is of a thing spoiled or destroyed, satisfac- tion for the future can only take place by giving to the party in- jured a similar or equivalent article. Satisfaction for the past would consist in an indemnity for the temporary privation. CHAPTEK VII. Reasons on which the necessity of Satisfaction is founded. Sahspaction is necessary to put a stop to the evil of the first order, to re-estahHsh things in the state in which they were before the offence was committed, and to restore the sufferer to the condition in which he would have been if the law had not been violated. Satisfaction is yet more necessary to put a stop to the evil of the second order. Punishment alone is not sufficient for that purpose. It tends, without doubt, to diminish the number of offenders ; hut this number, though diminished, can never be con- sidered as nothing. Examples of the commission of offences, as 282 PEiNcrPLES OP the penax code. they are more or less known, excite more or less of appretension. Every observer sees in them the chance of suffering in his turn. If it be desired to dissipate this sentiment of fear, it is necessary that the offence should be as constantly followed by satisfaction as by punishment. If it were followed by punishment without satisfaction, as many offenders as were punished, so many proofs there would be of the inefScacy of punishment ; and consequently so much alarm weighing upon society. But here needs to be made an essential observation. To take i/'' away the alarm, it is enough that the satisfaction is complete in the eyes of observers, although not complete to the persons in- terested. How can we determine whether the satisfaction is com- plete for him who receives it ? The balance, in the hands of passion, would always incline to the side of interest ; to the greedy it would be impossible to give enough ; the vindictive never would think his adversary sufficiently humbled. "We must suppose, then, an impartial observer, and regard that satisfactions'! as sufficient which he would estimate as equivalent to the evil endured. CHAPTER VIII. The different Kinds of Satisfaction. We may distinguish six kinds : — 1st. Pecuniary Satisfaction. — As money is a pledge for the greater part of pleasures, it is an efficacious compensation for a multitude of evils. But it is not always in the offender's power to pay it, nor always proper that the offended party should receive it. To offer a man, whose honour has been outraged, a compen- sation in money for the insult is a new affront. 3nd. Restitution in Nature. — This satisfaction consists either in returning the thing taken away or in giving a thing similar or equivalent to that taken away or destroyed. 3rd. Attestatory Satisfaction. — If the evil results from a false- hood, a statement false in point of fact, satisfaction is complete by a legal attestation of the truth. PKETCIPLES or THE PElfAL CODE. 383 4tli. Honorary Satisfaction. — An operation which, has for its end either to maintain or to re-estahlish in favour of an individual a portion of honour, of which the offence had deprived him, or threatened to deprive him. 5th. Vindictive Satisfaction. — Everything which implies a manifest pain to the offender implies a pleasure of vengeance to the party injured. 6th. Substitutive Satisfaction, or satisfaction at the expense of a third party; when a person not a. party to the offence is held responsible in his fortune for the person who committed it. To determine our choice as to the kind of satisfaction, three things must be considered, — the ease of furnishing it ; the nature of the evil to be compensated ; and the probable sentiments of the party injured. These different heads will presently be taken up, and more fully considered. CHAPTEE IX. ITie Quantity of Satisfaction. As much as the satisfaction fails of being complete, to the same degree the evil remains without a remedy. "We may fix, by two rules, what is necessary to prevent a deficit in this respect. Ist. Follow the evil of the offence in all its ramifications, ani y among all /parties to it, and, proportion the satisfaction accordingly. If the question relates to irreparable corporal injuries, two things must be considered ; a means of enjoyment and a means of subsistence taken away for ever. There cannot be a compensa- tion of the same nature, but there ought to be applied to the evil a perpetual periodical remedy. If the question relates to a homicide, it is proper to consider the loss experienced by the heirs of the deceased, and to make it up by a gratification paid at once, or periodically for a longer or shorter term. If the question relates to an offence against property, we shall 284 PEIJTCIPLES OP THE PENAl CODE. see, under tie head of Pecuniary Satisfaction, what is required to put the reparation on a level with the offence. 2nd. In doubtful oases, the halanoe ought to incline in his f mow who has suffered the injury, rather than in favour of him who com- mitted it. All accidents ought to he at the risk of the offender. AH satis- faction ought rather to he superahundant than defective. If superabundant, the excess being in the nature of a punishment, cannot but serve to prevent like offences. If defective, that deficit always leaves a certain degree of alarm ; and in vindictive offences, aU the unsatisfied evil is a matter of triumph to the offender. Laws are everywhere very imperfect upon this point. On the side of punishments there has been little fear of excess ; on the side of satisfaction, a deficit has caused little concern. Punish- ment, which, if it goes beyond the limit of necessity, is a pure evil, has been scattered with a prodigal hand. Satisfaction, which is purely a good, has been dealt out with the most evident parsimony. CHAPTEE X. The certainty of Satisfaction . Ceetaintt of satisfaction is an essential branch of security ; and in proportion as this certainty is wanting, in the same propor- tion security is diminished. "What shall be thought of those laws which, to the natural causes of uncertainty, add other factitious and voluntary causes? To obviate this defect the following rules are necessary : — 1st. The alligation to satisfy ought not to he extinguished ly the death of the injured party. The satisfaction due to the deceased is due to his heirs. To make the right of receiving satisfaction dependent upon the life of an individual, is to take away from that right a part of its value. It is like reducing a perpetual annuity into an PErsrciPi,Es OP the PENiii code. 285 annuity for life. Satisfaction is not to be obtained except by a process wHcb may last a long time. If tbe claimant is an aged or infirm person, the value of his right fluctuates with his health; if the claimant is on his death-bed, his right is worth nothing. Moreover, if you diminish on one side the certainty of satis- faction, you increase on the other the hope of impunity. Tou show in perspective to the offender a time when he may hope quietly to enjoy the fruit of his offence. Tou give him a motive to retard, by a thousand impediments, the judgment of the court, and even to hasten the death of the injured party. At aU events you put out of the protection of the law those persons who have the greatest need of it, — the dying and the sick. It is true that, although the obligation of satisfaction be extin- guished by the death of the injured party, the offender may still be subjected to another punishment ; but what other punishment can be so fit and proper ? 2nd. The right of the injwei, iparty ought not to he extinguished by the death of the offender, the author of the wrong. The satis- faction due from him is d/ue from his heirs. To determine otherwise would be to diminish the value of the right, and to encourage offences. A man conscious that death was near, might commit an injustice with no other object except to advance the fortune of his children, — a case more common than is generally supposed. Is it said that if satisfaction be given to the injured party, after the death of the delinquent, it is only by an equivalent suffering imposed upon his heirs ? 'But there is a great differ- ence between the two cases. The expectation of the injured party is a clear, precise, decided expectation, firm in proportion to his confldence in the protection of the laws. The expectation of the heir is but a vague hope. The object of it is not the entire succession, but a certain, unknown, net produce, after aU lawful deductions. That which the deceased might have spent in plea- sures he has spent upon injustice. 286 PEINOIPLES 01' THE PENAL CODE. CHAPTEE XI. Peouniary Satisfaction. Theee are cases in wHch pecuniary satisfai3tion is demanded by the very nature of the offence ; there are other cases in which it is the only satisfaction that circumstances permit. It should be employed by preference, upon occasions where it promises to have the greatest effect. Pecuniary satisfaction is at its highest point of propriety ia cases where the damage experienced by the injured party, and the advantage obtained by the delinquent, are alike of a pecuniary nature ; as in theft, peculation, and extortion. The remedy and the evil are homogeneous ; the compensation may be exactly measured by the loss, and the punishment by the profit of the offence. This kind of satisfaction is not so well founded when there is a pecuniary loss upon one side, without any pecuniary profit upon the other ; as in the case of offences committed through hostility, negligence, or accident. It has still less foundation in those cases in which it is not possible to value in money either the evil of the party injured, or the advantage of the offender ; as in case of injuries to honour. The more a means of satisfaction is incommeasurable with the injury, the more a means of punishment is incommeasurable with the advantage of the offence, the more likely are both to fail of their end. The old Eoman law, which appointed a fixed sum of money as the damages for a blow, was no protection to honour^ The repa- ration having no common measure with the outrage, its effect was precarious, whether as a, satisfaction or a punishment. There is still in existence an English law, which is a true relic of barbarous times. A daughter is considered as the servant of her father ; if she is seduced, the father cannot obtain any other satisfaction than a sum of money, the price of the domestic ser- vices which he is supposed to have lost by the pregnancy of his daughter. PBXfTCIPLES OF THE PENAl CODE, 287 As respects injuries to the person, a pecuniary indemnity may be proper or not, according to the respective wealth of the parties. In regulating a pecuniary satisfaction, the two branches of the past and the future must not be forgotten. Satisfaction for the future consists merely in putting a stop to the evU ; satisfaction for the past consists in an indemnity for the wrong endured. To receive a sum due, is a satisfaction for the future ; to receive the accrued interest upon that sum, is a satisfaction for the past. Interest ought to begin from the happening of the evil to be compensated; from the moment, for example, when the debt became due ; when the thing in question was taken, damaged, or dtestroyed ; or when the service to which one had a right was refused. This interest, granted as a satisfaction, ought to be higher than the ordinary rate of commerce ; at least, whenever there is a suspicion of bad faith. Such an excess is very necessary. If the interest did not exceed the customary rate, there would be cases when the satisfaction would be incomplete, and other cases in which a profit would result to the offender, — the pecuniary profit, for example, of obtaining a forced loan at the ordinary interest ; a pleasure of vengeance or hostility, if the offender has wished to keep the injured party in need, and to enjoy his distress. For the same reason, compound interest should be allowed ; that is, every time a pajrment of interest became due, that interest should be added to the principal, and should become a part of it. The capitalist, at each payment, might have converted his interest into capital, or have drawn an equivalent advantage from it. If this part of the damage is left without satisfaction, there will be a loss to the innocent party, and a gain to the delinquent. The expense of satisfaction ought to be shared among the ofienders in proportion to their wealth, or, according to circum- stances, in proportion to their respective degrees of criminality. Por, in fact, the obligation to satisfy is a punishment ; and it would be in the highest degree unequal if co-delinquents of unequal wealth were mulcted in the same sum. \y 288 PEINCIPLES OF THE PENAL CODE. CHAPTER XII. Restitution in Nature. Restitittion in nature is cMefly important in the case of property ■wMoh. possesses a value of affection.* But it is due in every case. Tlie law ought to assure me everything which is mine, without forcing me to accept equiva- lents, even though I have no particular ohjection to them. "With- out restitution in nature, security is incomplete. How can we be secure as to the whole, when we are secure of nothing ia par- ticular ? A thing taken away, either in good or had faith, may have passed into the hands of a stranger who holds it in good faith. Shall it he restored to the former owner, or be kept by the new one ? The rule is simple. The thing ought to remain with tie person who may he supposed to have the greatest affection for it. This superior degree of affection may he easily estimated, from the relations of the two parties to the thing in question, from the time they have possessed it, from the services they have drawn from it, from the cares and expense it has cost them. These indications commonly unite in favour of the original owner.f The preference is also due to him in doubtful cases, and for these reasons : — 1st. The new owner may have been an accom- plice in the fraudulent acquisition, though it may be impossible * Such aa immoveablea in general, also family relioa, portraits, the handiwork of a dear friend, domestic animals, antiquities, curiosities, pictures, manuscripts, instruments of music, — in fine, everything wMoh is unique, or which appears to be so. + When the thing or animal in question is of the kind which produces its like, we may ascertain, by the same considerations, on which side is likely to be the superiority of affection as respects its fruits or oflFspring, aa wine of a particular vineyard, the colt of a favourite horse, &o. It may well be that the claims of the former owner are not so strong in thia oaae aa in the other. The new poasessor is only owner at second hand of the thing or animal that produces, but he is the first owner of the things produced. PEINCIPLES OP THE PEIfAI. CODE. 289 to get proofs of it. This suspicion is not unjust ; formed by the law and not by man, bearing upon the class and not upon the indiridual, it does not impeach anybody' s honour. 2nd. If the new- owner was not an accomplice, he may haye been guilty of negli- gence or rashness, either by omitting ordinary precautions to verify the title of the seller, or by putting an undue confidence in proofs of little weight. 3rd. "When the question relates to grave offences, such as robbery, the preference ought to be given to the former possessor, in order to strengthen the motives which induce him to prosecute. 4th. If the spoliation has been an act of malice, to leave the thing in the possession of anybody except the injxired party, would be to leave the offender a gainer by the offence. A purchase of such articles at a low price ought always to be followed by restitution at the price paid. If this circumstance does not prove the purchaser to be an accomplice, it always carries with it a strong presumption of bad faith. The purchaser caimot have overlooked the probability of a wrongful possession on the part of the seller ; for it is the danger of carrying them to an open market which causes the low price of stolen goods. When the possessor, though esteemed innocent, is obliged, on account of the bad faith of the seller, to restore the thing to the original owner, there ought to be awarded to him a pecuniary eq[uivalent, to be fixed by the magistrate. The expenses of preservation, and, for a stronger reason, the costs of improvements, and other extraordinary outlays, ought to be liberally allowed to him who restores the property. This is not only a means of favouring general wealth, it is for the inte- rest even of the original proprietor, though the indemnity be paid at his expense. According as this indemnity is granted or refused, the improvement of the thing is favoured or prevented. Neither the original owner nor the subsequent possessor ought to gain at the expense of the other. The losing party ought to be allowed a claim of indemnity, first against the offender, and in his default, upon the subsidiaiy fund of which we shall pret- sently speak. 290 PEINCIPLES OE THE PENAL CODE, When an identical restitution is impossible, there ought to he suh- stituted for it, as far as may be, the restitution of a similar thing. Suppose two rare medals of the same coinage. The owner of one of them has seized upon the other, and spoiled or lost it, by negligence or design. In such a case the best satisfaction is to give Ms medal to the injured party. In offences of this kind pecuniary satisfaction is liable to prove insufficient or useless. A value of affection is seldom appre- ciated by third persons. It needs a very enlightened benevo- lence, and philosophy very uncommon, to sympathize with tastes different from our own. The Dutch florist, who sells tulip bulbs for their weight in gold, laughs at the antiquary who pays a great price for a rusty lamp.* Legislators and judges have too often thought like the vulgar. They have applied gross rules to cases which required a nice dis- cernment. There are cases in which the offer of money is not a satisfaction, but an insult. Shall a lover take money as the price of his mistress's portrait, of which a rival has robbed him? Mere restitution in nature leaves a deficiency of satisfaction proportioned to the amount of enjoyment lost during the con- tinuance of the offence. An example will show how this amomit is to be estimated. Suppose a statue -UlegalLy taken away. This statue put up at auction would have brought a hundred pounds sterling, according to the estimate of experts. A year elapses * Some years eiiioe a canary-bird was the subject of a lawsuit before one of the ParKaments of France. A journalist, who gave an aooount of it, amused himself at the expense of the parties, and regarded the whole affair as very ridiculous. I cannot agree with him. Is it not the imagination which gives a value to the objects esteemed most precious ? As laws are made only out of deference to the universal sentiments of men, can they show too much anxiety to guard everything which makes a part of human happiness ? Should they not acknowledge and protect the sensibility which attaches us to creatures we have raised and familiarized, and who in their turn are attached to us ? This lawsuit, 60 frivolous in the eyes of the journalist, was but too serious a matter, since one of the parties had sacrificed to it, to say nothing of mpney, his probity and his honour. Can an object rated so highly be considered a trifle ? PEINCIPLES OP THE PENAL CODE, 291 between the robbery and the restitution ; interest is at five per cent. Put down under the head of satisfaction for the past, ordi- nary interest, five pounds ; additional for penal interest {see oh. xi. ), say two pounds ten shillings ; total, seven pounds ten shiUings. In fixing the damages we must not forget the deterioration, whether accidental or necessary, which the thing may have Tmdergone in the interval between the commission of the offence and the restitution. The statue would not have deteriorated, — at least, not necessarily ; but a horse of the same price must of course have diminished in value. A collection of tables of natural deterioration, year by year, according to the nature of the several articles, is one of the things which the library of justice requires. CHAPTEE XIII. Attestatory Satisfaction, This means of satisfaction is particularly adapted to offences of falsehood whence there is liable to result an opinion prejudicial to an individual ; but the weight of which, its extent, and even its existence, cannot be established by evidence. While the error exists, it is a constant source of actual or probable evil ; there is but one means of arresting it, and that is to make its falsehood evident. This is the proper place for enumerating the principal offences of falsehood. Ist. Simple Mental Irywries, consisting in the spread of False Alarm.— Foi example, stories of apparitions, ghosts, vampires, sorcerers, diabolical possessions ; false reports of a nature to strike some individual with fear or sadness, pretended deaths ; stories of the had conduct of near relations, of conjugal infidelities, of losses of property; falsehoods adapted to alarm a class more or less numerous, as reports of contagious diseases, invasions, conspiracies, conflagrations, &c. 2iid, OJences against Eeputation, of which there are many kmds : V 2 293 PEINCIPIES OF THE PENAL CODE. defamation by the positive statement of particular injurious facts ; diminution of reputation, ■wMcli consists in weakening ■wh.at cannot be destroyed — concealing from tbe public, for example, a circum- stance whicli ■would add to tbe iclat of a celebrated action ; intercep- tion of reputation, wHcb consists in preventing the performance of an action honourable to the individual in question, or in taking from him the occasion of distinguishing himself by causing an enter- prise to be regarded as impossible or finished abeady ; uswpation of reputation, of which aU plagiarisms, whether of authors or artists, are examples. 3rd. Fraudulent Acquisition. — ^Examples : false reports to affect the rate of exchange or the price of stocks. 4th. Distwhance in the Er^'oyment of Domestic and Cvoil Rights. — Examples : denying to a husband, a wife, or a child their legal titles to that condition ; or setting up a false claim of that nature ; or aid- ing in a like falsity in regard to any privilege or civil condition. 5th. Preventing Acquisition. — Preventing a man from buying or selling by false reports as to the value of the thing or his right to dispose of it. Preventing a person from acquiring a certain condition, such as marriage, by false reports which make him postpone it or give it over. In all these cases the arm of justice is powerless ; forcible means are nuU or imperfect. The only efficacious remedy is an authentic declaration which destroys the falsehood. To dissipate error, to publish the truth-— how respectable a function, how worthy of the highest tribunals ! "What should be the form of attestatory satisfaction ? It may vary with the means of publicity ; it may consist in printing and publishing the judgment at the expense of the offender, in hand- bills distributed under the direction of the injured party, or pub- lications in the national and foreign newspapers. The idea of this satisfaction, so simple and so useful, is drawn from French jurisprudence. When a man had been calumniated, the parliaments almost always ordered that the sentence which re-established his reputation should be printed and circulated at the expense of the calumniator. PEINCIPIES or THE PENAL CODE. 293 But why force the offender to declare that he has been guilty of false charges, and to acknowledge publicly the honour of the party interested ? This form is objectionable in several respects. It is wrong to compel a man to the expression of certain senti- ments which perhaps he does not entertain, and to risk the judicial command of a falsehood. It is wrong to enfeeble the reparation by an act of constraint ; for what does a compulsory retraction prove, except the weakness or the fear of him who utters it ? The offender may be the organ of his own condemnation, if it be thought fit so to augment the punishment ; but he may be so without swerving from the exactest truth, provided the formula prescribed to him includes only the opinion of the court as being the opinion of the court, not his own. " The court has decided that I have alleged a falsehood ; the court has adjudged that I have departed from the character of an honest man ; the court are of opinion that in all this business my opponent has conducted himself hke a man of honour." This is all that concerns the public or the injured party. This is triumph enough for truth, humilia- tion enough tor the offender. "What is gained by forcing him to say, " I have alleged a falsehood ; I have departed from the cha- racter of an honest man ; my opponent has comported like a man of honour?" This declaration, stronger than the former in ap- pearance, is much less so in reality. The fear which dictates such avowals does not change the actual sentiments of the speaker ; and when the mouth pronounces them before a numerous audience, all feel and understand that the heart makes no assent. Where the question is of a fact, the court is less likely to be deceived ; and a direct avowal of falsehood, exacted in his own name from the guilty party, will almost always be conformable to his intimate opinion ; but when the question relates to an opinion — to wit, that of the offender — a disavowal which is commanded will almost always be contrary to his interior conviction. In such contests impartial people wUl condemn an individual ten. times for once that he condemns himself. Even if he is oahn enough to give himself up to reflection, the 394 PEEsrcrpiES of the penal cobe. triumph of his opponent is before his eyes, he is himself the instrument of it, and the irritation of wounded pride must increase his preiudices. He may have heen deceived, and you compel him to accuse himself of falsehood; you place him in a cruel position, ■where, the honester he is, the more he will suffer — ^that is, he wiU be more severely punished in proportion as he deserves it less. How many scoundrels by the decision of a court would make themselves be declared men of honour and probity by the very persons who best knew the contrary! Besides, what signiflee such a general declaration ? Because a particular imputation is false or doubtful, does it follow that a man's character is above all imputation ? Because a person has been once slandered, is his reputation therefore above all blame ? Let one of these patents of honour be once granted to a man in bad estimation, and at once a contradiction appears between public opinion and the sentence of the judges ; their authority is weakened, and they are no longer recurred to for a remedy which, by being badly adminis- tered, has lost its eflcacy. With respect to promisesless reserve is necessary. It is enough if the engagement includes nothing contrary to honour or to pro- , bity. For example, a promise ought not to be extorted from a man to serve against his country or his party ; but a promise not to fight may be extorted, because such an undertaking on his part produces no loss to his party or his country ; for he would not have been able to serve them if, instead of being set at liberty upon Ms promise, he had been put to death or kept in irons. CHAPTER XIV. Honorary Satisfaction. We have seen what remedy can be provided for those offences against reputation of which falsehood is the instrument. But there are others more dangerous; hatred has surer means of striking a deadly blow at honour. It does not always lurk under a timid calumny ; it makes an open attack; not, however. PEIWCIPLES OF THE PENAi CODE. 295 by those violent means ■wMoh. put tte person in danger. Humi- liation is its end. An act, the least painful in itself, is often the most so in its consequences ; a greater evU to the person -would be a less injury to the honour ; for when ve would make a man an object of contempt, we should avoid exciting in his favour a sentiment of pity which will produce an antipathy against his adversary. Hatred has exhausted sU its refinements upon this kind of offences. They must be opposed by those particular remedies to which we give the name of honorary satisfcotion. To perceive the necessity of this course, it is necessary to examine the nature and tendency of these offences ; the causes of their importance, the remedy hitherto applied to them by the usage of duelling, and the imperfection of that remedy. These inquiries, which relate to all that is most delicate in the human heart, have been almost entirely neglected by those who have made laws ; and yet they are the first foundation of all good legis- lation upon the subject of honour. In the actual state of manners among the most civilized nations, the ordinary and natural effect of these offences is to take from the offended person a, more or less considerable portion of his honour ; that is, he no longer enjoys the same esteem among his fellows ; he loses a proportional part of the pleasures, services, and good offices of every kind, which are the fruits of that esteem; and he finds himself exposed to the disagreeable consequences of their contempt. H^ow, as the evil, at least the essential part of it, consists in this change in the sentiments of men it is they who ought to be considered as its immediate authors. The nominal offender has infiicted but a trifling wound, which, left to itself, would soon close up. It is other men who pour a poison into it, which makes it dangerous, and often incurable. At the first view, the rigour of public opinion against an insulted person seems a piece of revolting injustice. Does a- man stronger or more daring abuse his superiority to maltreat, in a certain manner, a person whose feebleness ought to be his protection? All the world, as if by a concerted movement, 396 PEINCIPIES OF THE PENAL COBE. instead of being angry witt the oppressor, arrange themselves upon his side, and heap upon his victim a succession of cowardly sarcasms and neglects, often more bitter than death itself. At the signal of some worthless wretch, the public eagerly dashes upon the innocent object of his malice, like a ferocious dog, which only -waits his master's order. Thus it is that a scoundrel, who desires to inflict upon some worthy man the torments of disgrace, employs those who are called men of the world, men of honour, as the executioners of his tyrannical injustice ; and, as the contempt with which the injury is attended is in proportion to the injury itself, this domination of ruffians is the more inex- cusable, as its abuses are the more atrocious. Whether an insult be deserved or not, is a question which nobody deigns to ask ; deserved or not, it furnishes a triumph not only to its insolent author, but to everybody else who chooses to assist in aggravating it. People take honour to themselveB for trading on the fallen ; an affront received separates a man from his equals ; and, like a social excommunication, renders him impure in their eyes. Thus the real evil — the ignominy — is more the work of other men than of the first offender ; he has but pointed out the game, they have torn it to pieces ; he orders the punishment, they are the executioners. For example, let a man go so far as publicly to spit in another's face. In itself, what is this evil ? — a drop of water, forgotten as soon as felt. But this drop of water turns into a corrosive poison which torments the sufferer through his whole life. What works the change ? Public opinion, that opinion which distributes at pleasure honour and shame. The cruel enemy who inflicted it knew well that this affront would be the forerunner and the signal for a torrent of contempt. A brute, a vile wretch, can at pleasure dishonour a virtuous man ! He can fill with chagrin and distress the termination of the most respectable career ! And how does he enjoy this fatal power ? He enjoys it, because an irresistible corruption has sub- jugated the first and the purest of tribunals, that of the popiflar sanction. In consequence of this deplorable state of things, all PEHrCrPLES OP THE PENAL CODE. 397 the citizens depend individually for their honour upon the worst man among them, and are collectively subject to his orders, to execute his decrees of proscription against each individual in particular. Such is the charge which may be brought against public opiaion ; and these imputations are not without foundation. Men, admirers of power, are often guilty of injustice towards the feeble ; but when we probe to the bottom the effects of this kind of offences, we perceive that they produce an evU independently of opinion, and that the sentiments of the public upon affi-onts received and endured, are not in general so contrary to reason as at first sight they appear to be ; I say in general, because there are a great number of cases in which pubHc opinion is quite with- out excuse. To perceive all the evil which may result from these offences, it is necessary to put all remedies out of view ; it is necessary to suppose there are none. Upon this supposition, these offences may be repeated at will ; an unlimited career is opened to inso- lence ; the person insulted to-day may be insulted to-morrow, the next day, every day, and every hour ; each new affi-ont facilitates another, and renders more probable a succession of injuries of the same kind. Now, under the notion of a corporal insult is compre- hended every act offensive to the person which can be inflicted without causing a lasting physical evil, every act which produces a disagreeable sensation, inquietude, or pain. But an act of this sort, which if single would be scarcely sensible, may produce, by force of repetition, a very painful degree of uneasiness, or even intolerable torture. I have read somewhere that water, falling drop by drop upon the crown of the naked head, is one of the most cruel tortures ever invented. Chutta ccwat lapidem, dropping water hoUows the rock, says the Latin proverb. Thus, the indi- vidual exposed by his relative weakness to suffer vexations of this sort at the will of his persecutor, and destitute, as we have supposed, of all legal protection, would be reduced to a most miserable situation. Nothing more is needed to establish on one side absolute despotism, and on the other complete servitude. 298 PEINCIPIES OF THE PEWAL CODE. But sucli a one is not the slave of a single person only j lie is tte slave of everybody who has a mind to play the despot. He is the sport of the first comer, who, knowing his weakness, may be tempted to abuse it. Like a Spartaii helot, he is dependent upon aU the world, always fearing and always suffering, an object of general ridicule, and of a contempt not even softened by com- passion ; in one word, lower than any slave, because the misfor- tunes of a slave spring from a compulsatory condition entitled to pity ; whUe his degradation grows out of the baseness of his character. These little vexations, these insults, have, for another reason, a sort of pre-eminence in tyranny over violent attacks. Those acts of wrath suflcient to quench at once the hostility of the offender, and even to give an immediate feeling of repentance^)! offer to view a termination of sufferings ; but a humbling and malignant insult, far from exhausting the hatred which produces^' it, appears rather to serve as an incentive ; so that it presents itself to the imagination as the forerunner of a succession of injuries, the more alarming because indefinite. What is here said of corporal insults may be applied to threats, since it is to their threatening quality alone that corporal insults owe all their consequence. Outrages in words are not altogether of the same character. They are only a kind of vague defamation, an employment of injurious terms of indeterminate signification, and of which the ineaning varies much, according to the condition of persons.* What is signified by these verbal assaults is this, that the person assailed is thought worthy of public contempt; but on what particular account is not specified. The probable evil which may result is the renewal of similar reproaches. We may fear, too, lest a profession of contempt publicly made may invite other men to join in it. It is, in fact, an invitation which many will * 'We must carefully disfcingtush outrageous words of special defama- tion from those which have no particular object. The former can be refuted ; they furnish room for attestatory satisfaction. The latter, being vague and indefinite, do not offer the same hold. PEIIfOIPLES OP THE PENAL COBE. 399 be ready to accept. The pride of censure, the pleasure of triumph- ing at another's expense, the spirit of imitation, the inclination to believe all strong assertions, give weight to these sorts of injuries. But they seem to owe their principal importance to the negligence of the laws, and to the usage of duelling, — that subsidiary remedy, by which the popular sanction has attempted to supply the silence of the laws. It is not surprising that legislators, fearing to give too much importance to trifles, have left in a state of almost universal abandonment that part of security which consists in a freedom from the petty acts of vexation above enumerated. The physical evil, so natural a measure of the importance of an offence, is almost nothing ; and the distant consequences quite escaped the inexperience of those by whom laws were first established. Duelling offered itself to fill this gap. This is not the place to inquire into its origin, or to examine its variations and appa- rent absurdities. It is enough that duelling exists ; that in fact it assumes the form, of a remedy, and serves to restrain that enor- mity of disorder which otherwise would result from the negligence of the laws. This usage once established, produces the following conse- quences. The first effect of dueUing is to put a stop, in a great measure, to the evil of those offences to which it applies — ^that is, to the shame which results from insult. The offended party is no longer in. that miserable condition, exposed by his weakness to the outrages of the insolent, and the contempt of all. He is deli- vered from a state of continual fear. The blot upon his honour is effaced ; and if the duel has followed immediately upon the affront, there is no blot ; it has no time to fix itself; for dis- honour does not consist in. receiving an insult, but in submitting to it. The second effect of dueUing is, that it acts as a punishment, and tends to prevent the reproduction of like offences. Every new example is a promulgation of the penal laws of honour, a notification that offensive acts cannot be indulged in, without expo- 300 PEDTCIPLES OP THE PENAL CODE. sure to the consequences of a private combat — that is, according to the event of the duel, to the danger of different degrees of bodily suffering, or to death itself. Thus the brave man, impelled by the silence of the law to expose himseK in order to punish an insult, upholds the general security, while labouring for his own. But considered as a punishment, the duel is extremely defective. 1st. It is not a means of which everybody can avail themselves. There are numerous classes who cannot participate in the protec- tion which it affords, such as women, children, old men, the sick, and those who lack courage to purchase exemption from shame at the risk of so great a danger. Besides, by an absurdity ia the point of honour worthy of its feudal origin, the upper classes have not admitted their inferiors to the equality of the duel ; the peasant outraged by a gentleman cannot obtain this satisfac- tion. The insult in this case may have less serious effects, hut still it is an iasult, and an evil without a remedy. In all these respects the duel, considered as a punishment, is ineffioaciom. 2nd. Often it is no punishment whatever, because opinion at- taches a reward to it, which may appear, in many eyes, superior to all its dangers. This reward is the honour attributed to the proof of courage, — an honour which has often an attractive power superior to the force of all opposing motives. The time has been when it was essential to the character of a gallant gentleman to have fought at least one duel. A turn of the eye, an inattention, a preference, a suspicion of rivalry, anything was cause enough with men who only wanted a pretext, and who found themselves a thousand times paid for the danger by obtaining the applauses of both sexes, by each of which bravery, for different reasons, is equally admired. Punishment, being thus amalgamated with reward, has no longer a truly penal character, and becomes still more inefficacious. 3rd. The duel, considered as a punishment, is also defective by excess, or, according to the proper expression, which will be elsewhere explained, it is too expensive. Sometimes, indeed, it amounts to nothing; but it may be capital. Between these KHNCIPLES OF THE PENAL CODE, 801 extremes of aU and nothing there is a hazard of all the inter- jnediate degrees, — wounds, scars, mutilations, limbs crippled or lost. It is plain that if a satisfaction for insults were to be chosen, the preference should be given to a punishment less uncertain and less hazardous, which can neither extend to the hfe of the offender, nor be entirely powerless. There is stUl another singularity ia the penal justice which appertains to a duel. Costly to the aggressor, it is no less so to the iojured party. The offended person cannot claim a right to punish the offender but by exposing himself to the same punish- ment, and even with a manifest disadvantage ; for the chance is naturally in favour of him who has the choice of his antagonist. This punishment, then, is at once expensive and misdirected. 4th. Another particular inconvenience of this jurisprudence of duelling consists in this : it aggravates the evil of the offence in every case in which a challenge is not sent, except for some known impossibility of sending it. If the offended party does not send a challenge, he is forced to betray two capital defects of character, — want of courage, and want of honour : want of that virtue which protects society, and without which it cannot be maintained, and want of sensibility to the love of reputation, one of the great foundations of morality. It thus happens that the offended party finds himself, by the law of duelling, in a worse situation than if there were no such law ; for if he refuses this austere remedy it changes into a poison, the infection of which he cannot escape. 5th. If in certain cases the duel, in quality of punishment, is not so inefficacious as it appears to be, it is only because an innocent person has exposed himself to a punishment which is in fact a pure eviL Such is the case of persons who by reason of some infirmity of sex, age, or state of health, cannot employ this means of defence. In their condition of personal feebleness they have no resource, except chance grants them a protector, who has at the same time the power and the wiU. to risk his person, and to fight in their place. It is thus that a husband, a lover, a brother, may take upon themselves to punish an injuryto a wife, amistress. 302 PEINOIPLES or THE PENAL CODE. and a sister ; and if in such a case the duel becomes efficacious as a protection, it is only by hazarding the security of a third person, who finds himself burdened with a quarrel with which he has no personal connection, and with the origin of which he had nothing to do. It is certain that duelling, considered as a branch of penal justice, is an absurd and monstrous means ; but absurd and mon- strous as it is, it cannot be denied that it answers well its prin- cipal object, it entirely effaces the hlot which an insult imprints upon the honour. Vulgar moralists, by condemning public opinion upon this point, only confirm the fact. Now, whether this result of duelling is legitimate or not, no matter ; it exists, and has its cause. It is essential that the legislator should look into it; so interesting a phenomenon should not remain without investigation. An afiront makes him who is the object of it be looked upon as degraded by his own feebleness and cowardice. Always placed between insult and disgrace, he can no longer stand on an equal footing with other men, nor pretend to the same atten- tions. But if, after an insult, I present myseK to my adversary, and consent to risk my life against his, by that act I emerge from the humiliation into which I had sunk. If I fall, at least I am delivered from the public contempt and the insolent dominion of my enemy. If he falls, I am freed from humiliation, and the guilty is punished. If he is only wounded, it is a sufficient lesson for him and for those who might be tempted to imitate his conduct. Am I wounded, or is neither hurt ? — stUl the comhdt is not useless ; it always produces its effect. My enemy perceives that he cannot renew his insults but at the peril of his life ; I am not a passive being who may be outraged with impunity ; Iny courage protects me, nearly as the law would do, if it visited such offences by a capital or afflictive punishment. But if, when this means of satisfaction is open to me, T patiently endure an insult, I rendet myself contemptible in the eyes of the public, because such conduct betrays timidity, and timidity is one of the greatest imperfections in the character of a man. A poltroon has always been an object of contempt . PRINCIPLES OP THE PENAL CODE. 303 But ought this want of courage to be classed among the vices ? Is the opinion which degrades poltroonery a hurtful or a useial prejudice ? It can hardly he doubted that this opinion is conformable to the general interest, if we consider that the first passion of every man is the desire of his own preservation, and that courage is more or less a factitious quality, a social virtue which owes its birth and growth to public esteem more than to every other cause. A momentary ardour may be kindled by anger, but a courage, tranquil and sustained, is only formed and ripened under the happy influences of honour. The contempt, then, which is felt for poltroonery is not a useless sentiment ; the suffering which it brings upon poltroons is not a pain wholly thrown away. The existence of the body politic depends upon the courage of the indi- viduals who compose it. The external security of a state against its rivals depends upon the courage of its soldiers ; the internal Becurity of a state against those very soldiers depends upon the courage of the mass of citizens. In one word, courage is the public soul, the tutelary genius, the sacred palladium by which alone we can be protected against all the miseries of servitude, remain in the condition of men, or escape falling beneath the very brutes. Now the more honotu^able courage is, the greater will be the number of courageous men ; the more poltroonery is despised the fewer poltroons. This is not all. Where duels are in vogue, he who, being in a «ondition to ' fight, puts up with an insult, not only betrays timidity; he revolts against the popular sanction which has made it a law to fight, and shows himself, on an essential point, in- different to reputation. But the popular sanction is the most active and the most faithful minister of the principle of utility, the most powerful and the least dangerous ally of the political sanction. The laws of the popular sanction, as a general rule, are in accordance with the laws of utility. The more sensitive a man is upon the point of reputation, the more likely he is to be virtuously inclined ; the less sensitive he is on that point, the more readily does he yield to the seduction of all the vices. 304 PEUfCIPLES 01' THE PENAI CODE. The result of this discussion is, that in the state' of ahandon- ment in which the laws have hitherto left the honour of the citizens, he who endures an insult without recurring to the satis- faction which puhlic opinion prescrihes, is thereby reduced to a humiliating dependence, and exposed to receive an indefinite series of affronts. He exhibits a want of that sentiment of courage on which the general security depends ; and a lack of sensibility to reputation, that sensibility which is the protector of all the virtues and a defence against all the vices. Upon examining the progress of public opinion in relation to insults, it appears to me that, generally speaking, it has been good and usefal ; and the successive changes which the practice of duelling has undergone have made it more and more conform- able to the principle of utiUty. The public would be wrong, or rather its foUy would be palpable, if, being spectator of an insult, it immediately directed a decree of infamy against the insulted party ; but that it does not do. This decree of infamy is issued only in case the person insulted shows himself a rebel to the law of honour, and signs with his own hand the judgment of degradation. To speak generally, then, the public has some reasons for this system of honour.* The real blunder is on the part of the laws. 1st. In having suffered, in respect to insults, that anarchy and want of all legal redress which has caused the strange and unlucky * Does the public know what reason there is in its opinion ? Is it guided by the principle of utility, or by a mere spirit of imitation, and a blind instinct ? Does the duellist act from an enlightened view of his own and the general interest ? This is a question more curious than usefal ; but the following observation may help to resolve it. It is one thing to be determined by the presence of certain motives, and another thing to perceive the influence of those motives. There is no action, no judgment, without a motive, as there is no effect without a cause. But to ascertain the influence which a motive exercises upon us, we must know how to turn the miad inward upon itself and to anatomize thought. The mind must be divided into two parts, of which one is employed in observing the other, — a difficult operation, so seldom practised that few are capable of it. PETlSrCIPLES OF THE PEIfAI CODE. 305 remedy of duelling to be resorted to ; 2nd, In having set itself in ■(Opposition to duelling, a remedy imperfect and objectionable, but tbe only remedy against insults in the power of the sufferers ; 3rd, In having opposed it by disproportioned and inefficacious means. CHAPTEK XV. Remedies for Offences against Sonowr. We mil begin with the means of satisfaction for offended honour ; and will afterwards point out the reasons which justifythose means. Offences against honour may be divided into three classes : — verbal outrages, corporal insults, insulting threats. The punish- ment, if rendered analogous to the offence, may be made to operate at the same time as a means of satisfaction to the party injured. List of these- punishments : — 1st. Simple admonition. 2nd. The offender obliged to read aloud his own sentence. 3rd. The offender on his knees before the injured party. 4th. An apology pronounced by him. 6th, Emblematical dresses (in certain particular cases). 6th. Emblematical masks. 7th. The witnesses of the insult caUed in to be witnesses of the reparation. 8th. The persons whose good opinion is most important to the offender called to be present at the execution of the sentence. 9th. Publicity of the judgment. 10th. Banishment, longer or shorter, either from the presence of the injured party or from that of his friends. For an insult given in a public place — as a market, a theatre, or a church — banishment from those places. 11th. Por a corporal insult, a retort of the same kind, inflicted by the injured party, or, if he prefer it, by the hand of the executioner. i 12th. Por an insult to a woman, the man to be dressed in women's clothes, and the retort to be inflicted by the hand of a ■woman. 306 PEINCIPLES OT THE PENAL COBB. Many of these means are new, and some of them will appear singular; but new means are necessary, since experience has shown the insufficiency of the old ones ; and as to their apparent singularity, that very thing adapts them to their end, for it enables them, by analogy to the insult, to transfer to the offender the contempt he desired to fix upon the innocent sufferer. These means are varied and numerous to meet the number and variety of this sort of offences, to correspond to the gravity of cases, and to furnish reparations adapted to the different social distinctions; for it is hot fit to treat in the same way an insult to a subaltern and to a magistrate, to an ecclesiastic and to a soldier, to a youth and to an old man. All this theatrical play, apologies, attitudes, emblems, forms solemn or grotesque, according to the difference of cases — in one word, these public satisfactions turned into spec- tacles, would furnish to the injured party immediate pleasures, and pleasures of recollection, which would well compensate the mortification of the iustilt. Since the injury is wrought by artificial means, artificial means should aid in the reparation ; otherwise it would fail to strike the imagination in the same way, and would not be complete. The offender has availed himself of a certain form of insult to turn the public contempt upon his adversary ; it is necessary to employ an analogous form of infliction in order to turn this contempt back upon him. Opinion causes the disease, opinion must cure it. The wounds inflicted by the spear of Telephus could only be healed by the touch of the same weapon. This is a symbol of the operations of justice in matters of honour. An affront has done the evil, an affront must work the cure. Let us follow out the effect of a satisfaction of this kind. The injured man, reduced to an intolerable state of inferiority in respect to his aggressor, can no longer frequent with security his old places of resort, and he discovers in the future only a perspective of injuries. But immediately after the legal repa- ration he regains what he had lost; he walks securely with upraised head, and even acquires a positive superiority over his adversary. How is this change produced? It is because he PEIlfCrPLES 01' THE EENAl COBE. 307 appears no longer a feeble and miserable being wbom any one may tread under foot ; tbe power of the magistrate has become his; no one will be tempted to repeat an insult so signally punished. His oppressor, who for a moment seemed so high, has fallen from his car of triumph ; the punishment to which he has been subjected in the sight of so many witnesses proves that he is no longer to be feared ; and nothing of his violence remains except the reeoUeotion of his chastisement. "WTiat more can the insulted party desire ? "What more could he do if he had the strength of a giant ? If legislators had always fitly applied this system of satisfac- tions, duelling never would have come into existence, for it always has been, and now is, only a supplement to the insuflS- ciency of the laws. In proportion as this void of legislation is iilled by regulations adapted to the protection of honour, we shaU. see the usage of duels diminished ; and it would cease at once if a system of honorary satisfactions were introduced, conformed to public opinion, and faithfully administered. In former times duels served as a means of decision in a great number of cases in which it would be the height of absurdity to employ them now. A suitor who should send a challenge to his antagonist to prove a title, or to establish a right, would be thought a fool ; but in the twelfth century that means was constantly employed for those purposes. Whence the change? It comes from that change in jurisprudence which has gradually taken place. Jus- tice growing more enlightened, and directing itself by better rules and forms, has offered means of redress preferable to the duel.* The same cause will continue to produce the same eifects. As soon as the law shall ofier a certain remedy against ofiences that wound the honour, no one will b^ tempted to recur to an equivocal and dangerous means. Who loves pain and death ? Nobody. Such a sentiment is equally a stranger to the heart of the hero and to the soul of the coward. It is the silence of the * In France, the dnel in civil oases was abolished by Philip-le-Bel, in 1305. He had rendered the Parliament stationary at Paris, and had done much for the estabUshment of judicial order. X 3 308 PEINOIPLES OF THE PEN AX COBE. laws, it is the forgetMness of justice, wliicli drives the wise man to this sole, sad resource of self-protection. To give to honorary satisfaction aU the extent and force of which it is susceptible, the definition of offences against honour ought to have latitude enough to embrace them all. Follow public opinion, step by step; be its faithful interpreter. M which opinion regards as an assault upon honour, let the laws so regard. Is a word, a gesture, a look sufficient in the public eye to constitute an insult ? — that word, that gesture, that look, in the view of justice, should constitute an offence. The intent to injure is an injury. Everything intended to testify contempt for a man, or to draw contempt upon him, is an insult, and ought to have its reparation. Is it said that these insulting signs, doubtful in their nature, fugitive and often imaginary, would be difficult to ascertain, and that persons easily offended, seeing an insult where there was none, might subject the innocent to undue punishment ? This danger amounts to nothing; for it is quite easy to trace the line of separation between real and imaginary injuries. This may be accomplished by allowing the plaintiff to question the defendant as to his intention — " Did you design by such a word or action to testify contempt for such a person ?" If the defendant denies the intention, his answer, true or false, is enough to purge the honour of him who has been, or who thinks himseK offended. For even if the injury were quite unequivocal, to deny it is to have* recourse to falsehood ; it is the avowal of a fault, it is the betrayal of fear or weakness; in one word, it is an act of inferiority, it is to humble one's self before an adversary. In arranging the catalogue of offences which have the character of insult, there are some necessary exceptions. Care must be taken not to involve in a decree of proscription useful acts of public censure, an exercise of the power of the popular sanction. There must be reserved to friends and to superiors the authority of correction and reprimand; it is necessary to protect the liberty of history, and the liberty of criticism. PBDfCIPLES OF THE PENAL CODE. 309 CHAPTER XVI. Vindictive Satisfaction. This subject does not require many particular rules. Every kind of satisfaction, as it is a punishment to the offender, naturally produces a pleasure of vengeance to the injured party. That pleasure is a gain ; it calls to mind Samson's riddle — it is the sweet coming out of the terrible, it is honey dropping from the lion's mouth. Produced without expense, a clear gain result- iag from an operation necessary on other accounts, it is an enjoy- ment to be cultivated, Uke any other ; for the pleasure of ven- y^ geance, abstractly considered, is, like every other pleasure, a good in itself. It is innocent while restrained within the limits of the kw; it only becomes criminal at the moment when it breaks those Hmits. It is not vengeance which is to be regarded as the most malignant and dangerous passion of the human heart ; it is y^ antipathy, it is intolerance — the hatreds of pride, of prejudice, of lehgion, of politics. The enmity which is dangerous is not that which is well founded, but that which springs up without any substantial cause. Useful to the individual, /this motive is also useful to the public ; indeed, it is necessary. It is this vindictive satisfaction which sets the tongues of witnesses in motion ; it is this which animates the accuser and engages him in the public service, in spite of the embarrassments, the expenses, the enmities to which it exposes him I it is this, too, which surmounts the public pity in the punish- ment of criminals. Take away this resource, and the power of the laws will be very limited ; or, at all events, the tribunals will not obtain assistance, except for money — a means not only burdensome to society, but exposed to other very serious objections. Common moralists, always duped by words, are not able to comprehend this truth. The spirit of vengeance is odious ;. all satisfaction drawn from that source is faulty; forgiveness of injuries is the first of virtues. No doubt those implacable cha- racters which no satisfaction can soften are odious, and ought 310 PRINCIPLES OP THE PENAL CODE. to be so. Eorgetfulness of injuries is a virtue necessary to humanity ; but it becomes a virtue only after justice has done its ■work, -when it has furnished or denied a satisfaction. Before that, to forget injuries is to invite their repetition ; it is not being the friend, it is being the enemy of society. "WTiat more can crime desire than an arrangement by which ofiences shall be always pardoned ? What ought to be done to afi'ord this vindictive satisfaction ? Everything which justice requires for the sake of satisfactions of other kinds and for the punishment of the offence, but nothingmore. The least excess consecrated to the sole object of vengeance would be a pure evil. Inflict the proper punishment, and let the injured party derive from it such a degree of satisfaction as comports with his situation, and of which his nature is susceptible. But though nothing should be added to the severity of punishment with this partiqular end in view, the pimishment may be modified for the accomplishment of this end, according to what may be supposed to be the sentiments of the injured party, from his position or from the nature of the offence. The preceding chapter contains some examples of this sort; others will be given when treating of the choice of punishments. CHA.PTEE XVII. Sul)stitutwe Satisfaction; or, Satisfaction at the charge of a Third Party. In ordinary cases, the expense of satisfaction ought to fall upon the author of the evil ; because, falling in that way, it tends in quality of punishment to prevent the evU — that is, to diminish the frequency of the offence. Where it falls upon another person, it has no such tendency. Where this reason does not exist, with regard to the first respondent, the law of responsibility must be modified in conse- quence ; or, in other terms, a third person must be called in to pay, instead of the author of the damage, when he cannot him- MtlNCIPLES OP THE PENAI CODE. 31 I self fumisli the satisfaction, and when sucli an obligation imposed upon a tHrd person tends to prevent the offence. This may happen in the following cases : — 1st. The responsi- , biEty of a master for his servant 2nd. The responsibility of a guardian for his ward. 3rd. The responsibility of a father for his children. 4th. The responsibility of a mother for her chil- dren, in her character of guardian. 5th. The responsibility ot a husband for his wife. 6th. The responsibility of an innocent person who profits by the offence. I. Eesponsibiiitt op a Mastee. — This responsibility is founded upon two reasons, the one of security, the other of equality. This obhgation imposed upon the master acts like a punishment, and diminishes the chance of like mishaps-. He is interested to know the character, and to watch over the conduct of those for whom he is responsible. By making him accountable for neglect of this duty, the law appoints him a police inspector and a domestic magistrate. S Besides, the condition of a master almost necessarily supposes a certain fortune, the quality of being an injured party supposes nothing of that sort. Since an inevitable evil lies between two parties, it is best to throw the weight of it upon him who has most means of sustaining it. This responsibility may have some inconveniences, but if it did not exist there would be more and worse ones. If a master wished to occasion a trespass upon the lands of his neighbour, to expose him to some accident, to inflict a piece of vengeance upon hitn, to make him live in continual inquietude, he would only need choose some vicious domestics, to whom he might hint the service of his passions and his hatreds, and that without com- '■inanding anything, without being an accomplice, and without ''Iffording any evidence of participation ; always ready to sustain or to disavow, he would make them the instruments of his designs, and would run no risks himself.* By showing them a little more than ordinary confidence, by taking advantage of their * There are many ways of iBJuring anotlier without any trace of participation. I have been told by a French lawyer, that when the Parliaments wished to save a culprit, they selected with design some 312 PKINCIPIES OP THE PENAl CODE. attaeliment, their devotedness, tlieir servile vanity, there is no- thing he could not attain by general instigations without expos- ing himself to the danger of commanding anything in particular, and he would enjoy with impunity the evil which he had done by their hands. " Unfortunate that I am," cried Henry II., one day, when wearied with the haughtiness of an insolent prelate. "What! so many servants who boast their zeal, and not one who dares to avenge me !" The murder of Becket was the fruit of this imprudent or criminal apostrophe. "What, in the master's case, diminishes in a great degree the danger of his responsibility, is the responsibility of the servant. The real author of the evil, as far as circumstances permit, ought to be the first to support its troublesome consequences ; he ought to be charged with the burden of satisfaction according to his capacity ; so that a negligent or vicious servant may not cooUy say, while doing the damage, " It is my master's affair, not mine." Besides, the responsibility of the master is not always the same ; it must vary according to circumstances, which must be examiaed with attention. The first thing to be considered is the degree of connection subsisting between the master and the servant. If the question is of a day-labourer, or a man engaged by the year ; of a work- man who lodges abroad, or in the house ; of an apprentice or a slave ; it is clear that the closer the connection is the greater should be the responsibility. A foreman is less dependent upon his employer than a lackey upon his master. The second thing to be considered is the nature of the work upon which the servant is employed. The presumptions against the master will be weaker in those cases in which his interest is most exposed to suffer by the negligence of his servants, and stronger in the contrary cases. In the first case the master already has a sufS.cient motive to be watchful ; in the second he may not have that motive, and the law shoidd supply it. unsldlftil person to report the cause, hoping that his blrmders would leave some loop-hole for annulling the sentence I Chicane so artful is almost entitled to the epithet of genius. PEINCIPIES OF THE PENAL CODE. 313 Third. The master is peculiarly responsible when the mischief has happened by occasion, or in the act of his service : because it is to be presumed that he directed it, or at least that he foresaw what has happened; and because he can easier watch his servants at those times than while they are at liberty. There is a case which seems to reduce to a low degree, if it does not altogether annihilate, the strongest reason for the master's responsibility : viz., when the evil is caused by a grave offence, accompanied consequently by a proportionate punishment. If a man of mine, for example, having a personal quarrel with my neighbour, sets his bam on fire, ought I to be responsible for a damage which I could not prevent ? If the fellow did not fear .'being hung, would he fear a dismissal from my service ? Such are the presumptions which serve as a basis to respon- sibility ; presumption of negligence on the part of the master ; l^resumption of his superiority in wealth. But it is not to be forgotten that presumptions are nothing when belied by facts. Por example, an accident has happened by the overturn of a vehicle. Nothing is known of the injured party. It is presumed that he stands in need of an indemnity from the owner of the vehicle, who offers himself to the imagination as being well able to support the loss. But what becomes of this presumption, when it is knovm that this owner is a poor farmer, and the injured party an opulent landlord ; that the first would be ruined if obliged to pay an indemnity, hardly of the sUghteat consequence to the other ? Presumptions ought to guide, but not to govern us. The legislator ought to consult them ia establishing general rules ; he should leave it to the magistrate to modify their appM- cation according to individual cases. The general rule would establish the responsibility of the master; but the magistrate, according to circumstances, might change this arrangement, and make the weight of the loss fall upon the true author of the evil. The greatest abuse which can result from leaving to the magis- trate the utmost latitude in this distribution wiU be to produce, iu certain cases, the same inconvenience which must necessarily 314 PRINCIPLES OP THE PENAL CODE. result from a general and inflexible rule. Should the magistrate on one occasion favour the author of the evil, and the master on another ? He who suffers wrong will suffer no more from this partiality than he might have suffered from the inflexibility of the law. In our systems of law, no attention has been given to these modifications. The entire burden of the loss has been thrown sometimes upon the servant who has caused the damage, and sometimes upon the master; whence it follows that sometimes security and sometimes equality have been neglected, both of which ought alternately to have the preference, according to the nature of the case. II. Eesponsibility oi' a Gttaedian. — The ward is not an advantage to the guardian ; in general he is a burden. If the ward has sufficient means to furnish satisfaction, it is not neces- sary that another should pay for his acts. If he has no means of his own, the wardship is too heavy a burden in itself to be loaded with factitious responsibility. All that security requires is to attach to the negligence of the guardian, proved or even presumed, an amend more or less weighty, according to the nature of the proofs, but such as never to exceed the amount required for satisfaction. III. Responstbilitt op a Father. — If a master ought to be responsible for the faults of his servants, for a much stronger reason a father ought to be so for those of his children. If a master can and ought to watch over those who depend upon him, it is a duty more pressing upon a father, and much easier to be fulfilled. He not only exercises over his children the authority of a domestic magistrate, but he has all the ascendancy of affec- tion. He is not only the guardian of their physical existence, he has it in his power to be the controller of their feelings. If a master may abstain from employing, or may dismiss upon dis- covery, a servant who evinces dangerous dispositions, a father, who can fashion at his pleasure the character and habits of his children, is justly thought to be the author of all the dispositions which they manifest. If they are depraved, it is almost always PEINCIPLES OF THE PEKTAL CODE. 315 the effect of his negligence or of his vices ; and he onght to bear the consequences of an evil which he might have prevented. If, after a reason so weighty, there needs yet another argument, it may be said that children, saving the rights which their quality of sensitive beings confers upon them, are a part of the father's property, and ought so to be regarded. He who enjoys the advantages of the possession, ought to support its inconveniences. The good is more than a compensation for the evil. It would be strange if the loss or depredations occasioned by children should be borne by an individual who knows nothing of them, except by their heedlessness or their malice, rather than by him who finds in them the greatest source of his happiness, and who indemnifies himself by a thousand hopes for the actual cares of their education. But this responsibility has a natural limit. The majority of a son, or the marriage of a daughter, putting an end to the father's authority, puts an end also to his legal responsibility. He ought not to be answerable for actions which he no longer has the power to prevent. To perpetuate for life the father's responsibility, on the plea that he is the author of the vicious dispositions of his children, would be unjust and cruel ; for in the first place it is not true that aU the vices of an adult are attributable to the defects of his education. Diverse causes of corruption, after the epoch of inde- pendence, may triumph over the most virtuous education. Be- sides, the condition of a father is sufficiently imfortunate when the bad dispositions of a son arrived at man's estate break out into offences. What he has already suffered in his family, the anguish he feels from the misconduct or dishonour of a son, is a kind of punishment which nature inflicts upon him, and which the law need not aggravate. It would be pouring poison upon his wounds, and that without any hope of repairing the past, or providing against the future. Those who have attempted to justify such barbarous jurisprudence by the example of China, have not recollected that the authority of a father, ending in that country only with his life, it is but just that his responsibility shoidd continue as long as his power. 316 PEINCrPLES OP THE PENAI CODE, IV. Eesponsibhitt of the Mothee. — The obligation of the mother is naturally regulated by her rights, on which her means of control depend. If the father is alive, the mother's responsi- bility, like her power, remains absorbed as it were in that of her husband. If he is dead, and she has taken the reins of domestic government into her own hands, she becomes responsible for those who are subject to her authority. V. Eesponsxbixitt OS A Husband. — This case is as simple as the preceding. The obligation of a husband depends upon his rights. As the administration of the property belongs to him alone, unless the husband were answerable, the injured party would be without remedy. This reasoning supposes the order of things generally established ; that order so necessary to the peace , of families, to the education of children, to the maintenance of manners, — that order so ancient and universal, which subjects the wife to the power of the husband. As he is her chief and her guardian, he is answerable for £er in the eye of the law. He is even charged with a responsibility stOl more delicate before the tribimal of opinion ; but that is a matter which does not apper- tain to the present subject. VI. Eesponsibiliit of an innocent Peeson. — It often happens that a person, without having had any share ia an offence, derives from it a certain and perceptible profit. Is it not proper that this person should be called upon to indemnify the injured party, if the offender cannot be found, or cannot furnish an in- demnity ? Such a procedure would be conformable to the principles which we have laid down, namely, — first, regard for security: for there might be an aiding and abetting, though there might be no proof of it ; next, the care of equality : since it is better for one person merely to be deprived of a gain, than for another to be left to suffer a loss. Examples will make this clearer. By means of a breach made in a dike, he who was in possession of the benefit of irrigation has been deprived of it, and it has been bestowed upon another. He who comes into the enjoyment of this unexpected advantage PEINCIPLES OP THE PENAL COBB. 317 ought to share a part at least of his gain with the person who has experienced the loss. A tenant for life, whose property passes by settlement to a stranger, is killed, and leaves a family in want. The residuary proprietor, who realizes in consequence a premature possession, ought to make some allowance to the children of the deceased. A benefice is vacated, because the possessor has been killed ; if he leaves a wife and children in poverty, the successor owes them an indemnity proportionate to their need and to his gain. CHAPTEE XVIII. Subsidiary Satisfaction at the Public Expense. The best fund whence satisfaction can be drawn is the property of the delinquent, — since it then performs, as we have seen, with superior convenience the functions both of satisfaction and of punishment. But if the offender is without property, ought the injured person to remain without satisfaction ? No ; for, according to the reasons already laid down, satisfaction is almost as necessary as punishment. It ought to be furnished out of the public treasury, because it is an object of public good, and the security of aU is interested in it. This obligation of the public to furnish iSatisfaction is founded upon a reason which has the evidence of an axiom. A pecuniary charge divided among the mass of indi- viduals is nothing to each contributor, in comparison with what it would be to an individual or a small number. If inswranee is useful in enterprises of commerce, it is not less so in the great social enterprise in which the associates find them- selves united as partners, in consequence of a train of chances, without knowledge or choice on their part, without the power of separation, or of securing themselves by any prudential means from a multitude of snares which they mutually spread for each other. The calamities which spring from offences are evils not less real than those which resxilt from accidents of natiire. If the 318 PHINCIPLES OF THE PElfAL CODE. owner of a house sleeps sounder because it is insured against fire, his sleep will be sounder yet if he is also insured against robberyr Putting out of sight the abuses to which it is liable, it seems im- possible to give too much extension to a means so ingenious, which renders real losses so slight, and which gives so much secu- rity against eventual evils. But aU kinds of insurances are exposed to great abuse from fraud or negligence; fraud on the part of those who feign or exaggerate losses for the sake of obtaining iudemnities not due ; negligence on the part of the assurers in not taking necessary precautions, or on the part of the assured, who use less dUigenoe in protecting themselves against losses which are certain, to be made up. In a system of satisfactions at the public expense we have, then, to fear — 1st. A secret connivance between a party pretending to be injured and the author of a pretended offence to obtain an indemnity not due. 2nd. Too great security on the part of individuals, who, not having the same consequences to fear, will no longer make the same efforts for the prevention of offences. This second danger is little to be dreaded. Nobody will neglect an actual possession certain and present in the hope of recovering, in case of loss, an equivalent for the thing lost, even a perfect equivalent ; and when we consider that an indemnity cannot be obtained without trouble and expense, that there is a temporary privation, that the vexations of a claim and its pursuit are to be encountered, and the disagreeable part of an accuser to be played ; and that, after aU, under the best system of procedure, success is always doubtful ; — these things considered, it is plain that every man will still have motives enough to watch over his property, and not to encourage offences by negUgenee. On the side of fraud the danger is much greater. It can only be prevented by detailed precautions, which wiU be explained elsewhere. It will here suffice to point out, as examples, two opposite cases, one in which the utUity of the remedy surpasses PEnsrciPLEs or the penal code. 319 the danger of abuse, the other in which the danger of abuse is greater than the utility of the remedy. Whenever the damage is occasioned by an offence of which the punishment is severe, and the author of which must be juridi- caDy ascertained, and also the fact of an offence committed, fraud is very difficult. The only method an impostor, who pretends to he injured, can employ to procure an accomplice, is to give him a part of the profits of the fraud ; but, provided there has not been a neglect of the clearest principles of proportion between offences and punishments, the punishment which such an accomplice must, encounter would be more than equivalent to the total profit of the fraud. Observe, that the offender must be judicially convicted before the satisfaction is granted ; without that precaution tie public treasure would be exposed to piUage. Nothing would be more common than stories of imaginary robberies, of pretended thefts committed by unknown persons who had taken to flight, in a manner the most secret, and in nights the darkest. But when it is necessary to bring the offenders into court, a secret under- standing is not easy. This is not a part which can be readily filled ; for, besides the certainty of punishment for the alleged offence encountered by the person who charges himself with it, in case the imposture be discovered, there will be still a particular and additional punishment to be shared by both accomplices ; and if it he recollected how difficult it is to fabricate a probable history of an offence absolutely imaginary, it is likely that these kinds of frauds will be very rare, if they ever happen at all. * The danger most to be apprehended is the exaggeration of a loss resulting from a real offence. But then it is necessary that the offence be susceptible of such sort of falsehood, — a case suffi- ciently rare. It would seem, then, that it may be regarded as a general maxim, that in all cases in which the punishment of the offence is severe, there is no occasion for apprehending that an imaginary offender will charge himself with the offence for the sake of a doubtful gain. 330 PEIIfCIPLES OF THE PBWAI CODE. But, for the opposite reason, when the damage results from an offence of which the punishment is slight or nothing, if the pub- lic treasure were responsible in such cases, the danger of abuse would be at its highest point. Insolvency is an example of this sort. Who so poor that he would not be trusted, if the pubHc were his secuiity ? What treasure would sufiS.ce to pay the creditors, whose debtors were really deficient, and how easy it would be to get up false debts ? iN'ot only would such an indemnity be liable to abuse, it would be unreasonable ; for, in the transactions of commerce, the risk of loss makes a part of the price of merchandise and of the interest of money. Let the merchant be sure of losiug nothing, and he would seU cheaper ; so that, to demand an indemnity from the public for a loss thus made up for beforehand, would be asking to be paid twice over. There are stiU other cases in which satisfaction ought to be a public charge. 1 st. The case of physical calamities, such as iaundations and fires. Aids furnished by the state to sufferers in that way are not solely founded on the principle that an evil divided among many becomes light ; they rest also upon this other principle — that the state, as protector of the national wealth, is Laterested to prevent the deterioration of its domain, and to re-estabUsh the means of reproduction in places which have suffered. Such were the liberalities, so called, of the great Frederic towards provinces desolated by some scourge ; they were acts of prudence and con- servation. 2nd. Losses and misfortunes in consequence of hostilities. Those who have been exposed to the invasions of a public enemy have so much the clearer right to a public indemnity, since they may be considered as having sustained a shock which threatened all the citizens, and as having been by their situation the most exposed points of the public defence. 3rd. Evils resulting from unintentional mistakes of the ministers of justice. An error of justice is always of itself a subject of lamentation ; but that such an error, when knovra, should not be PRINCIPLES OP THE PENAI CODE. 321 repaired by proportional indemnities, is an overtliro-w of social order. Ought not the puMic to folloTV the same rules of equity ■which it imposes upon individuals ? Is it not an odious thing that the government should exert its power to exact severely all that is due to it, and should avail itself of the same means to refuse the payment of its own debts ? But this obligation is so evident, that no attempt to demonstrate it can make it cleeirer. 4th. Eesponsibility of a community for a high-handed offence committed in a public part of its territory. It is not properly the public which is responsible in this case ; it is the district or the province which should be taxed for the reparation of an offence resulting from negligence of police. In cases of competition, the interests of an individual ought to take precedence of those of the treasury. What is due to an injured party under the title of satisfaction ought to be paid in preference to what is due to the public by way of fine. This is not the decision of vulgar jurisprudence, but it is the decision of reason. The loss to an individual is an evil that is felt ; the gain to the public is a good felt by nobody. What the offender pays in quality of fine is a punishment, and nothing more ; what he pays in quality of satisfaction is also a punishment, and a severer one ; it is, beside, a satisfaction to the injured party, and so far a good. What I pay to the state, a creature of reason with which I have no quarrel, affects me only with the sort of chagrin I should feel if I dropped the same money into a weU ; what I pay to my adversary, the satisfaction which I am forced to make, at my own expense, to him I wished to injure, is a degree of humi- liation which gives to punishment its most appropriate character. 322 PART THIRD. PUNISHMENTS. CHAPTEE I. Punishments which ought not to he inflicted. Thu cases in wHcli punishment ouglit not to be inflicted may be reduced to four teads : when .punishment would be — 1st, Mis- applied ; 2nd, Inefficacious ; 3rd, Superfluous ; 4th, Too expensire. I. Punishments Misappiied. — Punishments are misapplied wherever there is no real offence, no evil of the first order or of the second order ; or where the evil is more than compensated by an attendant good, as in the exercise of political or domestic authority, in the repulsion of a weightier evU, in self-defence, &c. If the idea of what constitutes a real offence has been clearly apprehended, it will be easy to distinguish real from imaginary offences — from those acts, innocent in themselves, which have been arranged among offences by prejudice, antipathy, mistakes of government, the ascetic principle, in the same way that several , wholesome kinds of food are considered among certain nations as poisonous or unclean. Heresy and witchcraft are offences of this class. II. Ineeeicacious Punishments. — I caU those punishments inefficacious which have no power to produce an effect upon the will, and which, in consequence, have no tendency towards the prevention of like acts. Punishments are inefficacious when directed against individuals who could not know the law, who have acted without intention. PBUrCIPlES OP THE PEISTAL COBB. 323 ■who have done the evil innocently, under an erroneous supposition, or by irresistible constraint. Children, imbeciles, idiots, though they may be influenced, to a certain extent, by rewards and threats, have not a sufficient idea of futurity to be restrained by punishments. In their case laws have no efficacy. If a man is determined to act by a fear superior to that of the heaviest legal punishment, or by the hope of a preponderant good, it is plain that the law can have little influence over him. We have seen laws against duelling disregarded, because men of honour are more afraid of shame than of punishment. Punish- . ments directed against religious opinions generally fail to be effectual, because the idea of everlasting reward triumphs over the fear of death. According as these opinions have more or less influence, punishment, in such cases, is more or less efficacious. III. SuPERELTioTjs PUNISHMENTS. — Puuishmeuts are superfluous in eases where the same end may be obtained by means more mild — ^instruction, example, invitations, delays, rewards. A man spreads abroad pernicious opinions : shall the magistrate therefore seize the sword and punish him ? "No ; if it is the interest of one individual to give currency to bad maxims, it is the interest of a thousand others to refute him. IV. Punishments too Expensive. — If the evil of the punish- ment exceeds the evil of the ofience, the legislator will produce more sufflering than he prevents. He will purchase exemption from a lesser evil at the expense of a greater evil. Two tables should be kept in view — one representing the evil of offences, the other the evil of punishments. The following evils are produced by every penal law: — 1st. Miil of coercion. It imposes a privation more or less painful according to the degree of pleasure which the thing forbidden has the power of conferring. 2nd. The sufferings caused hy the punishment, whenever it is actually carried into execution. 3rd. Enil of apprehension suffered by those who have violated the law or who fear a prosecution in consequence. 4th. jEvil of false prosecutions. This inconvenience appertains to aU penal laws, but particidarly to laws which are obscure and to imaginary Y 2 324 PEINCIPLES OP THE PENAL CODE. oifences. A general antipathy often produces a frightfiil dispo- sition to prosecute and to condemn upon suspicions or appearances. 5tli. Derivative evil suffered by the parents or friends of those who are exposed to the rigour of the lav. Such is the table of evils or of expenses which the legislator ought to consider every time he establishes a punishment. It is from this source that the principal reason is drawn for general amnesties, in case of those complicated offences which spring from a spirit of party. In such cases it may happen that the law envelopes a great multitude, sometimes half the total number of citizens, and perhaps more than half. WiU you punish all the guilty ? Will you only decimate them ? In either case the evil of the punishment is greater than the evil of the offence. If a delinquent is loved by the people, so that his punishment will cause national discontent ; if he is protected by a foreign power whose good- will it is necessary to conciliate ; if he is able to render the nation" some extraordinary service; — in these parti- cular cases the grant of pardon is founded upon a calculation of prudence. It is apprehended that punishment of the offence will cost society too dear. CHAPTER II. Adsit Regula, peccatis quae poenas irroget cequas • Ne scutica diffivmn, horribile sectere fiagello. Hon. 1. i. Sat. iii. Let's have a rule Which deals to crimes an equal punishment : Nor tortures with the horrid lash for faults Worthy a birchen twig. Proportion between Offences and Punishments. MoNTEsauiEir perceived the necessity of a proportion between offences and punishments. Beccaria insists upon its importance. PUIIfCIPLES OP THE PENAL CODE. S2C^ But they rather recommend than explain it ; they do not tell in ■what that proportion consists. Let us endeavour to supply this defect, and to give the principal rules of this moral arithmetic. EiESi Rule. — The evil of the punishment must be made to exceed the advantage of the offence. The Anglo-Saxon laws, which established a price for the lives of men, two hundred shillings for the murder of a peasant, six times as much for that of a noble, and thirty-six times as much for that of the king, notwithstanding this show of pecuniary propor- tion, were evidently deficient in moral proportion. The punishment might appear as nothing compared to the advantage of the offence. ' The same error is committed whenever a punishment is decreed which can only reach a certain point, while the advantage of the offence may go much beyond. Some celebrated authors have attempted to establish a contrary maxim. They say that punishment ought to be diminished in proportion to the strength of temptation ; that temptation dimi- nishes the fault ; and that the more potent seduction is, the less evidence we have of the offender's depravity. This may be true ; but it does not contravene the rule above laid down : for to prevent an offence, it is necessary that the repressive motive should be stronger than the seductive motive. The punishment must be more an object of dread than the offence is an object of desire. Au insufficient punishment is a greater evil than an excess of rigour ; for an insufficient punishment is an evil wholly thrown away. No good results from it, either to the public, who are left exposed to like offences, nor to the offender, whom it makes no better. What would be said of a surgeon, who, to spare a sick man a degree of pain, should leave the cure imfinished ? "Would it be a piece of enlightened humanity to add tothepainsof the disorder the torment of a useless operation? Second Rule. — The more deficient in certainty a punishment is, the severer it should he. No man engages in a career of crime, except in the hope of impunity. If punishment consisted merely in taking from the guilty the fruits of his offence, and if that punishment were 326 PEijrciPLES OF the penal code. inevitable, no offence would ever be committed ; for what man is so foolish as to run the risk of committing an offence with certainty of nothing but the shame of an unsuccessful attempt ? In all cases of offence there is a calculation of the chances for and against ; and it is necessary to give a much greater weight to the punishment, in order to counterbalance the chances of impunity. It is true, then, that the more certain punishment is, the less severe it need be. Such is the advantage that results from sim- plicity of laws, aad a good method of procedure. For the same reason it is desirable that punishment should follow offence as closely as possible ; for its impression upon the minds of men is weakened by distance, and, besides, distance adds to the uncertainty of punishment, by affording new chances of escape. Thied E,niE. — Where two offences are in conjunction, the greater offence ought to be subjected to severer punishment, in order that the delinquent may have a motive to stop at the lesser. Two offences may be said to be in conjunction when a man has the power and the will to commit both of them. A high- wayman may content himself with robbing, or he may begin with murder, and finish with robbeiy. The murder should be punished more severely than the robbery, in order to deter him from the greater offence. This rule would be perfectly carried out if it could be so ordered that for each portion of evil committed there should be a corre- sponding portion of punishment. Let a man who has stolen ten crowns be punished as severely as if he had stolen twenty, and he will be a fool to take the less sum in preference to the greater. Equal punishment for unequal offences is often a motive for com- mitting the greater offence. FoTJETH EuLE. — The greater an offence is, the greater reason there is to hazard a severe punishment for the chance of preventing it. "We must not forget that the infliction of punishment is a cer- tain expense for the purchase of an uncertain advantage. To apply great punishments to small offences is to pay very dearly for the chance of escaping a slight evil. i PEINCrPLES or THE PENAL CODE. 327 The English law ■which condemned Tromen to he humt for passing counterfeit coin, was a direct invasion of this rule of pro- portion. If burning were a punishment ever to be adopted, it ought to be confined to the single case of incendiary homicides. PiFiH Btjie. — The same punishment for the same offence ought not to be inflicted upon all delinquents. It is necessary to pay some 'pgard to the circumstances which affect sensibility. The same nominal punishments are not the same real punish- ments. Age, sex, rank, fortune, and many other circumstances, ■ ought to modify the punishments inflicted for the same offence. If the offence is a corporal injury, the same pecuniary punish- iaent would be a trifle to the rich, and oppressive to the poor. iThe same punishment which would brand with ignominy a man of a certain rank, would not produce even the slightest stain in •case the offender belonged to an inferior class. The same im- s|)risonment would be ruin to a man of business, death to an infirm old man, and eternal disgrace to a woman, while it would be next to nothing to an individual placed under other circumstances. Bl Let it be observed, however, that the proportion between punishments and offences ought not to be so mathematically fol- lowed up as to render the laws subtle, complicated, and obscure. ■Brevity and simplicity are a superior good. Something of i exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire the people with a sentiment of aversion for those vices which prepare the way for crimes. CHAPTEE III. Of Prescription, as regards Punishment. ' Otoht punishment to be limited in point of time ? — in other words, if the delinquent is successful for a given period in evad- ing the law, ought he to escape punishment ? _ Shall the law in Buoh a case no longer take cognizance of the offence ? This is a question still contested. There must always be much that is arbitrary, both in the choice of offences which shall have the 328 PEijfcrpLES OF the penai code. privilege of this pardon, and in the number of years after which the privilege shall begin. Pardon can be safely allowed for offences of rashness and negli- gence, offences resulting from a faTilt exempt from bad intention. The very accident which makes such offenders puts them on their guard, and thenceforth they are little to be feared. Tor such individuals pardon is a good ; and in such cases it is an evil to nobody. Prescription may also be extended to offences not completed, to attempts that have failed. The delinquent, during the interval, has undergone the punishment in part, — for to fear it is to feel it. Besides, he has abstained from like offences, he has reformed, he has become a useful member of society. He has recovered his moral health without the employment of that bitter medicine which the law had prepared for him. But when the question relates to more serious offences, for example, the fraudulent acquisition of a large sum of money, polygamy, a rape, a robbery, it would be odious and fatal to allow wickedness, after a certain time, a triumph over innocence. 'No treaty should be had with malefactors of that character. Let the avenging sword remain always hanging above their heads. The sight of a criminal in the peaceful enjoyment of the fruit of his crime, protected by the laws he has violated, is a consolation to evil doers, an object of grief to men of virtue, a public insult to justice and to morals. To perceive all the absurdity of an impunity acquired by lapse of time, it is only necessary to imagine the law to be expressed ia terms like these: "But if the murderer, the robber, the fraudulent acquirer of another's goods, shall succeed for twenty years in eluding the vigilance of the tribunals, his address shall be rewarded, his security shall be re-established, and the fruit of his crimes shall become his lawful possession." PKINCIPLES OF THE PENAL CODE. 329 CHATTEE rV. Mistahen Punishments, or Punishments misapplied. Punishment OTigh.t to bear directly upon the individual who is to be subjected to its influence. If you desire to influence Titius, it is upon Titius that the punishment ought to act. If a punish- ment destined to influence Titius falls upon -any one else than Titius himself, it is quite clear that such a punishment is mis- applied. But a punishment directed against those who are dear to a man is a punishment to that man ; for he participates in the suf- ferings of those to whom he is attached by sympathy, and a hold can be got upon him by means of his affections. This doctrine is true, but is it good ? Is it conformable to the principle of utility? To ask if a punishment of sympathy acts with as much force as a direct punishment, is to ask if, in general, attachments to others are as strong as the love of one's self. If self-love is the stronger sentiment, it follows that recourse should not be had to punishments of sympathy till we have exhausted all the direct sufferings of which human nature is capable. No torture is so cruel that it ought not to be employed before punishing the wife for the acts of the husband, or children for the offences of their father. In punishments misapplied, four principal faults are per- ceptible : — 1st. What shall be thought of a punishment which must often fail for want of objects on which to act ? If to inflict suffering upon Titius you set about finding the persons who are dear to him, you have no other guide than the domestic relations; you are conducted by that thread to his father and his mother, his wife and his children. The most cruel tyranny has attempted to go no further. But there are many men who have no father nor mother, no wife nor child. It is necessary, then, to apply to this class of men a direct punishment; but the same direct 330 PEINCrPIES OF THE PENAl CODE. punisliment tliat answers in their case, will it not answer in every case ? 2nd. And does not this punishment suppose sentiments which may not exist ? If Titius does not concern himself about his wife and children, if he has contracted a dislike to them, at the very least he will be indifferent to their sufferings, and this part of his punishment will not affect him. 3rd. But what makes this system so frightful is the profusion, the multiplication of evils involved in it. Consider the chain of domestic connections, calculate the number of descendants that a man may have ; the punishment is communicated from one to the other; it spreads step by step like a contagion; it envelops a crowd of individuals. To produce a direct pain equivalent to one, it is necessary to create a pain indirect and misapplied, equivalent to ten, to twenty, to thirty, to a hundred, to a thousand. 4th. Punishment thus turned aside from its natural course, has not even the advantage of conforming to the public sentiment of sympathy and antipathy. When the offender has paid his personal debt to justice, the public vengeance is satisfied, and demands nothing more. If you pursue him beyond the scaffold, and extend the punishment to an innocent and unhappy family, the public pity presently revives ; an indistinct sentiment pro- nounces the laws unjust ; humanity declares against you ; and every day enlists new partisans on the side of yoiu: victim. Ee- spect for the government, and confidence in it, is lessened in every heart ; and all that is gained by this policy is a reputation of ignorance with the wise, and of barbarity with the multitude. The ties that bind men together are so complicated that it is not possible completely to separate the lot of the innocent from the lot of the guUty. The evil designed by the law for a single individual bursts its bounds, and extends itself along all those connecting ties of common sensibility which result from the affections, from honour, and mutual interests, A whole family is in suffering and in tears for the offence of one. But this evil inherent in the nature of things, this evil which all the wisdom PEINCIPIES OP IHE PENAL CODE. 331 and all the benevolence of the legislator cannot entirely prevent, is no reproach to him, and does not constitute a misapplication of punishment. If the father is compelled to undergo a punish- ment for his offence, that , punishment must, in the nature of things, be a disadvantage to his children ; it cannot be avoided ; but if after the death of a guilty father the paternal succession is ravished from the innocent children, it is a voluntary act of the legislator, who himself turns the punishment aside from its legitimate channel. The legislator, in this respect, has two duties to fulfil. In the first place he ought to avoid punishments misapplied in their primitive application. The innocent son of the greatest criminal ought to receive from the law as complete a protection as the most illustrious citizen. In the second place, it is necessary to reduce to its least term that portion of misapplied suffering which falls upon the innocent, in consequence of a direct punishment inflicted on the guilty. If a rebel, for example, is condemned to perpetual imprisonment, or to death, everything has been done against him. which should be done. A total confiscation of his property, to the prejudice of his heirs, or at least of his wife and children, would be a tyrannical and odious act. The rights of an unfortunate family smitten in its head are on that account only the more sacred. A national treasure composed of such spoils is like those impure exhalations which carry in their bosom the germs of disease. It wiU be sufficient to give a simple enumeration of the most common cases in which legislators have misapplied punishments, by making them bear upon the innocent for the sake of an oblique effect upon the guilty. 1st. Confiscation. — A remnant of barbarity which still exists throughout almost all Europe. It is applied to many offences, especially to crimes of state.* This punishment is the more * Confiscation, for offences of state, ougl;t hardly to be looked upon as a judicial punishment ; for in civil wars, generally speaking, as both parties act in good faith, there can be no criminality. Confiscation is a measure purely hostile. To leave their fortunes untouched, would ba 333 PEINCIPLES OF THE PENAL CODE. odious, since it cannot be employed till the danger is past ; and the more imprudent, since it prolongs animosities and a spirit of revenge, of which the remembrance ought to be effaced as soon as possible. 2nd. Corruption of Blood. — A cruel fiction of the lawyers to disguise the injustice of confiscation. The innocent grandson cannot inherit from the innocent grandfather, because his rights are corrupted and destroyed in passing through the blood of a guilty father. This corruption of blood is a fantastic idea ; but there is a corruption too real in the understandings and the hearts of those who dishonour themselves by such sophisms. 3rd. Loss of Privileges, whereby an entire Corporation is punished for the Misbehaviour of a part of its Members. — In England the city of London is exempted, by a particular Act, from such an infliction ; but what city, what corporation ought to be subject to it, provided its privileges are not contrary to the interest of the state ? 4th. Disastrous Lot of Bastards. — The incapacity to inherit is not here referred to. The loss of that right is no more a legal punishment in case of bastardy than in the case of younger sons ; and endless contests might result, if heirs coidd be brought for- ward, whose birth had not the attestation of publicity. But the incapacity to fulfil certain trusts, the privation of many public rights, to which they are subjected in several states of Europe, is a true punishment, which falls upon innocent children for a fault of imprudence committed by their parents. 5 th. Infamy attached to the Relatives of Persons who have com- mitted serious Offences. — This is not the place to consider what a;^pertains merely to public opinion. Opinion in this respect has taken the character of antipathy only in consequence of mis- takes of the law, which in many cases has branded the families of criminals. This kind of injustice, little by little, is passing away. leavittg munitionB of war in the hands of the enemy. But a precaution adapted to a state of war, to which recourse should be had only in extreme cases, ought to cease, or be softened as much as possible, as soon as the danger ceases to exist. PBII«^CIPLES OP THE PENAI CODE. 333 CHAPTEE V. Of requiring Seoitrity for good BeJiamiour. To require security for good behaviour, is to demand of a person, ■who is suspected of designing to commit some unlawful act, that he procure some other person, who wiU consent to undergo a cer- tain penalty, provided the apprehended offence is committed. At first view, this appears contrary to the principles above laid down, since it exposes the innocent to be punished for the guilty. It ought, then, to he justified by an advantage more than equi- valent to that evil. This advantage is the great probability of preventing an offence, and of protecting the general security by individual responsibility. The ^eat influence which it exercises over the conduct of the suspected individual constitutes the chief merit of this procedure. He reflects that generous friends have given him a decisive proof of confidence or attachment in risking their fortunes and their quiet to protect his liberty and his honour. They are hostages who have voluntarily surrendered themselves on his account. Shall he be vile enough to turn their kindness against themselves ? Shall he quench every sentiment of gratitude ? Shall he publicly declare himself a traitor to friendship, and condemn himself to soHtary remorse ? But suppose him imprudent, fickle, or vicious, and not capable of restraining himself, stiU the security required of him is not useless. Those who thus are responsible for him, beiag interested in his actions, are guardians given him by the law ; their vigilance vrill make up for his neglect, their eyes will closely watch his proceedings. Beside their personal interest in making themselves be listened to, they have the strongest title to be heard, from the service they have rendered, and from the right which they ought always to have to withdraw their security, and to leave the suspected to his fate. Such is the operation of this means in preventing offences. It serves in another way to diminish the alarm, because it fur- nishes a favourable indication of the character or the resources of 334 PEINCIPLES or the PEIfAl CODE. the suspected individual. It is a, kind of contract of assurance. Tou demand, for example, the imprisonment of a man who has attempted to do you a certain injury. One of his friends presents himself, and disputes the necessity of so rigorous a means. "I ought to know him better than you do, and I assure you that you have nothing to fear from him. This penalty, which I consent to pay in case I am mistaken, is a proof of my belief and my sincerity." Such are the advantages of demanding security for good beha- viour. It may produce an evil ; but that evil must be compared with its benefits, and especially with the vigorous measures which it would be necessary to employ against suspected persons if this procedure were not resorted to. Whenever an evil results to him who becomes security, that evil, having been voluntarily incurred, produces no danger and no alarm. If, through an imprudent zeal, he has become security with his eyes shut, the consequences concern him alone. If one are alarmed lest the same evil should befall them. But in the greater number of cases this engagement results from a feeling of security. He who becomes bound for another knows better than anybody else the character and situation of the person for whom he engages ; he is well aware of the risk he runs, and he does not assume it except with the opinion that he can do so with safety. Let us now consider in what cases it is proper to employ this means. 1st. It is useful for the prevention of offences apprehended from quarrels of hostility or honour, especially duels. In general this class of delinquents cannot be suspected of a want of sensibility to public esteem ; it is honour which puts them in hostile array. But honour does not command vengeance more positively than it forbids ingratitude, and especially that black ingratitude which punishes the benefactor by means of his very benefit. 2nd. It is extremely well adapted to prevent abuses of confi- dence, offences which violate the duties of a trust. Ifobody is compelled to undertake such and such employments ; it is fit that these employments should not be intrusted except to men who PHIKCIPLBS OP THE PEISTAL CODE. 335 have, in riches or reputation, wherewitli to furnish a sufficient guai'antee for their good behaviour. At the same time, the secu- rity which is exacted, being attached to the office, cannot be offensive to anybody. 3rd. This means may have a peculiar utility in certain situations of political affairs, in case of enterprises against the state where many delinquents are concerned. Such men, often rather misled than perverse, nourish exalted sentiments of affection and honour, and in the midst of their revolt against society almost always preserve intimate relations with each other. "When such a con- spiracy is discovered, the conspirators most suspected should be f. conipelled to give security for their conduct. This means, at first sight so feeble, is very efficacious — not only because the princi- pals, seeing themselves watched, take the alarm ; but because the sentiment of honour of which we have spoken furnishes a real or plausible motive, a motive founded upon justice and gratitude, for renouncing the enterprise. V • 4th. When sureties are required to prevent the escape of an accused person, there is the advantage of restraint upon the par- tiality of the judge. Without this condition a corrupt magis- trate, or one of too easy temper, under pretext of a provisional enlargement, might withdraw an accused criminal from corporal or even pecuniary punishment, and change a severe penalty into simple banishment. This abuse becomes impossible when the judge cannot set the accused at liberty except upon sufficient security. Only a single word is necessary as to the penalty to which tte sureties should be subjected. That penalty should be pecuniary, and never anything else. Any afflictive punishment would be rwolting, and would not furnish an indemnity. It is true that a pecuniary punishment may bring on the imprisonment of the sureties, in case they are not able to pay their bonds. But if they were insolvent when they became sureties, they have deceived the court. If their insolvency is posterior to their suretyship, on the occurrence of that event they ought to have withdrawn their security by an application to 336 PEOTCIPIES 01' THE PENAl CODE. the coTirt. However, as in tlie case of other insolvencies, atten- tion must be paid to circumstances ; fraud must he distinguished from misfortune. If the suretyship was the cause of insolvency, in that case particular indulgence is needed. CHAPTEE VI. The Choice of Punishments. In order that a punishment may adapt itself to the rules of pro- portion ahove laid down, it should have the following qualities: — 1st. It ought to he susceptible of more or less, or divisible, in order to conform itself to variations in the gravity of offences. Chronic punishments, such as imprisonment and banishment, possess this quality in an eminent degree. They are divisible into portions of any requisite magnitude. It is the same with pecuniary punishments. 2nd. Equal to Itself. — It ought, to a certain extent, to be the same for aU individuals guilty of the same offence, being made to correspond to their different measures of sensibility. This de- mands attention to age, sex, condition, fortune, individual habits, and many other circumstances ; otherwise the same nominal punishment, being often found too severe for some persons, too mild for others, wiU overshoot the mark, or will fail to reach it. A fine fixed by law will never be a punishment equal to itself, on account of differences of fortune. . Banishment has the same iriponvenience ; too severe for one, to another it is nothing. 3rd. Commeasurable. — If a man has two offences before, his eyes, the law ought to give him a motive to abstain from the greater. He will have that motive, if he can see that the greater offence wiU draw upon him a greater punishment. It ought, then, to be in his power to compare these punishments, to measure their different degrees. There are two methods of fulfilling this object. 1st. By adding to a given punishment another quantity of punishment of the same kind ; for example, to five years' imprisonment for such an PRIlfCIl'lES OF THE PEN At COBB. 337 oiffence, two years' additional for such an aggravation. 2nd. By adding a punishment of a different kind ; for example, to five years' imprisonment for such an offence, public ignominy for such an aggravation. 4th. Analogous to the Offence. — The punishment wiU moj-e •easily engrave itself on the memory, it wiU present itself more strongly to the imagination, if it ' has a resemblance, an analogy to the offence, a common character with it. The lex talionis is admirable in this respect — An eye for an eye, a tooth for a tooth. The most imperfect understanding is capable of connecting these ideas. But these sort of punishments are rarely practicable, and in most cases would be too expensive. There are other means of analogy. Search out, for example, the -motives of offences, and generally you will recognise the dominant passion of the offender, and you may punish him, accord- ing to the proverbial saying, with the instrument of his sin. Offences of cupidity will best be punished by pecuniary flnep, when the wealth of the offender admits it ; offences of insolence, by humiliation ; offences of idleness, by compulsory labour, or forced rest. 5th. Uxem^lary. — A real punishment which should not be ap- parent would be lost upon the public. The great art consists in augmenting the apparent punishment without augmenting the real punishment. This may be accoinplished, either in the selec- tion of the punishments themselves, or by accompanying their execution with striking solemnities. The auto-da-fi would be one of the most useful inventiops of jurisprudence, if instead of being an act of faith it were an act of justice. What is it but a public execution, a solemn tragedy which the legislator presents to the assembled people ; a tragedy truly important, truly pathetic by the sad reality of its catas- trophe, and by the greatness of its object ! The preparations, the scenery, the ornaments, cannot be too studied, since upon them the effect principally depends. The tribunal, the scaffold, the dresses of the officers of justice, the habUiments of the criminals, the religious service, the procession, all the accompani- '' z 338 PEINCTPLBS OF THE PENAX CODE. ments, ought to bear a grave and mournful character. Why should not the executioners be covered with a mourning crape ? The terror of the scene would be increased by it, and at the same time these usefal servants of the state would be concealed from the unjust hatred of the people. Were it possible to keep up the illusion, all might pass in effigy. The reality of punishment is only necessary to maintain the appearance of it. 6th. Economieal. — That is, punishments should have only that degree of severity absolutely necessary to answer their end. All beyond is not only so much superfluous evU, but produces a mul- titude of inconveniences, which intercept the ends of justice. Pecuniary punishments are highly economical, since all the evil felt by him who pays turns into an advantage for him who receives. 7th. Hemissihle or RevoTcabh. — It is necessary that the damage inflicted should not be absolutely irreparable, since unfortunately cases may occur in which the infliction may be subsequently discovered to have been without lawful cause. As long as testi- mony is susceptible of imperfection, as long as appearances may be deceitful, as long as men have no certain criterion whereby to distinguish truth from falsehood, one of the most important pre- cautions which mutual security requires is, not to admit of punishments absolutely irreparable, except upon the clearest evi- dence of their necessity. Have we not seen aU the appearances of crime accumulated upon the head of a culprit whose innocence was demonstrated, when nothing remained but to lament over the mistake of an arrogant precipitation ? "Weak and inconsistent that we are ! We judge like fallible creatures ; we punish as if we could not be deceived ! To these important qualities of punishment three others may be added, of less extensive utility, but to be aimed at when it is possible to procure them without detracting from the great object of example. 1st. It is a great merit in a punishment to contribute to the reformation of the offender, not only through fear of being punished again, but by a change ia liis character and habits. This end PMNCIPIES OP THE PENAL CODE. 339 may be attained by studying the motive wMch. produced the offence, and by applying a punishment which tends to -weaken that motive. A house of correction, to fulfil this object, ought to admit a separation of the delinquents, in order that different means of treatment may be adapted to the diversity of their moral condition. 2nd. Taking away the power of doing Injwry. — It is much easier ,to obtain this end than the preceding. Mutilations and perpetual Imprisonment possess this quality. But the spirit of this maxim leads to an excessive rigour. It is this which has rendered the punishment of death so frequent. If there are cases in which it is possible to deprive the offender of the power of doing injury only by taking away his Hfe, it is upon very extraordinary occasions ; for example, in civil wars, ' There the name of a leader, as long as he lives, is enough to iiiame the passions of a multitude. And, even in such cases, death inflicted upon actions of a "character so equivocal ought rather to be looked upon as an act of hostUity than as a punish- ment. 3rd. To fwnish an indemnity to the injwred party is another nseful quality in a punishment. It is a means of accomplishing two objects at once, — ^punishing an offence, and repairing it : removing the evil of the first order, and putting a stop to alarm. This is a characteristic advantage fii pecuniary punishments. I conclude this chapter by a general observation of the highest importance. The legislator, in the choice of punishments, ought exrefvMy to moid such as shook established prejudices. If there has been formed in the minds of the people a decided aversion to a given kind of punishment, though it has all the other requisite ' faaUties, it ought not to be admitted into the penal code, because it would do more harm than good. In the first place, it is an evil to inspire the public with a painful feeling by the establish- ment of an unpopular punishment. It is no longer the guilty alone who are punished. It is the most innocent and tender- hearted persons upon whom is inflicted a punishment very real, though it has no particular name, by woimding their sensibility, z SS 340 PKINCIPLES OF THE PENAL CODE. braving their opinion, and presenting to them the image of vio- lence and of tyranny. "What can be expected from conduct so injudicious ? The legislator, ~bj despising public sentiment, imperceptibly turns it against himself. He loses the voluntary assistance which individuals lend to the execution of the law ■when they are content with it ; the people, instead of being his assistants, are his enemies. Some endeavour to facilitate the escape of the guilty ; others feel a scruple at denouncing them ; witnesses hesitate to testify ; there is formed insensibly a fetal prejudice, which attaches a kind of shame and of reproach to the service of the law. This general discontent may go iurther ; it sometimes bursts out into open resistance to the officers of justice, or to the execution of sentences. A success against authority is regarded by the people as a victory ; and the unpunished deHn- quent triumphs over the weakness of the laws. What renders punishments unpopular is almost always their bad selection. The more the penal code is conformed to the rules we have laid down, the more it wiU secure the enhghtened esteem of the wise, and an approbation of feeling on the part of the multitude. Such punishments will be thought just and moderate. Everybody will be struck with their propriety, their analogy to offences, and with that scale of gradation by which aggravation of punishment is made to correspond to aggravation of offence, and mildness of punishment to smallness of offence. This kind of merit, founded upon domestic and familiar notions, is level to the comprehension of every mind. Nothing is more fit to give the idea of a paternal government, to inspire confidence, to make pubUc opinion act in concert with authority. When the people are on the side of the laws, the chances of escape are reduced to their lowest term. PBIifCn'LES OP TEE PENAl CODE. 341 CHAPTER Til. The Kinds of Punishments, Theee is no punishment which, taken separately, unites all the requisite qualities. To attain that end, it is necessary to have a choice among many punishments, to vary them, and to make eeveral of them enter into the same infliction. Medicine has no panacea. Different means must he recurred to, according to the nature of disorders and the temperament of the patient. The art of medicine consists in studying all remedies, in comhining them and in putting them into operation according to circum- Btances. The catalogue of punishments is the same with that of offences. The same evil done hy authority of the law, or in violation of the law, will constitute a punishment, or an offence. The nature of the evil is the same, but how different the effect ! The offence spreads alarm; the punishment re-establishes security. Offence is the enemy of all ; punishment is the common protector. Offence, for the advantage of a single person, produces a universal evil; punishment, hy the sufferings of an individual, produces a general good. Suspend punishment, the world becomes a scene of robbery, and society is dissolved. Ee-estabUsh it, and the passions grow calm, order is restored, and the weakness of each individual is sustained by the protection of the public force. The whole matter of punishment may be distributed under the following heads : — 1st. Capital Punishments. — Such as put an immediate end to the Hfe of the offender. 2nd. Afflictive Punishments. — Such as consist in corporal suf- ferings, but which produce only a temporary effect, as flagellation, compulsory fasting, &c. 3rd. Indelible Punishments. — Such as produce a permanent effect upon the body, as branding and amputation. 4th. Ignominious Punishments. — Their principal aim is to expose the offender to the contempt of the spectators, and to make S43 PEIK-CIPLES OF THE PENAL CODE. him be looked upon as unworthy the society of his old friends. The amenie honorahle is an example. 6th. Penitential Funishments.— Destined to awaken the senti- ment of shame, and to expose to a certain degree of censure. They are not seyere or public enough to bring on infamy, nor to make the offender be looked upon as unworthy the society of his former companions. It is, in fact, such chastisements as these that a father has the power to inflict upon his children, and which the most tender father would feel no scruple at inflicting upon the child he most loved. 6th. Chronio Punishments. — Their principal rigour consists in their duration, so that they would be almost nothing if it were not for that circumstance. Banishment and imprisonment are examples. They may be perpetual or temporary. 7th. Punishments simply restrictive. — Those which, without participating in any of the preceding characters, consist in some restraint, some restriction, in being prevented from doing what one would desire ; for example, the prohibition to exercise a cer- tain profession, the prohibition to frequent a certain place. 8th. Punishments simply colnpulsive. — Those which oblige a man to do a thing from which he would wish to be exempted ; for example, the obligation to present one's self at certain times before an officer of justice. This punishment consists not in the thing itself, but in the inconvenience of the constraint. 9th. Pecuniary Punishments. — They consist in depriving the delinquent of a sum of money, or of some article of actual pro- perty. 10th. Punishments quasi pecuniary. — They consist in depriving the offender of a kind of property in the services of individuals, — ^pure and simple services, or services combined with some pecuniary profit. 11th. Characteristic Punishments. — Punishments which, by means of some analogy, present to the imagination a lively idea of the offence. These punishments do not properly form a sepa- rate class ; they are distributed among all the others, ignominious, penitential, afflictive, &c, A characteristic punishment is a PEIirCIPLES OP THE PENAX CODE. 343 manner of inflicting one of the preceding punishments with some circumstance which has relation to the nature of the offence. Suppose a counterfeiter, instead of being punished with death, were condemned to some other punishments, and, among other things, t9 be branded indelibly. If the word counterfeiter were branded on his forehead, and upon each cheek the ilnpress of a piece of current money, this punishment, recalling the offence by a sensible image, would be eminently characteristic. In a house of correction, the delinquents, according to the diversity of their offences, should be obliged to wear emblematical dresses, or other exterior marks of some striking analogy. Thus the notion of their offence would become inseparable from them ; their mere presence would be like a new proclamation of the law ; and the hope of escaping this shame, by resuming a common dress, would be a powerful attraction to engage them to good conduct. CHAPTER VIII. JBt giton/iown variant morbi, varidbinms curies ; Mille mali species, mille sahiUs errwnt. And as diseases vary, aids must vary j A thousand kinds of ill, a thousand cures. Justification of Variety in Punishments. Ve have already seen that the choice of punishments is the result of a multitude of considerations, that they ought to be susceptible of more or less, equal to themselves, commeasurable, analogous to the offence, exemplary, economical, reformative, popular, &c. "We have seen that a single punishment never can have all these qualities, that it is necessary to combine them, to vary them, to assort them, in order to find the composition which we need. If a code founded upon these principles were only a project, it might be regarded as a fine speculation impossible to be realized. Cold and indifferent men who are always armed with a despairing incredulity wherever the happiness of mankind is concerned. 344 PEINCIPLES OF THE PENAL CODE. ■VTOiild not want that common reproach of impracticability, so con- venient to idleness and so flattering to self-love. But the work is done, the plan is executed ; a penal code has been constructed upon these principles, and that code, in which all these rules are scrupulously adhered to, has no quality more remarkable than its clearness, itS simplicity, its precision.* AH penal legislation hitherto known, without having accomplished a moiety of the object, is infinitely more complicated, more vague, more difficult to comprehend. It has been necessary to seek out a great variety of punish- ments, to adapt them to each offence, and to invent new means of rendering them exemplary and characteristic. But the same persons who will agree to the general proposition that these two qualities are essential will perhaps be constantly revolting against their application. Punishments naturally excite antipathy, and even horror, when considered separately from offences. Besides, opinions upon a matter submitted to sentiment and imagination are so floating and capricious, that the same punishment which would excite the indignation of one as too severe, would be blamed by another as too mild and quite inefficacious. I wish here only to anticipate an objection. A penal system ought not to be thought cruel because it includes a great variety of punishments. The multiplicity and the variety of punishments prove the industry and the cares of the legislator. To have but one or two kinds of punishment is an effect of ignorance of prin- ciples, and of a barbarous contempt of proportion. I might mention states iu which despotism is aU-powerful and civilization but little advanced, where it may be said that but one kiud of punishment is known. The more we study the nature of offences and of motives, the more we examine the diversity of characters and circumstances, the more we shall feel the necessity of employ- ing different means to counteract them. * This refers to the penal division of that Vniversal Code, to the con- etrnotion of which Bentham devoted the greater part of his life. It has not been published, and, indeed, was never finished to the satisfaction of the author. — Translator. PBINCIPLES OF THE PENAI CODE. 345 Offences, those interior enemies of society, _ which carry on against it an obstinate and varied war, display all the instincts of mischievous animals : some employ violence; others have recourse to stratagem — they know how to assume an infinity of shapes and everywhere keep up a secret correspondence. If they, have been combated without beinig conquered, if the revolt continues to subsist, it* must be principally ascribed to the defect of legal tactics and of the instruments hitherto employed to suppress them. Certainly, there needs as much talent, calculation, and prudence to defend society as to attack it, and to prevent offences as to commit them. To determine whether a penal code is rigorous, observe how it punishes the most common offences, those against property. The laws everywhere have been too severe upon this point, because, punishments being ill-ohosen and misapplied, it has been attempted to compensate by rigour what was wanting in justice. It is necessary to be less prodigal of punishment as respects offences which attack property, in order to deal it with more severity upon offences which attack the person. The first are susceptible of indemnity ; the others do not admit it, at least not in kind. The evil of offences against property may be reduced to a trifle by means of insurances ; whUe all the treasure of Potosi cannot recall to life one murdered person, or calm the terrors spread by such a crime. But the question is not whether a penal code be more or less severe ; that is a wrong view of the subject. The only question is, whether the severity of the code be necessary or not. It is cruel to expose even the guilty to useless sufferings ; and such is the consequence of pimishments too severe. But is it not more cruel stUl to leave the innocent to suffer ? Such is the result of punishments too mild to be eflScient. We may conclude that variety in punishments is one of the perfections of a penal code, and that the more repugnant to a sensitive heart is the search for these means, the more necessary is it that the legislator should be so penetrated with humanity as to gain this victory over himself.. "Was Sangrado, whose only 346 PErtfCIPLES OP THE PEBTAI CODE. physic consisted in bleeding, more humane than Boerhaaye, who consulted all nature to discover new remedies ?* * The ideas suggested in this chapter are expanded at mnch greater length, and sustained by additional argnmente, in the Theory of Punish- ments, which is one of the works of Bentham, compiled and published by Domont. N^otwithstanding all the reasonings of Bentham npon the snb- ject of diversify of punishment, I am constrained, by his own principles, to adopt the opinion that imprUomnent, variously modified, is the only punishment which the legislator need employ, — ^mth the exception of those satisfactions, pecuniary and honorary, which ought to fijrm a part of every code, and which in a certain sense may be regarded as punish- ments. Imprisonment combines all the qualities enumerated by Bentham as desirable in a punishment. 1. It is peculiarly siueeptible of more or less. 2. It may easily be made egtial to itself — that is, uniform in its severity as respects fhe punishment of different o&nders guilty of the same offence. 3. It is commeaswrahle in a high degree. 4. It is exemplary, inasmnch as a gaol is a constant warning to offenders. 5. It is eam&micaZ, or may easily be made so by proper arrangements, and that too in more senses than one ; for while it is considered as a punishment both by the o&nder and the public, instead of iTiflif^Hng any injury on the offender, in mai^ cases it may be made to confer upon him a high d^ree of benefit, both pl?- sical and moral; and as respects the pecnniaiy expense to the public, every gaol, mere houses of detention excepted, might be made, and ought to be made, to support itsel£ 6. It is remissible, and quite as revocable as any other punishment. 7. It also may be regarded as analogous to the offence, since every offence consists in an abuse of liberty and power, and is properly punished by a restraint of Kberiy and power. It also possesses in a high degree two of the other qualities esteemed by Bentham. as important, though less so than those above mentioned. 1. It has a tendency to reform the offender, by removing him from the tempiations of liberty, and giving virtuous motives an opportunity to regain an ascendancy. 2. It takes away, so long as it lasts, which may be for a long time, the power of doing injury. It is a point of the highest importance that severity of pnnishment should be proportioned to magnitude of ounces, and that according to a scale simple, and easily to be understood. Yarieiy of kinds in punish- ment seems to be inconsistent with this essential object, for by what common measure shall we calculate them ? — how many lashes are equi- valent to how many days of imprisonment ? This is a matter of &ncy upon which no two men will agree. PEDTCIPLES OF THE PENAl CODE. 347 CHAPTER IX. Examination of some Common Punishments. Apflictiye PuifisHMENTS. — These are not good for all offences, because they cannot exist in a slight degree, or at least only in case of persons in a state of the lowest degradation. Every cor- poral punishment publicly inflicted is infamous. Inflicted in private, it is less infamous, but it is not exemplary. The most common afflictive punishment is whipping. In its ordinary application, this punishment has the inconvenience of not being equal to itself; it varies from the slightest pain to the most atrocious torture, and may even result in death. Everything depends upon the kind of lash, the force of the application, and the temperament of the individual. The legislator who orders this punishment knows not what he does ; the judge is nearly as ignorant ; its ' execution will always be in the highest degree arbitrary and uncertain. > In England, whipping is usual for such thefts as juries, by a humane perjury, declare to be below the value of a shilling. This punishment is a revenue to the execu- tioner. K the delinquent suffers, it is only because he has no money wherewith to purchase the impunity of a mock infliction. Indelible Ptotishmeitts. — Indelible afflictive punishments, taken separately, are not capable of graduation. The mildest of them has a very high degree of severity. Some, such as branding, only disfigure the person ; others take away the use of some limb ; others consist in mutilations, as the loss of the nose, Imprisonmeiit, moreoTer, has the decided advantage of not inflaming the vindictive feelings or giving the sanction oi the law to revolting cruelties. Who can doubt that barbarous pnnisliments tend to barbarize the people which inflicts them ? 1 might suggest many other considerations in favour of adopting imprisonment as the only kind of punishment, did the limits of a note permit it. It must be confessed, however, that imprisonment has been fitted to serve for that purpose only by reason of those vast improve- ments lately introduced into prison discipline, of which Bentham, next to Soward, deserves the credit. See the treatise entitled PcmopHque, compiled by Dnmont from the writings of Bentham. — Translator. 348 PBHTCIPLES OF THE PENAL COBB. the ears, the feet, or the hands. Mutilation of the organs which are necessary for labour ought not to be inflicted upon common offences, such as those which spring from want, as theft, smug- gling, &c. What can the offenders do after being maimed? If the state maiatains them the punishment becomes too expen- sive ; if they are left to themselves, it is the same as condemning them to despair and death. Penal mutUations have two incon- veniences; they are irremissible, and they are apt to be con- founded with natural accidents. There is no apparent difference between him who has had an arm cut off for a crime, and him who has lost an arm in the service of his coimtry. An artificial and evident brand ought always to be added, to be the certificate of offence and the safeguard of misfortune. These punishments might be suppressed altogether ; and if used at all, it should only be for some very rare offences, where they have the recommenda- tion of analogy. Indelible brands are a powerful means of which a bad use has been made. Among offenders convicted of theft, or of furtive concealment, many have only yielded to a transient temptation, and might return to virtue if the nature of the punishment had not corrupted them. In such cases there should be no indelible brand, no infamous punishment. That would be to take away the hope of re-establishing their reputation, and redeeming a moment of error. If an indelible brand is stamped upon coun- terfeiters, for example, it is a sign whicii excites distrust of their honesty, but which does not deprive them of the means of live- lihood. Despised as rogues, they will stiU be employed as ingenious workmen. But if a man is branded for a first theft, what wiU become of him? "Who will employ him? What would it avail him to be honest? He is compelled to be a knave. An indelible brand is only useful to mark a dangerous offender, who will cease to be dangerous provided he is known, or to secure the execution of another punishment. When the offence is infamous, branding ought to accompany perpetual imprison- ment, to prevent the flight of the prisoner. It binds him Uke. a PEINCIPLES OF THE PENAL CODE. 349 chain, for it makes tte prison his asylum, and he would be worse off out of it than in it. To make these marks permanent and distinguishable, they should be imprinted by coloured powders pricked into the skin, and not with a hot iron. Iqnominious Pttnishmenis. — ^Infamy is one of the most salu- tary ingredients in penal pharmacy : but ideas upon this subj ect are very confused, and the means employed very imperfect. Accord- ing to the notion of the lawyers, it would seem that infamy was a homogeneous thing, indivisible, an absolute and invariable quantity. If it were so, the employment of this punishment would be almost always impolitic and unjust ; for it is equally apphed to very unequal offences, and to some offences which ought not to be visited with it at all. Infamy, well managed, is very susceptible of graduation. It is, in a moral view, what defile- ment is in a physical. It is one thing to have a spot on one's clothes, and quite another to be covered vnth mud. Loss of honour is another phrase in common use, but not less deceptive. It includes two false suppositions : one, that honour is a good of which all men possess a certain share ; the other, that it is entirely in the power of the law, and can be taken away at pleasure. The term dishonour, which differs from infamy in not excluding the idea of more or less, would be more appropriate. Infamy, as it is commonly employed, bears rather upon the criminal than the crime. If it bore upon the offence, its effect would be more certain, more durable, and more efScacious. It might then be proportioned to the nature of the case. But in order to attain that end it is necessary that a particular kind of dishonour should be found for every kind of offence. AU this cannot be effected, except by a new apparatus of jus- tice ; inscriptions, emblems, dresses, pictural representations ; signs which speak to the eyes, which strike the imagination through the senses, which form associations not to be effaced. It is thus that public indignation, which is but too apt to be directed against the laws and the judges, may be concentrated upon the offender and the offence. The legislator should not disdain to borrow from the theatre imposing shows and repre- 350 PEUfCIPLES OP THE PENAL CODE. sentafjons. To surround the criminal witli symbols of his offence ■would not be, as some may incline to represent it, a vain display of power, a ridiculous parody : it would be an instructive exhi- bition which would announce the moral objects of punishment, and would render justice more respectable by showing it, even in the sad function of punishment, aiming rather to impress a great lesson than to satisfy a spirit of vengeance. The pillory, used in England, is of all punishments the most unequal and unmanageable. The delinquent is abandoned to the caprice of individuals, and this singular infliction is sometimes a triumph, and sometimes it is death. An author was condemned to it, some years since, for what is called a Uhel The platform upon which he was placed became a kind of lyceum ; and the whole time passed away in compliments between him and the spectators. In 1760, a bookseller was put in the pillory for hav- ing sold some impious or seditious work. A subscription was opened for him, while he was stUl standing in it, and soon amounted to upwards of a hundred guineas. "What an affront to the law ! Lately, a man condemned to the same punishment for a lascivious offence, was murdered by the populace under the eyes of the police, who did not even attempt to defend him. Mr. Burke had the spirit to denounce this abuse in the House of Commons. "The man who undergoes a punishment," he said, " is still under the protection of the law, and ought not to be abandoned as a prey to ferocity." The orator was applauded, but the abuse remains ; yet a simple iron grating to inclose the criminal would prevent all such acts of barbarity. Cheonic PtmisHMENTS. — Chronic punishments, such as ban- ishment and imprisonment, are adapted to many offences ; but they demand a particular attention to the circumstances which affect individual sensibility. Banishment would be an infliction in the highest degree unequal if it were decreed without excep- tion. Its severity depends upon the condition and the fortune of those who xmdergo it. Some have no reason to be attached to their country ; others would be overwhelmed with despair at the idea of leaving their property and their home. Some have fami- PEUrCIPLES OF THE PENAL CODE. 351 lies, otters have no such ties. One would be deprived of every resource if compelled to leave his country, to another banishment ■would be a lucky escape from his creditors. Age and' sex make a great difference. Much latitude must be allowed to the judge, who can be directed only by general instructions. The English, before the independence of America, were in the habit of transporting to the colonies a numerous class of offenders. For some this transportation was slavery, for others a party of 'pleasure. A rogue, who had a mind to travel, was a fool if he did not commit some offence to insure himself an outfit and a free passage. The more industrious of the convicts gained pro- perty and a home in the colonies. Those who knew nothing, except how to steal, not being able to exercise their art with any success in a country of which they did not know even the geography, soon ended their career on the gallows. Once con- it demned and transported, their lot was unknown. Though they died of disease or famine, nobody cared. Thus the whole effect of example was lost, and the principal end of punishment was wholly neglected. The transportation to Botany Bay, which is now ia use, answers its end no better. It has all the faults whiph a punishment can have, and none of the qualities which it ought to have. If an establishment in a distant country were offered to the citizens, on condition of attaining it by a violation of the laws, what absurdity ! what madness ! But transportation must pre- sent itself to many wretches as an advantageous offer, of which they can take advantage only by committing an offence. Thus the law, instead of counterbalanding the temptation, adds, in many cases, to its force. As to imprisonment, it is impossible to give any opinion with respect to that punishment, until all that concerns the structure and the internal government of prisons has been determined with the greatest exactitude. Prisons, with the exception of a small number, include every imaginable means of infecting both body and mind. Consider merely the state of forced idleness to which the prisoners are reduced, and this punishment is excessively 352 PKINCIPLES OP THE PJSNAl CODE. expensive. "Want of exercise enervates and enfeebles their facul- ties, and deprives their organs of suppleness and elasticity ; de- spoiled, at the same time, of their characters and of their hahits of labour, they are no sooner out of prison than starvation drives them to commit offences. Subject to the subaltern despotism of men who for the most part are depraved by the constant spec- tacle of crime and the habit of tyranny, these wretches may be delivered up to a thousand unknown sufferings, which aggravate them against society, and which harden them to the sense of punishment. In a moral point of view, an ordinary prison is a school in which wickedness is taught by surer means than can ever be employed for the inculcation of virtue. Weariness, revenge, and want preside over these academies of crime. All the inmates raise themselves to the level of the worst ; the most ferocious inspires the others with his ferocity ; the most cunning teaches his cunning to all the rest ; the most debauched inculcates his licentiousness. All possible defilements of the heart and the imagination become the solace of their despair. United by a common interest, they assist each other in throwing off the yoke of shame. IJpon the ruins of social honour is built a new honour, composed of falsehood, fearlessness under disgrace, for- getfulness of the future, and hostility to mankind ; and thus it is that unfortunates, who might have been restored to virtue and to happiness, reach the heroic point of wickedness, the sublimity pf crime. A convict, after having finished his term of imprisonment, ought not to be restored to society without precautions and with- out trial. Suddenly to transfer him from a state of surveillance and captivity to unlimited freedom, to abandon him to all the temptations of isolation and want, and to desires pricked on by long privation, is a piece of carelessness and inhumanity which ought at length to attract the attention of legislators. At London, when the hulks in the Thames are emptied, the malefactors at that jubilee of crime rush into the city like wolves, who after a long fast have succeeded in entering a sheep-fold ; and until aU these plunderers have been apprehended for new offences, there PEINCIPLES OE THE PENAL CODE. 353 is no security upon the higtways, no safety in the streets of the metropolis. ii'PECTJNiAitY PuNisHMEiirTS. — Thsse iuflictions have the triple advantage of being susceptible of graduation, of fiiMUing the end of punishment, and of serving as an indemnity to the injured party. But it must be recollected that a pecimiary punishment, if the sum is fixed, is in the highest degree unequal. This con- sideration, so obviously true, has been neglected by aU legislators. Fines have been determined without any regard to the profit of the offence ; to its evil, or to the "wealth of the offender. Every- body recollects the story of that insolent young Eoman, who amused himself by lashing aU the passers-by, while a slave of his at the same time offered them a coin, fixed by the laws of the Twelve Tables, as the fine for that offence. Pecuniary punishments should always be regulated by the for- tune of the offender. The relative amount of the iine should be fixed, not its absolute amount ; for such an offence, such a part of the offender's fortune ; with such modifications, however, as would meet the difficulties liable to attend a literal execution of this rule. Ptotishmek-ts simply Eesteiciive. — There is nothing in penal legislation more ingenious than hanishment from the presence of the' irywred party. This punishment is suggested by the old French law, and some traces of it may be found in the Danish code. With some improvements, it would offer an excellent remedy for offences growing out of individual .hostilities, from which the public in general has nothing to fear. This punish- ment affords a triumph to the oppressed over the oppressor, and re-establishes, in the mildest manner, the preponderance of injured innocence over insolent force. Besides, it prevents the renewal of quarrels, and takes away from the aggressor the power of doing harm. But to put in operation a means so closely con- nected with honour, requires a scrupulous attention to the con- dition of individuals. Capital Punishments, — The more attention one gives to the punishment of death, the more he will be inclined to adopt the 354 PEINCIPIES OF THE PEISTAL CODE. opinion of Beccaria, — that it ought to be disused. This subject is so ably discussed in Hs book, that to treat it after him is a ■work that may well be dispensed with. Those who wish to see, at a single glance, all that can be said for and against it, have only to turn back to the chapter containing the table of qualities desirable in a punishment. Whence originated the prodigal fury with which the punish- ment of death has been inflicted ? It is the effect of resentment which at first inclines to the greatest rigour ; and of an imbecility of soul, which finds in the rapid destruction of convicts the great advantage of having no further occasion to concern one's self about them. Death ! always death ! It requires neither the medita- tions of genius nor resistance to the passions. It is only to yield one's self to them, and we are carried at once to that fatal term. Is it said that death is necessary to take from an assassin the power of reiterating his offence ? For the same reason, then, we ought to destroy the frantic and the mad, from whom society has everything to fear. If we can guard against these, why not against assassins ? Is it said that death is the only punishment which can outweigh certain temptations to commit homicide ? These temptations can only arise from hostility or cupidity ; and do not these passions, from their very nature, dread humiliation, want, and captivity more than death ? I should astonish the reader were I to expose to him the penal code of a nation celebrated for its humanity and its enlighten- ment. "We should expect to find in it the most exact proportion between offences and punishments ; but, in fact, that proportion is continually outraged or forgotten, aM the punishment of death is lavished upon the most trifling offences. The mildness of the national character is in contradiction to the laws, and, as might be expected, it is that which triumphs ; the laws are eluded ; pardons are multiplied; offences are overlooked; testimony is excluded ; and juries, to avoid an excess of severity, often fall into excess of indulgence. Thence results a system of penal law, PEINOIPLES or THE PENAL CODE. 355 iricolierent, contradictory, uniting violence to -weakness, dependent on the humour of a judge, varying from circuit to circuit, some- times sanguinary, sometimes null. EngUah law-makers have not yet adopted imprisonment joined to labour — a sort of punishment good in so many respects. In- stead of compulsive occupation, they reduce their prisoners to coiaplete idleness. Is this by design ? Ifo ; it is doubtless by habit. Things have been found upon that footing ; it has been disapproved, but has not been changed. There needs pecuniary advances, vigUanee, and sustained attention, to combine imprison- ment with labour ; none of these are needed to shut up a man, and leave him to himself. CHAPTEE X. Of the pardoning Power. Vaii punishment lacks in certainty must be made up in severity. The less certain a punishment is, the severer it must be ; the more certain it is, the less it need be severe. What shall be said of a power created for the very purpose of making pimishment uncertain? Such, however, is the direct consequence of a power to pardon. In the species, as in the individual, the age of passion precedes that of reason. Anger and vengeance have dictated the earliest penal laws. "When these barbarous enactments, founded upon caprices and antipathies, begin to shock an enlightened pubKc, the power of pardoning offers a safeguard against the sanguinary rigour of the laws, and becomes, so to speak, a comparative good ; sad nobody inquires whether this pretended remedy is not, in fast, a new evil. • How many eulogiums have been bestowed upon clemency ! It ^ been repeated a thousand times that it is the first virtue of a sovereign. Doubtless, if the crime be only an attack upon the sovereign's self-love ; if the question be of a satire upon him or A. A 2 356 PEINCIPIES OF THE PENAX CODE. his favoTirites ; the moderation of a prince is meritorious, the pardon which he grants is a triumph over himself. But when the question is of an oflFence against society, a pardon is not an act of clemency ; it is a mere piece of partiality. In cases where punishment -would do more evil than good, as after seditions, conspiracies, and puhlic disorders, the power of pardoning is not only useful, it is necessary. These cases being foreseen and pointed out in a good legislative system, pardon applied to them is not a violation, it is an execution of the law. But pardons without motive, effects of the favour or the facility of a prince, impeach either the laws or the government : the laws, of cruelty to individuals ; or the government, of cruelty to the public. Eeason, justice, and humanity must be wanting some- where ; for reason is never in contradiction with itself; justice cannot destroy with one hand what it has done with the other ; humanity cannot require that punishment should be established for the protection of innocence, and that pardons should be granted for the encouragement of crime. The power of pardoning, it has been said, is the noblest pre- rogative of sovereignty. But may not that prerogative sometimes turn to the disadvantage of him by whom it is exercised ? If, instead of gaining for the prince a more constant affection on the part of his subjects, it exposes him to caprices of judgment, to clamours, and to libels ; if he can neither yield to solicitations without being suspected of feebleness, nor show himself inexorable without being accused of severity, where then is the splendour of this dangerous right ? It would seem that a just and humane prince must often dread the exposure to this combat between public and private virtues. Homicide ought, at least, to make an exception. He who has the right to pardon that offence is master of the Ufe of every citizen.* * To prevent the abuse of this power, it woiild suffice to require that its exercise should be accompanied by an exposition of motives. Where capital punishments are in use, it would be better to preserve the power of pardoning, even without restrictions, than to aboUsh it entirely. PEINCrPLES OF THE PENAL CODE. 367 To sum up. If tte laws are too severe, the power of pardoning is a necessary corrective ; but tliat corrective is itself an evU. Make good laws, and there wiU. be no n^ed of a magic wand which has the power to annul them. If the punishment is neces- sary, it ought not to be remitted ; if it is not necessary, the con- vict should not be sentenced to undergo it. SdS PART FOURTH. INDIEECT MEANS OF PREVENTING OFFENCES. INTRODUCTION. In all the sciences ttere are branches wHch have been cultivated more tardily than others, because they demand a longer series of observations and meditations more profound. It is thus that mathematics have their transcendental or higher branch — that is, a new science, as it Trere, above ordinary science. The same distinction, to a certain extent, may be applied to the art of legislation. "What means shall be adopted to prevent inju- rious actions ? The first answer, which presents itself to every- body, is this : " Forbid those actions ; punish them." This method of combatting offences being the most simple and the first adopted, every other method of arriving at the same end is, so to speak, a refinement of the art, and its transcendental branch. That branch consists in devising a course of legislative acts adapted to prevent offences — in acting principally upon the incli- nations of men, in order to turn them from evil and to impress upon them the direction most useful to themselves and to others. The first method — ^that of combatting offences by punishments — constitutes direct legislation. The second method — that of combatting offences by preventive mewne — constitutes a branch of legislation which may be called indirect. The sovereign acts direethf against offences when he prohibits PEINCIPLES OF IHE PENAI CODE. 359 them iadividually under special penalties. He acts indirectly when he takes precautions to prevent them. By direct legislation the evil is attacked in front. Indirect ; legislation attacks it obliquely. In the first case, the legislator i. declares open war against the enemy, points him out, pursues him, meets him foot to foot, and carries his defences sword in hand. In the second case, he does not announce his whole . design ; he works underground, he procures intelligence, he seeks to prevent hostile enterprises, and to keep still in his alliance those who may have formed secret intentions against him. Speculative writers upon politics have had glimpses of this art ; but in speaking of this second branch of legislation they do not evince any clear idea of it. The first branch has been a long time reduced to system, the good part of it as weU as the bad. The second branch has never been thoroughly examined ; nobody .has undertaken to treat it with method, to arrange it, to classify it— ia one word, to master it in its whole extent. It is yet a new subject. Writers who have composed political romances tolerate direct legislation as a necessary evU; it is a choice of evils to which they submit, but as to which they never express a very lively interest. But when they come to speak about the means of pre- venting offences, of rendering men better, of perfecting morals, their imagination grows warm, their hopes are excited; one would suppose they were about to produce the great secret, and that the human race was going to receive a new form. It is because we have a more magnificent idea of objects in proportion as they are less familiar, and because the imagination has a loftier flight amid vague projects which have never been subjected to the limits of analysis. Major e longinquo reverentia—fhe greater distance, the greater reverence — this is a saying as applicable to ideas as to persons. A detailed examination will reduce all these iadefinite hopes to the just dimensions of the possible; and if ia the process we lose fictitious treasures, we shall be well indem- nified by the certainty of what remains. To distinguish exactly what appertains to these two branches,' 360 PEIlfCJIPI.ES OF THE PENAL CODE. it is necessary to begia by forming a just idea of direct legislation. It proceeds, or ougbt to proceed, in this way : — 1st. The cboice of acts to be erected into offences. 2nd. The description of each offence, as murder, theft, pecu- lation, &o. 3rd. An exposition of the reasons for attributing to these acts the quality of offences — reasons ■which ought to be deduced from the single principle of utility, and consequently to be consistent with themselves. 4th. The assigning of a competent punishment for each offence. 5th. An. exposition of the reasons which justify these pimish- ments. The penal system, though it be made as perfect as possible, is defective in several respects : — 1st. The evil must exist before the remedy can be applied. The remedy consists in the application of punishment, and punishment cannot be applied till offence is committed. Every new instance of punishment inflicted is an additional proof that punishment lacks efficacy and leaves behind it a certain degree of danger and alarm. 2nd. Punishment itself is an evU, though necessary to prevent greater evils. Penal jus- tice, in the whole course of its operation, can only be a series of evils — evUs arising from the threats and constraint of the law, evils arising from the prosecution of the accused before it is pos- sible to distinguish innocence from guilt, evUs growing out of the infliction of judicial sentences, evils from the unavoidable conse- quences which result to the innocent. 3rd. The penal system is not able to reach many injurious actions, which escape justice either by their frequency, the facUity of concealing them, by the difficulty of defining them, or finally by some vicious turn of public opinion by which they are favoured. Penal law can ope- rate only within certain limits, and its power extends only to palpable acts, susceptible of manifest proof. This imperfection of the penal system has caused new expe- dients to be sought for to supply its deficiencies. These expe- dients have for their object the prevention of offences, either by preventing the acquisition of the knowledge necessary to their PEINCIPIES OF IHB PENAL CODE. 361 commission or by taking away the powmr or the will to commit them. The most numerous class of these means relates to the art of directing the inclinations by weakening the seductive motives which excite to evil, and by strengthening the tutelary motives which impel to good. Indirect means, then, are those which, without having the : -ehaiacter of punishments, act upon man physically or morally, to dispose him to obey the laws, to shield him from temptations, to gpvern him by his inclinations and his knowledge. These indirect means not only have a great advantage on the side of mildness, but they succeed in a multitude of cases in which direct means will not answer. AU modern historians have remarked how much the abuses of the Catholic Church have diminished since the establishment of the Protestant religion. "What popes and councils could not do by their decrees a fortunate rivalry has accomplished without difficulty ; and scandals which would afford to hostile sects a matter of triumph have been care- fully avoided. The indirect means of free competition among rehgions has more power to restrain and reform the clergy than all positive laws. Let us take another example from political economy. Attempts have been made to reduce by law the price of merchandise, and . particularly the interest of money. It is true that high prices are an evil only in comparison with some good of which they prevent the enjoyment ; but such an evil as they are, there is reason for seeking to diminish it. To effect that purpose, a mul- titude of restrictive laws have been devised, a fixed tariff of prices, a legal rate of interest. And what has been the conse- quence ? These regulations have always been eluded ; punish- ments have been multiplied; and the evU, instead of being diminished, has become greater. The only efficacious means is an indmrect one, which few governments have had the wisdom to \ employ. To grant all merchants and capitalists a free right of I competition, to intrust to them the business of making war upon each other, of underbidding each other, and of attracting pur- chasers by the offer of more advantageous terms — such is this 363 PEINCIPIES OF THE PENAL CODE. means. Pree competition amounts to the same thing as the grant of a reward to him who furnishes merchandise of the best kind at the lowest price. This immediate and natural reward, which a multitude of competitors flatter themselves with the hope of obtaining, acts with more efficacy than a distant punishment which every one expects to escape. Before entering upon the exposition of these indirect means, it should be observed that the classification here employed is, to a certain extent, arbitrary, and that several of them may be pro- perly arranged under different heads. To distinguish them invariably, one from the other, would require us to enter upon a metaphysical analysis, very subtle and very fetiguing. It is enough for the present purpose that all indirect means may be placed under one or the other of the heads proposed, and that the attention of the legislator is directed to the principal sources whence they may be derived. There is one more preliminary remark of essential importance. Among the variety of means about to be explained, there is none which is recommended as especially flt for any particular govern- ment, and still less for all government in general. The special advantage of each measure, considered by itself, wiU be indicated under its proper head ; but each may have relative inconveniences, which it is impossible to determine without knowing the circum- stances of the particular case. It ought to be well understood that the object here proposed is not to advise the adoption of such or such a measure, but simply to bring it into view, and to recommend it to the attention of those whose province it is to judge of its applicability. CHAPTEK I. Means of talcing away the Physical Power to do Harm. When the wiU., the knowledge, and the power necessary to the performance of an act concur, that act is Of necessity performed. Inclination, knowledge, power, — these, then, are the three points at PKINCIPLES OF THE PElfAI, CODE. 363 which it is necessary to apply the influence of law, in order to determine the conduct of men. These three words contain in the abstract the sum and substance of all that can be done by legislation, direct or indirect. I begin with power, because means in this respect are more simple and more limited, and because, in those cases in which we can succeed in taking away the power to do harm, we have accom- phshed everything. Success is certain. Power may be distinguished into two kinds: 1st. Internal power, that which depends upon the intrinsic faculties of the indi- vidual ; 2nd. Sxternal power, that which depends upon persons and things external to the individual, but the aid of which he must have, in order to act. As to internal power, that which depends upon the faculties of the individual, it is scarcely possible to deprive a man of it with advantage. The power of doing evil is inseparable from the power of doing good. With his hands cut off, a man cannot . steal, but neither can he work. Besides, these privative means are so severe that they cannot be employed except upon criminals already convicted. Imprison- ment is the only one of them that can be justified, in certain cases, to prevent an apprehended offence. The legislator will find greater resources for the prevention of offences by turning his attention to the material objects which aid their commission. There are cases in which the power of doing harm may be taken away, by excluding what Tacitus calls writamenta malorum, irritations to evil, — the subjects, the instruments of offence. In such cases, the policy of the legislator may be compared to that of a nurse ; iron bars at the windows, grates aroimd the fire, the care of keeping sharp and dangerous instruments from the hands of children, are means of the same kind as the prohibition to sell and to make tools for the fabrication of false money, venerific drugs, arms easy to be concealed, dice, or other instruments of prohibited games, and the prohibition to make or to have certain nets for the chase, or other instruments for trapping wild game. 363 PEINCIPLES OF THE PENAL CODE. means. Free competition amounts to the same thing as the grant of a reward to him who furnishes merchandise of the best land at the lowest price. This immediate and natural reward, which a multitude of competitors flatter themselves with the hope of obtaining, acts with more efficacy than a distant punishment which every one expects to escape. Before entering upon the exposition of these indirect means, it should be observed that the classification here employed is, to a certain extent, arbitrary, and that several of them may be pro- perly arranged under different heads. To distinguish them invariably, one from the other, would require us to enter upon a metaphysical analysis, very subtle and very fetiguing. It is enough for the present purpose that all indirect means may be placed under one or the other of the heads proposed, and that the attention of the legislator is directed to the principal sources whence they may be derived. There is one more preliminary remark of essential importance. Among the variety of means about to be explained, there is none which is recommended as especially fit for any particular govern- ment, and stiU less for all government in general. The special advantage of each measure, considered by itself, will be indicated under its proper head ; but each may have relative inconveniences, which it is impossible to determine without knowing the circum- stances of the particular case. It ought to be well understood that the object here proposed is not to advise the adoption of such or such a measure, but simply to bring it into view, and to recommend it to the attention of those whose province it is to judge of its applicability. CHAPTER I. Means of talcing amay tJie Physical Power to do Sarm. "When the wiU, the knowledge, and the power necessary to the performance of an act concur, that act is Of necessity performed. Inclination, JcnowMffc, power, —these, then, are the three points at PEINCTPIES OF THE PENAL CODE. 363 which, it is necessary to apply the influence of law, in order to determine the conduct of men. These three words contain in the abstract the sum and substance of all that can be done by legislation, direct or indirect. I begin with power, because means in this respect are more simple and more limited, and because, in those cases in which we can succeed in taking away the power to do harm, we have accom- plished everything. Success is certain. Power may be distinguished into two kinds : 1st. Internal power, that which depends upon the intrinsic faculties of the indi- vidual ; 2nd. External power, that which depends upon persons and things external to the individual, but the aid of which he must have, in order to act. As to internal power, that which depends upon the faculties of the individual, it is scarcely possible to deprive a man of it with advantage. The power of doing evil is inseparable from the power of doing good. With his hands cut off, a man cannot steal, but neither can he work. Besides, these privative means are so severe that they cannot be employed except upon criminals already convicted. Imprison- ment is the only one of them that can be justified, in certain cases, to prevent an apprehended offence. The legislator wiU find greater resources for the prevention of offences by turning his attention to the material objects which aid their commission. There are cases in which the power of doing harm may be taken away, by excluding what Tacitus calls irritamenta malorum, irritations to evil, — the subjects, the instruments of offence. In such cases, the policy of the legislator may be compared to that of a nurse ; iron bars at the windows, grates around the fire, the care of keeping sharp and dangerous instiuments from the hands of children, are means of the same kind as the prohibition to sell and to make tools for the fabrication of false money, venerifio drugs, arms easy to be concealed, dice, or other instruments of prohibited games, and the prohibition to make or to have certain nets for the chase, or other instruments for trapping wild game. 364 PMNCIPLES OF THE PENAI CODE. Mahomet, not trusting to the restraining power of reason, wished to take away from men the power of abusing strong drinks ; and if we consider the climate of warm countries, where wine renders men furious rather than stupid, we shall find per- haps that the total prohibition is a milder method of procedure than a permission which produces a numerous class of offences, and consequently of punishments. Imposts upon spirituous liquors fulfil, in part, the same end. In proportion as the price is raised above the capacity of the most numerous class to purchase, they are deprived of the means of giving themselves up to intemperance. Sumptuary laws, inasmuch as they prohibit the introduction of certain articles which are objects of jealousy to the legislator, may be referred to this head. It is this which has rendered so famous the legislation of Sparta; the precious metals were banished; strangers were excluded; travelling was not per- mitted. At Geneva there was a prohibition to wear diamonds, and the number of horses which an individual might keep was limited.* There might be mentioned under this head many English statutes relative to the sale of spirituous liquors. It is pro- hibited to expose them to sale in the open air. A licence must be obtained, and paid for, &c. The prohibition to open certain places of amusement upon Sunday appertains to this head. To the same class belong the measures adopted to destroy libels, seditious writings, obscene figures exposed in the streets, and to prevent the printing and publication of works thought to have a pernicious tendency. The ancient police laws of Paris forbade a servant to wear a sword, or even to carry a cane or staff. This perhaps was a simple distinction of rank ; perhaps it was a measure of security. "Where a particular class of the people is oppressed by the sovereign power, prudence requires that they should be forbidden * To cite these usages is not to propose them as models. They are cited to show under what class such laws ought to be arranged. PRINCIPLES OP TffE PEN At. CODE. 363 to carry arms. The greater injury becomes a justification for the smaller injury. The Philistines obliged the Jews to come to them every time they wanted to sharpen their axes and scjrthes. In China the fabrication and the sale of arms is reserved exclu- sively to the Tartar-Chinese. By a statute of George III., all persons, except traders, are for- bidden to keep in their houses more than fifty pounds weight of gunpowder, and traders are not allowed to have more than two hundred pounds weight on hand at one time. The reason assigned is the danger of explosions. In the statutes relating to high roads and turnpikes, the number of carriage horses is limited to eight, with an exception in favour of certain trans- portations, and of artillery and munitions of war, for the service of the king. The reason assigned is the preservation of the roads. "Whether any of these measures, and others of the same sort, have a political object behind the reasons assigned for them, that is what I do not pretend to say ; but it is certain that such expedients may operate to take away the means of revolt, and to diminish facilities for smuggling. Among the expedients of this sort, I know none more happy or more simple than that commonly used in England to render diffi- cult the theft of bank-notes. When it is necessary to send them by a messenger or the post, they are cut into two parts, which are sent separately. The theft of half a bank-note would be useless, and the difficulty of stealing the two parts, one after the other, is so great that the offence is almost impossible. There are professions for the exercise of which proofs of capacity are required. There are others which the laws render incompatible with each other. In England many offices of jus- tice are incompatible with the profession of an attorney; it is feared that the right hand might be secretly labouring for the left. Persons who contract with the administration for the supply of commissary stores, and the provisioning of the fleet, cannot have a seat in parliament. These persons may be defaulters, and be subject to parliamentary investigation ; it is not proper, therefore, that they should be members. But there axe stronger reasons yet 366 PEINCIPIES OF THE PENAL COBE, for ttis exclusion, derived from the danger of increasing minis- terial influence. CHAPTER II. Prohilition of acquiring Knotvleige - which may le iiMrnei to a had purpose. I MENTION tMs kind of policy only to condemn it. It lias pro- duced the censorship of the press ; it has produced the inquisition ; and wherever it is employed it wUl always produce the brutaliza- tion of mankind. I propose here to show, — 1st, that the diffusion of knowledge is not injurious on the whole, the offences of refinement being less fatal than those of ignorance ; 2nd, that the most advan- tageous method of combatting the evil which may result from a limited degree of knowledge is to augment its quantity. In the first place, the diffusion of knowledge is not injurious on the whole. Some writers have thought, or seemed to think, that the less men know the better off they will be : that the less enlightened they are, the less acquaintance they wiU have with the objects that serve as motives to evil, or as means of commit- ting it. It is not surprising that fanatics have entertained this opinion, since there is a natural and constant rivalry between the knowledge of things real, useful, and intelligible, and the know- ledge of things unintelligible, imaginary, and useless. But these notions about the dangers of knowledge are sufficiently common among the mass of mankind. The age of gold, — that is, the age of ignorance, — is spoken of with regret. To put in a clear light the error upon which these notions rest, there needs a more precise method of estimating the evil of an offence than any hitherto employed. It is not astonishing that offences of refinement are more odious than offences of ignorance, — that is, of brutal violence. In determining the greatness of offences, the principle of anti- pathy has been more followed than the principle of utUity. Antipathy gives more attention to the apparent depravity of PEINCrPLES OP THE PENAL CODE. 367 character indicated by the offence than to anything else. This, in the eyes of passion, is the salient point of the action, in com- parison with which the strict examination of utility always appears too cool. Now, the more knowledge and refinement an offence indicates, the more proof there is of reflection on the part of the offender, and of depravity in his moral disposition. But the evil of an offence, the sole object which the principle of utility regards, is not determined by depravity of character alone ; it depends immediately upon the sufferings of the persons who are affected by the offence, and upon the alarm which it excites in the community ; and, in the sum of evU, the depravity which the culprit manifests is not an essential circumstance, but merely an aggravation. The greatest offences are those for which the smallest degree of knowledge is sufficient; the most ignoraait individual always knows enough to commit them. Inundation is a graver crime than house-firing ; house-firing than homicide ; homicide than robbery ; robbery than, pilfering. This proposition may be de- monstrated by an arithmetical process, by an inventory of the items of evil in each case, by a comparison of the greatness of each individual suffering, and of the number of individuals who are made to suffer. But how much knowledge is required to enable a man to commit these offences ? The most atrocious of aU demands only a degree of intelligence possessed by the most barbarous, the most savage of men. Kobbery is worse than seduction or adultery ; but robbery is most frequent in times of barbarism, seduction and adultery in those of refinement. The dissemination of knowledge has not increased the number of offences, nor even the facility of committing them ; it has only diversified the means of their perpetration. And how? By gradually substituting less injurious means in the place of those which are more injurious. Is a new method of theft invented ? The inventor profits for a time by his discovery ; but presently his secret is found out, and people are on their guard. It then becomes necessary to 368 MnfciPLES OF the penal code. have recourse to some new means, which has its turn, like the first, and passes by in the same way. All this is still but theft, not so bad as highway robbery, which itself is not so bad as plundering committed by armed bands.* "Why ? Because the con- fidence every one has in his own prudence and his own sagacity prevents him from being so much alarmed by theft as by robbery. Let it be granted, however, that bad men abuse everything ; that the more they know, the more means they have of doing evil ; what follows ? If the good and the bad composed two distinct races, like the white and black, the one might be enlightened and the other kept in ignorance. But since it is impossible to discriminate between them, and especially when we consider the frequent alternation of good and evU in the same individual, all must be subjected to the same rule. General light, or general darkness; there is no middle course. However, the very evil complained of carries with it its own cure. Knowledge cannot give advantage to the bad, except so far as they have the exclusive possession of it. A snare which is known ceases to be a snare. The most ignorant tribes have known how to poison the tips of their arrows ; but it is only nations well instructed who have become acquainted with all poisons, and have known how to oppose them by antidotes. All men have the capacity to commit offences ; but only en- ^ lightened men are able to discover laws which can prevent them. The more ignorant a man is, the. more he is inclined to separate his private interest from the interest of his fellows. The more * That is, on the supposition that the damage of the offence is the same ; for there is a point of view in -which theft is worse than robbery, since one may possess himself of a greater sum of money by fraud than by robbing on the highway. For proofs of the superiority of modem manners over ancient timeSi see Hume's Essm/ on Population. For proofs of their superiority over the manners of the Middle Ages, see Voltaire's General Mistory ; Sii/me's History of England ; Sobertson's Introduction to Cha/rles V. ; Bamngton's ObservaUons wpon English Statutes ; and ChastelT/uw, in his Treatise wpon FubUc Happiness, a work happily conceived but not well executed. PEUfCZPLES OP THE PENAL CODE. 369 csolightened he is, the more clearly -will lie perceive the connec- tion between his private interest and the interest of the whole. Look through history; the most barbarous ages present an aBsemblage of all offences, offences of cunning as well as offences of violence. Barbarism, though it has some vices peculiar to itself, seems not to exclude vices of any kind. At what epoch were false titles and forged grants most multiplied ? When the clergy alone knew how to read ; -when, through the superiority of their knowledge, they regarded men almost as we regard horses, animals which we could not subdue to the bit, if their intellectual faculties were equal to ours. Why was recourse had, during the same period, to judicial duels, to trials by fire and water, and to aU those strange means caRei judgments of God? Because, during that infancy of reason, there were no principles known by which to distinguish truth from falsehood. '^ Compare the results in states in which the publication of ideas has been restrained, and in those where freedom of thought and of speech has been permitted. Tou have, on the one side, Spain, f ortugal, Italy ; on the other, England, Holland, North America. Where is the most happiness ? Where the best morals ? Where the most crimes ? Where is society most agreeable and most secure? Too many praises have been lavished upon institutions, the founders of which made knowledge a monopoly. Such were the priests in ancient Egypt, the Brahmins of Hindostan, the Jesuits in Paraguay. If their conduct merits praise, it is only in rela- tion to the interests of those persons who have administered these forms of government, not as regards the interest of those who have been subject to them. It may be admitted that the people have been quiet and docile under these theocracies ; but have they been happy ? It is not credible that they have been, unless an ab- jectservitude, vain terrors, useless obligations, macerations, pain- ful observances, saddening opinions, are no obstacles to happiness. These governments have not so much attained their end by maintaining natural ignorance, as by spreading prejudices, and propagating errors. The chiefs themselves have always ended B B 370 PEDTCIPLES OF THE PENAL CODE. by becoming the victims of tHs narrow and pTisillanimoiis policy. . States retained in a constant inferiority, by institutions opposed to every kind of progress, become the prey of nations wbo have acquired a relative superiority. States grown old in an infancy, which has been prolonged by their tutors, that they might the more easily govern, have always offered an easy conquest ; and once subjected, have passed with little or no resistance from one master to another. But it is said we do not pretend to keep men in ignorance ; all governments perceive the necessity of knowledge ; what they are afraid of is the liberty of the press. They do not oppose the publication of scientific treatises ; but is it not reasonable that they should oppose the spread of immoral or seditious writings, the evil effects of which cannot be prevented if they are once allowed to circulate ? Punishing a guilty author may act as a preventive to those who might incline to imitate him ; but to prevent the publication of bad books by the institution of the censorship, is to check the evil at its source. The liberty of the press has its inconveniences ; nevertheless, the evils which result from it are not to be compared to those of a censorship. Where will you find that rare genius, that superior intelligence, that mortal, accessible to all truths, and inaccessible to any passion, to whom can be intrusted this supreme dictatorship over all the productions of the human mind ? Do you suppose that a Locke, a Leibnitz, or a Newton, would have had the presumption to undertake it ? And what is this power which you are forced to confer upon inferior men ? It is a power which by a singular necessity combines in its exercise aU the causes of partiality, and all the characteristics of injustice. What is a censor ? He is an interested judge, a sole judge, an arbitrary judge, who proceeds in secret, condemns without a hearing, and decides without appeal. Secrecy of procedure, that greatest of abuses, is absolutely essen- tial. If a book were publicly examined, it would be publishing the book, in order to know if it ought to be published. As to the evil which results from a censorship, it is impossible to PEINCIPLES OP THE PENAL COBB. 371 measure it, because it is impossible to teK where it ends. It is nothing less than the danger of stopping the whole progress of the, human mind in all its paths. Every new and important truth must of necessity have many enemies, for the single reason that it is new and important. Is it to be presumed that the censor will belong to that class, infinitely the smaller, which elevates itself above established prejudices ? And though he should have that uncommon strength of mind, will he have the courage to endanger himself on account of discoveries of which he /pllnot share the glory ? There is but one sure course for him "to takej to proscribe everything which rises above common ideas, to draw his pen through everything elevated. He risks nothing by iprohibition, but everything by permission. In doubtful cases, it will not be he that suffers ; it will be Truth. If the advance of the human mind had depended upon the good- will of those in authority, where should we be to-day? Reli- gion, legislation, morals, the physical sciences, aU would be in darkness. But it is not necessary to dweU upon so common an argument. The true censorship is that of an enlightened public, which (liecountenances false and dangerous opinions, and encourages useful discoveries. In a free country, the audacity of a Hbel does not save it from general contempt ; but by a contradiction easy to be explained, the indulgence of the public iu this respect is always in proportion to the rigour of the government. CHAPTEE III. ■ Indirect Means of preventing the Wish to commit Offences. Ve have seen that legislation can only operate by influencing the power, the knowledge, and the will. We have spoken of the indirect means of taking away the power to do injury ; we have shown that the policy of preventing men from acquiring rofor- ination, does more harm than good. AU the indirect means, then, which we can use with advantage, must be employed in directing B £ 2 373 PEDrcrPLES of the penal code. the inclinations of men, in putting into operation the roles of a logic hitherto but little known, the logic of the will — a logic which, as Horace has so well expressed it, seems often to be opposition to that of the understanding : — Viatea meUora Probogue, et deteriora sequor. I see the better And approve it ; and tlie worse I follow. The means about to be presented are of a nature to put a stop in many cases to this interior discord ; to diminish that contra- riety aniong motives, which often owes its existence to want of address on the part of the legislator, to an opposition which he has himself created between the natural sanction and the political sanction, between the moral sanction and the religious sanction. If he could make all these powers concur towards the same end, all the faculties of man would be in harmony, and the will to do evil would not exist. In cases where this end cannot be at- tained, it is necessary, at all events, that the force of the tutelary motives should exceed that of the seductive motives. The indirect means by which the wiU can be influenced, may be illustrated under the form of political or moral problems, of which the solution may be shown by various examples : Prollem, First. — To change the course of dangerous desires, and to direct the inclinations towards amusements conformable to the public interest. Second. — To arrange so that a given desire may be satisfied without injury, or with the least possible injury. Third. — To avoid furnishing encouragements to crime. Fourth. — To increase responsibility in proportion as temptation increases. Fifth. — To diminish the sensibility to temptation. Sixth. — To strengthen the impression of punishments upon the imagination. Seventh. — To facUitate knowledge of the fact of an offence. Eighth. — To prevent an offence by giving to many persons an immediate interest to prevent it. PEINCrPLES OE THE PENAL CODE. 373 ' Ninth. — To facilitate the means of recognising and finding individuals. Tenth. — To increase the difficulty of escape. Eleventh. — To diminish the uncertainty of prosecutions and panishments. Twelfth. — To prohibit accessory offences, in order prevent the principal offence. After these means, of which the object is special, others more general wiU. be pointed out, such as the culture of benevolence, the culture of honour, the employment of the impulse of religion, and the use to be made of the power of instruction, and of -education. CHAPTEE IV. To change the Course of Dangerous Desires, and to direct the Inclinations towards Amusements eonformalle to the Public Interest. Tkb object of direct legislation is to combat pernicious desires, by prohibitions and punishments directed against the injurious acts to which those desires give birth. The object of indirect legislation is to counteract their influence by increasing the force, *qf less dangerous desires, capable of entering into rivalry with them. There are two objects to be considered — ^What are the desires which it is an object to weaken ? By what means can that end be obtained? I Pernicious desires are of three classes : — 1st, Malevolent pas- sions ; 2ad, The appetite for strong drinks ; 3rd, Idleness. The means of weakening these desires may be reduced to three heads: — 1st, To encourage honest inclinations; 2nd, To avoid forcing men into idleness ; 3rd, Tofavour the consumption of non- inebriating liquors, in preference to those of an intoxicating quality. Some persons may be surprised that the catalogue of vicious inclinations is so limited ; but they should recollect that the human heart has no passions absolutely bad. There is none 874 PEnfciPiES OF the penal code. ■which does not fetand in need of guidance ; and at the same time none -which ought to be eradicated. When the angel G-abriel prepared the prophet Mahomet for his diyine mission, he plucked from his heart a black spot, which contained the seed of evil. Unfortunately, this operation cannot be practised upon the hearts of ordinary men. The seeds of good and the seeds of evil are inseparably mixed. The incliaations are governed by motives-; but all pains and all pleasures are motives ; pains to be avoided, pleasures to be pursued. Now, all these motives may produce aU sort of effects, from the best to the worst. They are trees which bear wholesome fruits or poisons, according to exposure, according to the care of the gardener, according to the wind that blows, or the temperature of the day. The purest benevolence, confining itself too exclusively to a single subject, or mistaken in its means, may produce great evils. Attachment to one's self, though occasionally it becomes hurtful, is constantly necessary ; and in spite of their deformity, the malevolent passions are at least useful as means of defence, as safeguards against the inva- sion of personal interest. "We ought not, then, to attempt rooting out any affections of the human heart, since there is none which does not play its part in the system of utility. "We should con- fine ourselves to the operation of these affections in detail, accord- ing to the direction which they take, and the effects which they are likely to produce. A useful balance may be established between these inclinations, by strengthening those which are apt to be too weak, and by weakening those which are too strong. It is thus that the cultivator directs the course of waters in such a manner that his grounds suffer neither from overflow nor from drought. The passion for inebriating liquors is, properly speaking, the only one that can be extirpated without doing any injury ; for the irascible passions, as I have said, are a necessary stimulant in cases when persons are obliged to protect themselves, and to repel the attacks of an enemy. The love of repose is not inju- rious in itself; indolence, however, is an evil, inasmuch as it favours the ascendancy of the hurtful passions. "However, these PEINCrPLES OF THE PENAI, COBE. 375 three desires may be looked upon as equally in need of being repressed. It is hardly to be feared that we can bare too great success against the inclination to idleness, or that the vindictive passions can be reduced below the point of utility. The first expedient, as I have said, is to encourage innocent amusements. It is a branch of that science, so complicated and so ill-defined, which consists in advancing civilization. The state of barbarism diflfers from civilization by two characteristic traits: — 1st, The force of the M-»saW« appetites ; 2nd, The, small number of objects of enjoyment offered to the eoneupiseent appetites.* The occupations of a savage after he has supplied himself with physical necessaries, the only ones he knows, are soon described. The pursuit of revenge ; the pleasure of drunkenness if he has the means ; sleep ; or perfect indolence ; such is the sum total of Ms resources. Each of these inclinations is favourable to the development and to the action of the other. Eesentment finds easy access to a mind unoccupied; idleness leads to drunkenness; and drunkenness produces quarrels, which nourish and multiply resentments. The pleasures of love, not being mingled with the sentimental refinements which embellish and increase them, seem not to play a great part in the life of the savage, and go but a little way towards filling up the intervals of exertion. Under a regular government the necessity of vengeance is sup- pressed by legal protection, and the pleasure of giving one's self up to it is counteracted by the fear of punishment ; the power of indolence is enfeebled ; but the love of strong liquors is not diminished. A nation of savages and a nation of hunters are convertible expressions. The Hfe of the hunter, as well as that of the fisherman, provided they know how to preserve the game they take, afi'ords long intervals of idleness; while in a civilized state, the mass of the community is composed of labourers and artisans, who have scarcely the leisure necessary for sleep and * TMs diatinotiou of the sohoolmen is suffioieatly complete. To the first class, belong the pleasures of maleyolenoe ; to the second, all other pleasures. 378 PEINCIPLES OF THE PENAL CODE. as SO many means of alleviating the yoke of power, of turning the public attention towards agreeable objects, and preventing it from being occupied with public affairs. This effect, though it was not the object of their establishment, has caused them to obtain more favour after being established. Peter the Great made use of a higher and more generous policy. The manners of the Kussians, their proneness to intoxication ex- cepted, were rather Asiatic thanEuropean. Peter I., wishing to moderate their grossness, and to temper their ferocity, employed expedients perhaps a little too direct. He used all possible en- couragements, and even had recourse to violence, in order to in- troduce European dress and European spectacles, assemblies and arts. To lead his subjects to imitate the other nations of Europe was, in other words, to civilize them. But he encountered the greatest resistance to all these innovations. Envy, jealousy, contempt, and a multitude of anti-social passions, opposed this assimilation with foreign rivals. These passions no longer re- cognised their objects, when visible marks of distinction were effaced. In taking from his subjects the exterior by which they were distinguished, he took from them, so to speak, the pretext and the aliment of a hateful rivalry. He associated them with the great republic of Europe ; and they had everything to gain by that association. The rigid observation of Sunday, such as prevails in Scotland, in England, and in some parts of Germany, is a violation of this policy. The Act of Parliament upon this subject, passed in 1781, seems more appropriate to the times of Cromwell than our own. It prohibits people froni every kind of Sunday amusement, except sensual pleasures, drunkenness, and debauchery. , It was iu the name of good morals that a law so contrary to good morals was enacted. Sunday becomes by this kind of rigour an institution in honour of idleness, and profitable to all the vices. Two suppositions are necessary to justify such a law : one, that amusements, innocent six days in the week, change their nature, and become mischievous on the seventh ; the other, that idleness, the mother of all the vices, is the safeguard of religion. PEIXCIPLES OP THE PENAI CODE. 379 I do not kno-w what to make of these ideas ; let the theologians expound them.* If a revealed law is in contradiction to morality, it ought not to he listened to. We have more certain proofs of the political effects of an institution than we can have of the truth of a religious history, founded upon events out of the course of nature. In one case we have the testimony of our own senses ; in the other case we must rely upon the testimony of others, a testimony transmitted from hand to hand, and weakened by every trans- mission, which alters more or less its primitive traits. But this contradiction does not exist This rigorous observ- ance of Sunday has no foundation in the Gospel ; it is even con- trary to its text, and its positive examples. The judicious Tenelon, whom no one wUl accuse of having misunderstood the spirit of Christian morality, rebuked the indiscreet severity of his curates, and was unwilling that the people of his diocese should he forbidden to indulge on Sundays, after the exercises of religion were over, in dances and rustic sports. I find fault not with a day for the suspension of ordinary labours, nor with a day devoted in part to religious worship ; but with the absurdity of converting into offences, during that day, the most necessary labours of the field, and the public exercise of the most harmlesB amusements. To deprive the people one day in the week of pleasures acknowledged to be innocent, is to take away a portion of their happraess ; for if happiness is not composed of pleasures, of what is it composed ? How is it possible to justify the severity of the * The chaplain of Newgate takes great care to have it inserted in the Biography of Malefactors, as their own confession, that the commence, ment of their career was the violation of the Sabbath, I believe he would be nearer the trath, if he said that they began their career by oiservmg the Sabbath — observing it, that is, in a particular way. Not knowing what to do with their time and their money, what other resource have they but the tavern? Drunkenness renders them quarrelsome and stupid, destroys their health, their aptitude for labour, and their habits of economy, and throws them into bad company. Thus they are prepared to enter upon the career of crime. 380 PEINCIPLES OF THE PENAL CODE. legislator, Trho, witliout necessity, tates away from the labouring classes those little enjoyments which soften their hard lot, and who forces them into gloominess or vice, imder pretext of religion ? There are two ways of doing injury to mankind : one, the introduction of pains ; the other, the exclusion of pleasures. If one of these ways deserves to be condemned, how can the other be worthy of praise ? Both are acts of tyranny ; for in what does tyranny consist, if not in this ? It is only effects which are here spoken of; no doubt good is intended; but it is easier to reason vaguely, than to go to the bottom of a matter ; to float here and there between folly and wisdom, than to persevere in one or the other ; to follow the current of prejudice, than to resist its torrent. However good the intention may be, it is certain that the tendency of this ascetic practice is hurtful and immoral. Happy the people which is seen to elevate itself above gross and brutal vices, to cultivate elegance of manners, the pleasures of society, the embellishment of gardens, the fine arts, the sciences, public amusements, the exercises of the understanding ! Eeligions which inspire gloom, governments which render men distrustful, and which keep them apart, contain the germ of the greatest vices, and the most injurious passions. CHAPTEE V. To satisfy certain Desires without Injury, or with the least possible Injury. Desiees, both those of which we have spoken, and those of which we are about to speak, are susceptible of being satisfied in differ- ent ways, and upon different conditions, through aU the degrees of the moral scale, from innocence up to the highest point of criminality. That these desires may be satisfied without injury, is the first object to be accomplished ; but if this object is unat- tainable, the second object is to render their satisfaction less in- PEINCIPLES OP THE PENAI CODE. 881 jurious to the community than would be the violation of a law. If even this second end is unattainable, it then becomes an object to arrange things in such a way that the iadividual, placed by his desires between two offences, may be inclined to "choose that which is the least injurious. This last object seems humble; , it is a kind of composition with vice ; it is, as it were, haggling with it, and beating it down to the lowest possible rate. Let us examine how these several points can be attained, in the case of three kinds of imperious desires : — 1st, Vengeance ; 2nd, "Want ; 3rd, The sexual passion. SECTIOlf I. There are two means of satisfying the vindictive appetites without harm : — 1st, To provide legal redress for every kind of personal injury ; 2nd, To establish some competent satisfaction for injuries which affect the point of honour. Failing these means, there is only one expedient to satisfy these vindictive appetites with the least harm, and that is, by showing indulgence to duelling. 1st. To provide Legal Red/resi for all hinds of Iwjitries. — The vices and the virtues of mankind depend very much upon the circumstances of society. Hospitality, it has been observed, is most practised where it is most necessary. It is the same with vengeance. In the state of nature the fear of private revenge is the only restraint upon force, the only safeguard against the violence of the passions. It corresponds to the fear of punish- ment in a state where laws are established. Every improvement in the administration of justice tends to diminish the force of the vindictive appetites, and to prevent acts of private animosity. The principal interest in view, in cases of legal redress, is the interest of the injured party. But even the offender finds an advantage in this arrangement. Leave a man to revenge him- self, and his vengeance knows no Umits. Grant him what, upon a cool examination, you regard as a competent satisfaction, and at the same time forbid him to go farther, and he wiU rather 382 PEINCIPLES OF IKE PEIfAL CODE. accept what you grve him without risk or hazard thau expose himself to the judgment of the law, by attempting to obtaia by his own hand a greater satisfaction. This, then, is an accessory benefit which results from providing a legal redress. Eeprisals are prevented. Covered with the buctler of justice, the trans- gressor, after his offence, finds himself in a state of comparative security, under the protection of the law. It is sufficiently evident that the better provision there is for legal redress, the less powerful will be the motive which excites the injured party to procure it for himself. If every pain which a man is exposed to suffer by the conduct of another were in- stantly followed by what he regarded as an equivalent pleasure, the irascible appetite would not exist. This supposition is evi- dently exaggerated beyond anything that can possibly be accom- plished. But, exaggerated as it is, it includes truth enough to show that every amelioration in this branch of justice tends to diminish the force of the vindictive passions. Hume has observed, in speaking of the barbarous ages of English history, that the great difficulty was, to engage the injured party to receive satisfaction ; and that the laws respect- ing satisfaction aimed as much at restraining resentment as at securing a certain indulgence to it. More yet. Establish a legal punishment for an injury, and you give room for generosity ; you create a virtue. To pardon an injury when the law offers a satisfaction, is to gain a kind of superiority over your enemy, by the obligation you impose upon him. Such a pardon cannot be attributed to weakness.. The motive is above suspicion. , 3nd. To provide competent Redress for those particulwr Irywries which attach the Point of Sonour. — Injuries of this kind demand a more particular attention, inasmuch as they have a more marked tendency to provoke the vindictive passions. (See Chap. XTV.) In this respect the laws of France have long been superior to those of other nations. English jurisprudence is eminently defective upon this point. It does not recognise the existence of such a thing as honour. It PKHrCIPLES OP THE PENiX CODE. 383 has no means of measuring a corporal insult, except by the dimen- sions of the -wound. It does not suspect that there is any other eTil in the loss of reputation except the loss of money, -which may be the consequence of it. It considers money as the remedy for all e-vils, the palliative for aU. affronts, the equivalent for all insults. He -who has not received a pecuniary compensation has received nothing ; he -who has been paid in money can ask nothing more. There is no other reparation of any kind. But the gross- ness of barbarous ages ought not to be a reproach to the present generation. These la-ws -were established before the feelings of honour -were developed. Honour exists in the tribunal of public opinion, and its decrees are pronoimced -with a peculiar force. Stni, it cannot be doubted that the silence of the la-w has a bad effect. An Englishman cannot travel iu France -without remark- ing that the feeling of honour and the contempt for money descend, so to speak, much further among the inferior classes in France than in England. This difference is especially remarkable in the army. The sentiment of glory, the pride of disinterestedness, are everywhere to be found among the private, soldiers ; and they would think the biilliancy of a good action tarnished if they received a reward for it. A s-word of honour is the highest recompense. 3rd. To show Indulgence to Duelling. — When offended persons -will not be content -with the satisfaction offered by the la-ws, it is necessary to sho-w indulgence to duelling. "Wliere the duel is established, poisoning and assassination are seldom heard of. The comparatively slight evU which results JBrom that practice, is like a premium of insurance, by -which a nation guarantees itself against the grave evil of those two crimes. The duel becomes a preservative of politeness and peace. The fear of being obliged to give or to receive a challenge extinguishes quarrels in the bud. The Greeks and Eomans, -we are told, attained a high, pitch of glory -without having kno-wn the duel. So much the worse for them ; their sentiment of glory did not oppose itself either to poison or the dagger. In the political dissensions of Athens one half the citizens plotted the destruction of the other 384 PEiNcrpiES OP the penal code, half. Observe wtat passes in England and in Ireland, and com- pare it with the dissensions of Greece and Eome. Clodius and Milo, according to our practice, would have fought a duel ; according to the Roman practice, they formed mutual projects of assassination, and he who kUled his adversary did but anticipate him. In the island of Malta duelling had become a kind of rage, and almost a civU war. One of the grand masters made such severe laws against it, and caused them to be so rigorously executed, that duelling ceased ; but it was only to give place to a crime which united cowardice to cruelty. Assassination, hitherto unknown among the knights, became so common that the duel was presently regretted, and finally it was expressly tolerated in a fixed place, and at certain hours. The result was such as was expected. An honourable career being opened to revenge, clan- destine means resumed a character of infamy. Duels are less common in Italy than in France and England ; poisonings and assassinations much more so. In France tiie laws against duelling were severe ; but means were found to elude them. In England the laws confound duelling and murder; but juries do not confound them ; they acquit, or, what amoimts to the same thing, they bring in a verdict of manslaughter. The people are more correctly guided by good sense than the lawyers, are by their science. Would it not be better that the remedy should be according to law, instead of being subversive of it ? Section II. We come now to indigence; and here we have to consider both, the interest of the poor themselves, and that of the community. A man in need of the means of subsistence is pushed by the most irresistible motives to commit aU the offences by which he can supply his wants. Where this stimulus exists it is useless to combat it by the fear of punishment. There are few punish- PEINCaPLBS OP THE PENAL CODE. 385 ments wliich can be greater than starvation ; and, making allow- ance for uncertainty and distance, there are none wHch. can appear so great. The only sure means of protection against the efEeets of indigence, consists in furnishing necessaries to those who are in need of them. In this point of Tiew the indigent may he distributed into four classes : — 1st, The industrious poor, those who ask only to labour in order to live; 2nd, Idle mendicants, those who had rather trust to a precarious charity than live by work ; 3rd, Suspected persons, those who have been arrested for some offence, but dis- charged for want of proof, and upon whose character a blot remains, which prevents them from finding employment ; 4th, Convicts who have finished their term of imprisonment, and who have been set at liberty. These different classes ought not to be treated in the same way; and in establishments for the benefit of the poor, particular care ought to be taken to separate the ; snspeeted fiom the innocent. One rotten sheep, says the proverb, is enough to infect a whole flock. AU which the poor can be made to earn by their labour is not only a profit to the community, it is a gain to themselves. Not only is life to be sustained, but time is to be filled up. Humanity requires that occupations should be found for the deaf, the bUnd, the dumb, the maimed, the impotent, the infirm. The wages of idleness are never so sweet as the reward of industry. If a man has been put upon trial for an alleged offence of indigence, though he should be acquitted, he ought to be required to give an accoimt of his means of subsistence, at least for the last preceding six months. If they were honest, this inquiry can do him no harm ; if they were not honest, he ought to suffer the consequences. "Women labour under particular disadvantages, as respects l/fcility of finding occupation, especially those of a condition a ' little above ordinary labour. Men, having more activity, more liberty, perhaps more dexterity, have possessed themselves even of those employments the best fitted for the female sex, and c c 386 PEINCIPLES OP THE PENiX CODE. which, are almost indecent in the hands of a man. Men sell children's toys, keep fashionable shops, and make -women's shoes, ■women's stays, and women's dresses. Men even perform the office of midwives. There is a reason to doubt whether the injustice of custom might not be redressed by the law, and whether women should not be put in possession of these means of subsistence to the exclusion of men. This would be an indirect means of preventing prostitution, by securing to women suitable occupations. With respect to the treatment of the poor, no universal measure can be proposed. Local and national circumstances must control particular arrangements. In Scotland, with the exception of some large towns, the government does not concern itself with the care of the poor. In England, the tax on their account amounts to more than three millions sterling.* Still the condition of the poor is better in Scotland than in England. The object is better accomplished by custom than by, law. In spite of the inconveniences of the English system it cannot be suddenly abandoned; otherwise half the poor would perish before the necessary habits of benevolence and frugality had taken root. In Scotland the influence of the clergy is very salutary. Having but a moderate salary and no tithes, the ministers are known and respected by their parishioners. In England, the clergy being rich and having tithes, the rector is often in a quarrel with his flock, and knows but little about them. In Scotland, Ireland, and Prance, the poor are moderate in their wants. At Naples the climate saves the expense of fire, of lodging, and almost of dress. In the East Indies dress is hardly necessary except for decency. In Scotland, cleanliness excepted, domestic economy is good in all respects. In Holland it is as good as it can be. In England wants are greater than else- where, and economy is perhaps upon a worse footing than in any country in the world. * It has since much increased, and in aome years has exceeded eight millions. — Tramslator. PEINCrPLES OF THE PENAl CODE. 387 The surest means is not to wait for indigence, but to prevent it. The greatest service which can be rendered to the labouring classes is the establishment of banks, in which the poor may be induced, by the double attraction of security and proiit, to deposit their little savings. SECTIOIf III. We come now to that class of desires for which it is not easy to find any neuter name, — any name which does not present some accessory idea of blame or praise, but especially of blame. The reason is evident. The ascetics have never been able to satisfy ; themselves with degrading and criminating the desires to which nature has intrusted the perpetuity of the species. Poetry, on the other hand, has protested against these usurpations, and has delighted in embellishing the images of pleasure and of love, — a laudable object, when it has respected decency and morals. It may be observed, however, that these inclinations naturally have strength enough, and that -there is no need of exciting them by exaggerated and seducing pictures. As this desire is satisfied in marriage, not only without preju- dice to society, but advantageously for it, the first object of the legislator in this respect ought to be to facilitate marriage : that is, to put no obstacle in its way not absolutely necessary. In the same spirit divorce ought to be authorized, under suitable restrictions. Instead of a marriage broken in fact, and which subsists only in appearance, divorce naturally leads to a real marriage. Separations, permitted in countries where marriages are indissoluble, have the inconvenience either of condemning individuals to the privations of celibacy, or of lead- ing them into illicit connections. But if we are willing to speak upon this delicate subject in good faith, and with a frankness more modest in fact than any hypocritical reserve, we shall acknowledge at once that there is an age at which man has attained the development of his senses, though his faculties are not yet mature enough for the manage- c c 3 388 PEnsrorPLES of the penai code. ment of affairs or the government of a family. THs is true, especially among the upper classes of society. Among the poor, the necessity of labour diverts the desires of love, and retards their development; a more frugal diet, and a simpler kind of life, keep the senses and the imagination longer quiet. Besides, the poor can hardly buy the favours of the other sex, except by the sacrifice of liberty. In addition to the young, not yet marriageable in a moral point of view, how many men there are unable to burden them- selves with the support and the cares of a family. On the one side, domestics, soldiers, sailors, living iu a state of dependence, and often having no fixed dwelling ; on the other, men of a more elevated rank, who are waiting for a fortune or an establishment ; here is a very numerous class cut off from marriage, and reduced to a forced celibacy. The first means which presents itself to diminish this evil is to legitimate contracts for a limited time. This means has great inconveniences ; it is a fact, however, that concubinage actually exists in all societies where there is a great disproportion in fortunes. By prohibiting these arrangements they are not pre- vented ; they are only rendered criminal, and made disgraceful. Those who dare to avow them proclaim their contempt for the laws and for morals; those who conceal them are exposed to suffer a pain of self-reproach in proportion to their moral sensi- bility. According to the common way of thinking, the idea of virtue is associated with this contract when its duration is indefinite, and the idea of vice when its duration is limited. Legislators have followed this opinion ; they have forbidden contracts for a year which they aUow for life. The same action, criminal in the first case, is innocent in the second. What is to be thought of this difference ? Can the duration of the engagement change the quality of an act which equally grows out of it, whether the engagement be for a longer or a shorter time ? But though marriage for a limited period be innocent in itself, it does not follow that it ought to be so honourable as a permanent PEINCIPLES OP THE PENAI CODE. 389 [marriage to tte woman who contracts it. Indeed, she never would obtain the same respect with a woman married for life. The first idea which would present itself with respect to her would be — " If this woman had been as worthy as others, she would have been able to obtain conditions which others have obtained. This precarious arrangement is a sign of inferiority, either in rank or merit." What good would result from authorizing this kind of con- tracts ? It would save the law, by which they are now forbidden, &om being broken and despised. It would preserve the women who enter into such contracts from a humiliation which, having degraded them in their own esteem, leads almost always to utter 'worthlessness. Besides, it would give publicity to the birth of ; chUdren, and would secure for them a father's care. s; In Grermacy, what are called left-handed marriages are gene- rally established. The object is to reconcile domestic happiness with family pride. The woman acquires in this way some of t3ie privileges of a wife ; but neither she nor her children are entitled to the name or the rank of the husband. These marriages were forbidden by the Code Frederic. However, the king reserved the right of granting particular dispensations. The idea now proposed is not at all conformable to common opi- nions ; let it be observed, however, that it is proposed, not as good in itself, but as a means of alleviating an existing evil. In coun- tries where manners are so simple and where fortunes are so equal that this expedient is not needed, it would be absurd to introduce it. "With the same apology, I shall proceed to speak of a yet graver disorder, of an evil which exists particularly in great cities, and which also springs from inequality of fortune, and from the combination of all those causes which produce celibacy. That evU is prostitution. There are countries where the laws tolerate it ; there are others, such as England, where it is strictly prohibited. But though prohibited, it is as common, and as publicly exercised, as can be imagined, because the government does not dare to suppress it, and because the public would not approve such a display of 390 PEINCIPIES OP THE PENAL CODE. authority. Prostitution, thus nominally forbidden, is as common as if there were no law against it, and much more mischievous. The infamy of prostitution is not solely the work of the law. There would always be a degree of shame attached to that condi- tion, even though the political sanction remained neuter. The condition of a courtesan is a condition of dependence and servi- tude ; her resources are precarious, and indigence and famine always threaten to overwhelm her. Her very name is associated with evils distressing to the imagination, for courtesans are unjustly considered as the causes of disorders of which they are only the victims. There is no need to say with what sentiments they are regarded by honest women. The most virtuous may lament their miseries, but all agree in despising them, l^obody, in their behalf, attempts defence or excuse. It is natural that they should be crushed by the weight of public opinion. They have never thought of forming a combination, which might counterbalance this public contempt ; and, though they wished it, they could not effect it. If the interest of a common defence should unite them, they would soon be divided by rivalry and want. The person, as well as the name of a public woman, is an object of hatred and disdain to her fellows. This is perhaps the only employment publicly despised by the very persons who pub- licly profess it. Self-love, with the most singular inconsistency, seeks as it were to shake off the recollection of its own misfor- tunes ; each unhappy creature strives to forget what she is, or to earn an exception for herself, by severity towards her fellows. Kept mistresses are regarded as almost equally infamous with public women. The reason is plain ; they do not yet belong to that class, but they are always on the eve of faUing into it. Still, the longer a female has lived with the same man, the further is she removed from a state of degradation, and the nearer she ap- proaches to the condition of a married woman. The longer the connection has endured, the more difficult it seems to break it, and the greater is its prospect of perpetuity. The result of these observations is, that the remedy, as far as there can be one, is to be found in the evil itself. The more PEINCIPIES OF THE PENAL CODE. 391 this condition is a natural object of contempt, the less it is neces- sary for the law to brand it. It carries along with it a natural punishment ; a pTinishment already too severe, if we consider all the reasons for pitying this unhappy class, the victims of social inequality, and always so near to despair. How few of these women have embraced this profession knowingly and by choice How few would go on, if they could quit it ; if they could pass out of this circle of disgrace and misery ; if they were not repelled from every business upon which they might attempt to enter ! How many have been precipitated into it by the error of a moment ; by the inexperience of youth ; by the corruption of their parents ; by the crime of a seducer ; by an inexorable severity towards a first fault; almost all by destitution and misery ! If opinion is tyrannical and unjust, ought the legislator to exasperate that injustice, ought he to convert himself into an instrument of tjrranny ? And what is the efieet of these laws ? They only serve to in- crease the corruption of which these unhappy women are accused. They drive them into drunkenness in search of a momentary ob- livion of misery ; they render them insensible to the restraints of shame, by exhausting upon misfortune the disgrace which ought to be reserved for real crimes. Knally, they prevent those pre- cautions which might alleviate the inconveniences of this disorder, were it tolerated by the laws. All these evUs, which the laws so lavishly dispense, are a price which folly pays to obtain an imaginary good, which after all is not obtained, and never will be. The Empress Queen of Hungary undertook to extirpate this evU, and laboured at it with a laudable perseverance worthy of a better cause, "What followed ? Corruption spread itself through public and private life ; the marriage bed was violated ; the seat of justice was corrupted. Adultery gained all that libertinage lost. Magistrates made traflc of connivance. Eraud, partiality, oppression, extortion spread themselves through the country ; and the evil it was desired to abolish, driven to conceal itself, became so much the more dangerous. 393 PEINCIPIES OF THE PENAL CODE. Among the Greeks, this profession was permitted, and some- times even encouraged; but the parents themselves -were not allowed to traffic in the honour of their daughters. Among the Eomans, during what are called the best times of the republic, the law was silent on this subject. The sa3dng of Cato to a young man, whom he met coming out of a brothel, is a proof of it. Cato was not a person to encourage violations of the law. In the metropolis of the Christian world, this vocation is freely exercised.* This fact was doubtless one reason for the excessive rigour of the Protestants. At Venice, under the republic, the profession of a courtesan was publicly authorized. In the capital of Holland, houses of this nature receive a license from the magistrate. Eetif of Brittany published an iagenious work, entitled The Pornograph, iu which he proposed that government should estab- lish an iustitution, subject to certain rules, for the reception and government of public women. In some respects, the toleration of this evil in great cities is useful ; its prohibition amounts to nothing, and has certain incon- veniences besides. The asylum at London for penitent prostitutes is a very excel- lent institution ; but those who regard prostitution with abso- lute rigour, are not very consistent in approving of that charity. If it reforms some, it encourages others. Is not the hospital at Chelsea an encouragement to soldiers, and that at Grreenwich to sailors ? It would be well to institute an establishment for selling an- nuities to these women, to begin at a certain, age ; and the arrangement should be adapted to the nature of this sad profes- sion, in which the time of harvest is necessarily short, but of which the profits are sometimes considerable. The spirit of economy is formed from small beginnings, and goes on always increasing. A sum too inconsiderable to offer a * This has ceased to he the case, but it remains to he seen whether severity on this point will be an advantage to morals. ,PKISrCIPLES OF THE PENAL CODE. 393 resource as actual capital, might furnish a considerable annuity, at a distant period. TJpon points of morals, as to which there are contested ques- . tions, it is weU to consult the laws of different nations. It is a kind of mental travelling. In the course of such an exercise, we are able to disengage ourselves from local and national prejudices, by passing in review the usages of other communities. CHAPTEE VI. To avoid furnishing Encov/ragements to Crime. To say that government ought not to give rewards to crime, that it ought not to weaken the moral nor the religious sanction, in cases where they are useful, is a maxim which seems too simple to stand in need of proof. Yet it is often forgotten ; and I might give striking examples of it ; but the more obvious they are, the less need there is to point them out. It will be better to dwell upon those cases in which this maxim is more covertly violated. I. Injttkious Detention of Peopektt. — If the law suffers a man who unjustly detains the property of another to gain by delay of restitution, the law becomes an accomplice in the wrong. The cases in which the English law is defective in this respect are innumerable. In many cases, a debtor has only to refuse pay- ment till he dies, and he will escape the debt altogether ; in many others, he can, by delay, escape the payment of interest ; and he can always retain the amount for a longer or shorter period, and thus compel his creditor to submit to a forced loan, at the ordinary rate of interest. A few simple regulations would suffice to cut off these temp- tations to injustice : — 1st. So far as landed property is liable for debts, the death of either party should make no difference. 2nd. Interest should run from the rnoment the obligation commences. 3rd. The obligation should commence, not from the liquidation of damages, but from the moment of the damage. 4th. This interest should be higher than the ordinary rate. How happens 394 PEINCIPLES OF THE PENAL CODE. it that means so simple have never been adopted ? ^ Those who ask this question do not know the power of habit, of indolence, of indifference to the public good; they are ignorant of the bigotry of lawyers, and of the strength of personal interest, and the professional spirit. II. IJnlawpui. Destettction. — "VThen a man insures his pro- perty against some calamity, if the value insured exceeds the real value, it is his interest, in a certain sense, to bring on the calami- tous event : to set fire to his house, if it is insured against fire ; to sink his vessel, if it is insured against the dangers of the seas. The law, then, which authorizes these contracts, may be con- sidered as furnishing a motive for the perpetration of these offences. Does it follow, then, that the law ought not to sanction them ? Not at all ; but only that it ought to command or suggest to the assurers precautions best adapted to the prevention of these abuses, without being so restrictive as to interfere with the business : such as preliminary inquiries ; certificates of the real value of the property insured ; in case of loss, the testimony of some respectable persons to the character and honesty of the party insured ; in doubtful cases, an inspection of the property insured, &c. III. Teeasott. — If the insurance of vessels belonging to a hos- tile nation is permitted, the state may be exposed to two dangers : — 1st, The commerce of the hostile nation, which is one of the sources of its power, is facilitated; 2nd, The insurer, to protect himself against a loss, may give secret information to the enemy of movements made by the fleets and cruisers of his own nation. As regards the first of these inconveniences, it is not an evil, unless the enemy cannot obtain insurance elsewhere, or if he can employ his capital with the same profit in some other branch of industry. As to the second inconvenience, it is absolutely nothing, unless the insurer is led to give information to the enemy which otherwise money could not buy, ajid unless his facility of giving this information is so great as to transcend the infamy and the risk of treason. On the other hand, the advantage to the nation that assures PSrSfCIPLES OP THE PElfAL CODE. 395 is certain. In this kind of traffic, it has been found that the ba- lance of profit, during a given time, is in favour of the assurers ; that is, taking the losses and gains together, they receive more in premiums than they pay out in indemnities. It is then a lucrative branch of commerce, and may be considered as a tax levied upon the enemy. IV. Pecuxatioit. — In making a bargain with architects and contractors, it is quite common to give them so much per cent, upon the amount of their expenditures. This mode of payment, which seems natural enough, opens the door to peculation, and to peculation of the most destructive kind ; since, while the pecu- lator makes a little profit, the employer must suffer a great loss. This danger is at its highest point in the case of public works, where nobody has a particular interest to prevent waste, and where many persons may find an interest in conniving at it. One remedy would be to fix the expense by estimation, and to say to the contractor, " So far you shaUhave your per centage, but beyond that you shaU have nothing. If you reduce the expense below the estimate, you shaU stUl have the same profit.' Y. Abuse op Public Tkusts. — If a public man who has it in his power to contribute towards war or peace possesses an employ- ment of which the emoluments are more considerable in war than in peace, he has an interest to exert his power for the prolongation of war. If these emoluments increase in proportion to the expense, he has an additional interest that the war should be con- ducted with the greatest possible prodigality. Exactly the oppo- site state of things should be aimed at. VI. Offences of evekt kind. — "When an individual makes a bet on the affirmative side of a future event, he has an interest in the happening of that event, proportioned to the amount of the bet. If the event is one of those things prohibited by law, he then has an interest to commit an offence. He is even stimulated by a double force, the one partaking of the nature of reward, the other of the nature of punishment ; a reward to be received in case the event happens ; a punishment to be experienced in the opposite case. It is as if he had been suborned by the promise of 396 PEINCIPLBS OF IHE PENAI. CODE. a sum of money on one side, and as if he had made an engagement under a formal penalty on the other.* If, then, aU. kinds of bets, without distinction, were acknow- ledged to be valid, venality of every kind would receive the sanction of the laws, and liberty would be given to everybody to enlist accomplices for all sorts of offences. On the other side, if all bets, without restriction, were prohibited, insurances, so useful to commerce, and such a resource against a multitude of cala- mities, would not be lawful ; for insurance is nothing but a sort of bet. The middle course seems the best. In all cases in which bets may become instruments of mischief, without answering any useful object, prohibit them absolutely. In cases like insurance, in which they may be useful, adpait them ; but leave it to the judge to make necessary exceptions when it shall appear that they 'have been only a cover to subornation. CHAPTEE YII. To increase Responsibility in proportion as Temptation increases. This precaution relates principally to public employments. The more of fortune or honours those who exercise such employments have to lose, the stronger hold we have upon them. Their salary is a means of responsibility. In case of misconduct, the loss of this salary is a punishment which they cannot escape, though they may avoid every other. This means is specially useful in employments which relate to the handling of public money. If you cannot insure the honesty of a cashier in any other way, make his appointments rise something above the interest of the greatest sum which is intrusted to him. This excess of salary is like a premium paid for an insurance against his dishonesty. * In the Admentiores of a Qmnea, there is a bet made between the wife of a clergyman and the wife of a minister, that the clergyman would not be an archbishop. It is easy to imagine which was the gainer. PEINCIPIES 01' THE PENAL CODE. 397 He has more to lose in becoming a rogue than by remaining honest. Birth, honours, family connections, religion, may become so many means of responsibility, so many pledges for the good con- duct of individuals. There are cases in ■which legislators have not chosen to trust bachelors ; they have regarded a wife and children as hostages given to one's country. CHAPTER VIII. To diminish the Sensilility to Temptation, Iisr the preceding chapter the question was to discover precau- tions against dishonesty ; in this, the object is to avoid the diminution of probity through the exposure of honest men to the influence of seductive motives too strong for their virtue. First, of salaries ; for money, according to the manner of its application, may serve as a poison or an antidote. Apart from any regard to the happiness of individuals, the interest of the public service requires that the persons employed in it should be above the pressure of want, especially in aU those employments which afibrd an opportunity of acquisition by inju- rious means. The greatest abuses have been produced in Eussia, throughout the whole administration, by the insufficiency of salaries. "When men, under the pressure of want, abuse their power, become greedy extortioners and robbers, the blame ought to be shared between them and the government which has spread this snare for their honesty. Placed between the necessity of hving, and the impossibility of living honestly, they are led to look upon extortion as a lawful supplement to their pay, tacitly authorized by those who employ them. Will it be putting them beyond the reach of need to supply their physical wants ? No. If there is not a certain proportion between the dignity with which a man is clothed, and his means of sustaining it, he is in a state of suffering and privation, because he cannot do what is expected of him, nor keep upon a 398 PEiNcrPLES OP the penal code. level witt that class with whom lie is called to associate. In one word, wants increase with honours, and what is relatively neces- sary varies with condition. Place a man in an elevated rank, without giving him wherewith to maintain himself, and what is the consequence ?, His dignity wiU furnish motives to do evU, and his power wiU give him the means. Charles II. heing too much fettered by the economy of Par- liament, sold himself to Louis XIV., who offered to supply his profusion. The hope of escaping the embarrassments into which he was plunged, drove him, like any other bankrupt, into crimi- nal schemes. This, miserable parsimony cost the English two wars, and a peace yet more fatal. It is not easy to teU what sum would have been suflcient to operate as an antiseptic upon a prince so corrupt ; but this example is enough to show that the civil list of the English king, which appears exorbitant to vulgar calculators, tends in fact to promote the general security. Besides, by that intimate alliance which exists between riches and power, everything which augments the magnificence of dignity gives it additional force; the royal pomp, under this point of view, may be compared to those architectural ornaments, which serve also to support and strengthen the edifice. This great rule of diminishing as much as possible the sen- sibility to temptation, has been remarkably violated in the Catholic church. To impose celibacy upon priests, and at the same time to intrust them with the most delicate functions in the examination of consciences, and the direction of families, is to place them in a violent situation, between the misery of observ- ing a useless law, and the disgrace of violating it. When Gregory VII., in a council held at Eome, established the rule that married clerks, or those having concubines, should no longer be permitted to say mass, they uttered cries of indig- nation, they accused him of heresy, and according to the historians of those times, they declared — " If he persists, we had rather renounce the priesthood than our vnves; let him find angels to' govern the churches." — {Sist. of France, by the Abbe Milot, vol. i. Eeign of Henry I.) In our times the government of France PRlNCrPLBS OE THE PENAL CODE. 399 desired to make the marriage of priests lawfal ; but by this time there were no men to be fotmd among them ; they were all angels. CHAPTER IX. To strengthen the Impression of Punishment wpon the Imagination. It is the real punishment which does all the evil; it is the apparent punishment which does all the good. We ought, then, as much as possible to diminish the former, and to augment the latter. Humanity, in this case, consists in the appearance of cruelty. Speak to the eyes, if you wish to move the heart. The pre- cept is as old as Horace, and the experience which dictated it was much older. Every one feels its force, and strives to take advantage of it; the comedian, the charlatan, the orator, the priest, aU know how to turn it to their purpose. Eender your punishments exemplary ; give to the attendant ceremonies a sort of mournful pomp. CaU to your aid all the imitative arts ; and let the exhibitions of these important procedures be among the first to strike the eyes of childhood. A scaffold spread with black, that livery of woe ; the ofS.cers of justice in mourning ; the executioner covered by a mask, which may serve to increase the terror of the beholders, and at the same time to conceal hiTn from a misplaced indignation ; emblems of his crime placed upon the head of the criminal, so that the witnesses of his sufferings may be informed of the offence that has produced them ; — such are a part of the decorations proper to these tragedies of the law. Let aU the persons in this terrible drama move in a solemn procession; let a grave and religious music prepare the hearts of the auditors for the im- portant lesson they are going to receive. The judge should not think it beneath him to preside at this public scene, so that its sombre dignity may be consecrated by the minister of the law. Instruction is not to be rejected, even though it come from an enemy. The Secret Tribunal, the Inquisition, the Star Chamber 400 PEINCJIPLES OF THE PENAI. CODE. — I consult them all ; I examine every means ; I consider all that has been done; I prize a diamond though it be picked from a dunghill. Because assassins use a pistol to commit mur- ders, shall I not employ it in my own defence ? The emblematic robes of the inquisition may be usefully applied to criminal justice. An iucendiary clothed in a robe of pictured flames, ■would offer to every eye the image of his crime, and the indignation of the spectator would be fixed by the image of the offence. A system of punishments accompanied by emblems appropriate as far as possible to each offence, would have an additional advantage. It would furnish allusions to poetry, to eloquence, to dramatic authors, to ordinary conversation. The ideas thence derived would be re-echoed, if I may be allowed the expression, by a thousand objects, and would be scattered on all sides. The Catholic priests have known how to derive from this source the greatest aids to the efScaoy of their religious opinions. I remember having seen at Gravelines a striking exhibition. A priest showed the people a picture, which exhibited a multitude of wretches in the midst of flames, and one of them making signs for a drop of water, by showing his burning tongue. It was a day of public prayers for souls in purgatory. It is clear that such an exhibition was less fitted to inspire a horror of crime than a horror of poverty. The moral was, that one ought at all events to have the wherewithal to pay for a mass ; for where money ex- piates every sin, the sin of poverty is the greatest, the only one without remedy. The methods of punishment which prevail in England form a perfect contrast to everything that can inspire respect. A capital execution has no solemnity ; the pUlory is sometimes a scene of buffoonery, sometimes an exhibition of popular cruelty, a game of chance, in which the sufferer is exposed to the caprices of the mul- titude, and the accidents of the moment. The severity of a public whipping depends upon the money given to the executioner; branding in the hand, according to the understanding between the convict and the ofScer, is sometimes inflicted with a cold iron, and PKINCIPLES or THE VESAL CODE. 401 sometimes with, a hot one ; if it be done with a hot iron, the brand- ing is often confined to a slice of bacon interposed between the branding-iron and the criminal's skin. To keep up the farce, while the meat is smoking and burning, the supposed sufferer puts forth loud cries of agony and pain. The spectators who understand the whole game, only laugh at this parody on the law. It may perhaps be said, — for all questions have two sides, — that these real representations, these terrible scenes of penal justice, would spread fright among the people, and would make dangerous impressions. I do not think so. If they presented to the dishonest the idea of danger, to the honest they would offer only the idea of security. When eternal punishments are loudly threatened, when the flames of hell are frightfully decreed for kinds of offences indefinite and undefinable, the imagination may be so excited that madness is the consequence. We suppose, on the contrary, a manifest offence, a proved offence, an offence of which everybody can avoid the commission, so that the terror of - pimishment cannot be excited to a dangerous degree. However, we must avoid producing false and odious associations. In the first edition of the Code Theresa, the portrait of the empress was surroimded with medallions representing gibbets, wheels, and other instruments of torture and punishment. What a blunder to offer the image of the sovereign with these hideous emblems, like the head of Medusa shaking her serpents ! This scandalous frontispiece was suppressed; but a print was allowed to remain which represented all the instruments of tor- ture—a picture of bad omen, which no one could look at without saying to himself, " Even though innocent, to these evils am I exposed !" But if an abridgment of the penal code were accom- panied by pictures representing the characteristic punishments attached to each crime, it would be an imposing commentary, a sensible and speaking image of the law. The reader would say, " If I am guilty, this must I suffer !" In legislation, a single shade sometimes distinguishes good from evil. B D 403 PElirCIPI.ES OP THE PENAL CODE. CHAPTEE X. To facilitate Knowledge of the Fact of an Offence. In penal oases ttere are two points as to -wHcli the judge must be certain before he can perform, his office : the fact of an offence, and the person of the offender. These two points being known, his information is complete. In different cases there are different proportions of obscurity as to these two points; sometimes the first is most obscure, sometimes the second. Let us consider, in the first place, the fact of an offence, and the means which may facilitate its discovery. I To require Proofs of Title to he in Writing. — It is only by writing that testimony can be rendered permanent and authentic. Verbal transactions, tmless they are of the most simple kind, will be subject to innumerable disputes. Mahomet himself has recom- mended to his followers to observe this precaution. It is almost the onlypassage of the Koran which has a glimmer of common sense. II. To enrol wpon the face of Title Deeds the names of Witnesses. — It is one thing to require witnesses to the execution of a deed ; and another thing to require that their presence be noticed, attested, and registered upon the face of the deed. A third step is to add the circumstances which will enable the witnesses to be found if they are needed. In the attestation of deeds, it wiU be useful to observe the foUowing precautions: — Ist, To prefer a large number of wit- nesses to a small number; this will diminish the danger of falsehood, and give a chance of finding some of them, if they are needed. 2nd. To prefer married persons to bachelors ; heads of families to servants ; persons who have a public character to individuals less distinguished; young or middle-aged men to the old and infirm ; persons who are known to strangers. 3rd. "When the deed is composed of many sheets, each sheet ought-to be signed by the witnesses ; if there are corrections and erasures, a separate list ought to be made of them, which list ought to be attested; the lines ought to be counted, and their number on PEINCIPIES OP THE PENAL CODE. 403 each page marked. 4th. Let each witness add to his name in full his description, place of abode, age, &c. &th. Let the time and place at which the deed is executed be minutely specified ; the time, not only by the day, month, and year, but also by the hour ; the place, by the district, parish, even the house, and the name of the present occupant. This circumstance is an excellent preventive against forgery. A man would hardly dare venture upon such an enterprise when he must be sure of so many details before fabricating a false date ; and if he dared attempt it he would be much more easily discovered. 6th. All numbers ought to be written out in letters, especially dates and sums, except in matters of account, where it is suflS.cient to write the sum total in letters, and except also when the same date or sum often recur in the same deed. The reason of this precaution is, that figures, unless they are written very carefully, are apt to be taken one for another ; and besides, it is easy to alter them, and the least alteration may have very considerable influence. A sum of hun- dreds is easily changed into a sum of thousands. 7th, The for- malities to be observed in the execution of a deed ought to be printed upon the margin of the sheet of paper or parchment upon which it is written. Should these formalities be left to the discretion of individuals, as a means of security required by prudence, or should they be regulated by law ? Some of them should be required, and others should be optional; a latitude should be left to the judge in favour of those eases in which it is not possible to fulfil them. It may happen that a deed is to be made in a place where the prescribed kind of paper is not to be had, where a sufficient number of witnesses cannot be found, &c. In such cases, the deed^may be declared valid provisionally, and until the requisite formalities can be fulfilled. , A greater latitude ought to be allowed in testaments than in deeds between the living. Death does not wait for an attorney, nor for witnesses ; and making a wiU is a business which men are apt to procrastinate to a time when they have neither leisure nor capacity for precision and exactness. On the other hand D D 2 404 PEINCIPIES OF THE PENAI CODE. precautions are most requisite in this sort of deeds, because they are most exposed to forgery. In case of a deed between the living, the party to whom it is falsely ascribed may still be alive and able to contradict it ; in case of a testament, there is no such chance. Many details are necessary to explain the forms which ought to be established, and the exceptions which should be made. I shall only observe that I do not know of any formality, even the most simple, the omission of which ought to render a will absolutely invalid. If instructions upon this subject were published by the govern- ment, even without being made necessary, everybody would be inclined to observe them, since, in case of deeds executed in good faith, every one desires to insure himself all possible securities. The omission of these formalities would then become a vehement suspicion of fraud, unless it could be clearly seen that it ought to be attributed either to ignorance, or to circumstances which rendered their observance impossible. III. To establish Registrations for the Authentication of Titles. — Why ought deeds to be registered ? What deeds ought to be registered ? Ought the registry to be secret or public ? Ought the registration to be optional, or should its omission be visited by a penalty ? Eegisters are useful : — 1st, Against acts of forgery ; 2nd, Against acts of falsification ; 3rd, Against accidents, as the loss or destruction of originals ; 4th, Against a double alienation of the same property to different purchasers. Tor the first and last of these objects, a simple abstract might suffice; for the second, an exact copy would be needed; for the third, an extract would be sufficient, but an entire copy would be much better. Agaiast forgery, the registration ^vould only be useful by being obligatory ; the deed being null when not recorded, with a latitude for accidental cases. This advantage would result, that after the expiration of the time allowed for registration, the forgery of a deed which, according to its date, ought to be PBISrCIPLES OF THE PENAL CODE. 405 registered, would be of no avail. It amounts to limiting to a short period the time within which a fraud of this nature can be committed, with a possibility of success ; and at a period so near that of the supposed act, proofs of the fraud couldbe easily- obtained. So, too, when the registration is intended to prevent double alienations, it should be obligatory, under pain of nuUity. With- out a clause to that effect, the registration would hardly take place, since neither party would have an interest in it. In fact, the seller has an interest the other way. If he is honest, he may have a repugnance to its being known that he has sold or encumbered his property ; if he is a rogue, he may desire the opportunity of selHng it twice over. Testaments are the kind of deeds most apt to be forged. The surest protection against this fraud is to require them, under pain of nullity, to be registered during the life of the testator. It may be objected that this would put a dying man at the mercy of those who surround him in his last moments, since he would no longer have the power to reward or to punish ; but this objection might be obviated by giving him the right to dispose of a tenth part of his property by a codicil. What deeds ought to be registered ? AH in which third persons are interested, and which are important enough to justify this precaution. In what cases should the registry be secret or public ? < Deeds between the living in which third persons are interested, hypothecations, and marriage settlements, ought to be public. Testaments ought to be inviolably secret during the life of the testator. Deeds, such as indentures of apprenticeship and marriage settlements, which do not affect lands, might be kept secret, with the reserve of communicating them to such persons as have a special title to examine their provisions. The registry office might be divided into departments, secret and public, optional and obligatory. Optional registrations would be frequent if the price were moderate. It is an act of prudence to preserve copies against accidents, and where 406 PEINCIPLES OF THE PENAX CODE. could copies be more securely lodged than in an office of this sort ? The necessity of registering mortgages of landed property would be a kind of restraint upon prodigality. A man could noi borrow money upon his estate, to be spent upon mere pleasures, without some degree of shame. This consideration, so favoui-able to the measure, has been regarded as an objection against it, and, in fact, has prevented its adoption. The law of many countries has adopted this system of regis- tration to a greater or less extent. The French law seems to have hit upon a medium tolerably just. In England the law varies. In the counties of Middlesex and York there are offices of registry, established in the reign of Queen Anne, of which the principal object is to prevent double alienations, and the good effects are such that the value of lands is higher in these countries than elsewhere. How does it happen that after so many years of an experience so decisive, this law has not yet been made general ? Ireland enjoys this benefit, but the registry is left to the free choice of individuals. It has been established in Scotland. There, testaments must be registered before the death of the tes- tator. In the county of Middlesex, the registry is not obligatory tin after the death of the testator. IV. Method of preventing Falsifications. — There is an expedient which, in some respects, may take the place of registration. A particular sort of paper or parchment being reqnired for the deed in question, those who sell it by retail may be forbidden to fur- nish it without endorsing upon it the day and the year of the sale, and the names of the seller and purchaser. The distribution of this paper might be limited to a certain number of persons, of whom a list should be kept. Their books would be true registers, and after their death might be deposited in an office. This pre- caution would prevent the forgery of deeds of any kind, pretend- ing to be of a distant date. It would be an additional restraint, if the paper were required to be of the same date with the deed. The date of the paper PRTNCU'LES OP THE PENAL CODE. 407 might he marked in its tissue, in the same way as the name of the maker. In that case, a paper-maker must be a party to every forgery. V. Institutions for the Registry of Events on whieh Titles depend. — There is no need of dwelling upon the plain necessity of pre- serving evidence of births and interments. A prohibition to inter the dead without a previous inspection by a police officer, is a general precaution, against assassinations. It is singular that in England, marriages, instead of being recorded, were for so long a time abandoned to the mere notoriety of a transient ceremony. The only reason that can be given is the simplicity of this contract, which is the same for all, except in particular dispositions relative to fortune. Fortunately, under the reign of 'William III., mar- riages, which serve as the foundation for so many titles, presented themselves as fit objects for a tax. It thus became necessary to have them registered. The tax has been suppressed, but the register remains. But even now the security of rights whieh depend upon these events is not so certain nor so universal as it ought to be. There is but one copy of the registration. The register of each parish ought to be transcribed in a more general office. In the Marriage Act of George II., either through intoler- ance or negligence, the advantage of registration, was denied to Quakers and Jews.* VI. To put People on their Guard against Offences. let. Against poisoning. By giving instructions respecting the different substances which operate as poisons, with the means of detecting them, and the methods of preventing their effects. If these instructions were spread among the multitude without discrimination, they might do more harm than good. This is one of those peculiar cases in which knowledge is more dangerous than useful. The means of employing poisons are surer than the means of counteracting them. The middle course would be to limit the circulation of these instructions to the class of persons who could make a good use of * A new Eegistry Act has lately been enacted by the British Par- liament, which puts this matter on a better footing. — Tramslator. 408 PEINCrPLES OF THE PENAL CODE. them, and whose condition, character, and education furnished a guarantee against the danger of abuse ; such are the parish clergy and the practitioners of medicine. With this view, the instruc- tions ouijht to be in the Latin language, which these persons are supposed to understand. But as regards those poisons which present themselves without being sought for, and which ignorance may administer innocently, the'knowledge of them should be rendered as familiar as possible. There must be a strange depravity in the character of a people, if hemlock, which is so easily mistaken for parsley, and copper, which is so apt to be dissolved in vessels of which the tinning is worn, do not oftener operate as poisons by accident than by design. In these cases, however dangerous knowledge may be, there is more to hope than to fear from it. 2nd. Against false weights and measures. By furnishing instructions relative to false weights and mear sures, and the methods of deception in the emplo3rment of true ones, such as scales with unequal arms, measures with double bottoms, &c. Such knowledge cannot be too widely diffused. Every shop ought to have a copy of these instructions pasted up in plain sight, as a pledge of fair dealing. 3rd. Against frauds in money. By instructions to teach people to distinguish good money from bad. If a particular kind of false coin makes its appearance, the government ought to give notice of it in the most public manner. At Vienna, the officers of the mint always give notice of counter- feit coins the moment they appear ; but the Austrian coinage is upon so good a footing that such attempts are rare. 4th. Against impostures of mendicants. Some counterfeit diseases, although they are in perfect health ; others inflict upon themselves some slight wound to aid them in counterfeiting the appearance of the most disgusting maladies ; others get up false stories of fires and shipwrecks by which they pretend to have suffered ; others borrow or steal children, whom they make the instruments of their trade. But these instructions ought to be accompanied by a preface, lest the knowledge of so PEINCIPLBS OF THE. PENAI. CODE. 409 many impostures should harden the heart, and make it indiffer- ent to real miseries; In a country with a well-regulated police, an individual who displays the aspect of misery ought never to he neglected, nor left to himself; it should be the duty of the first person who meets him to consign him to the hands of public charity. Instructions of this kind would prove more amusing to the people than tracts of religious controversy. 5th. Against theft, pilfering, methods of obtaining by false pretences. By furnishing instructions which explain aU the arts employed by thieves and swindlers. There are many books upon this sub- ject, the materials of which have been supplied by criminals who had repented, or who hoped to purchase pardon by their confes- sions. These compilations are miserable affairs ; but useful ex- tracts might be made from them. One of the best is the Dis- coveries " and Revelations of Poulter, otherwise Baxter, of which sixteen editions were published in twenty- six years, — a fact which shows how wide a circulation might be obtained for an authentic book of this kind, authorized by the government. The tone which might be given to such a work would make it an excellent moral lesson, and at the same time a book of amuse- ment. 6th. Against religious impostures. By furnishing instructions respecting offences committed by the aid of a superstitious belief in the power and malice of spi- ritual agents. These offences are too numerous ; but they are trifles in comparison with the legal persecutions which have derived their origin from the same source. There is hardly a nation in Christendom which cannot reproach itself with a multitude of bloody tragedies occasioned by the belief in witch- craft. Histories of offences committed by these means would furnish a very instructive subject for homilies which might be read ia the churches ; but as to the errors of governments and J) magistrates, it were needless to give to them a sad publicity. The opinions of so many respectable and honest judges who have been so miserably duped by superstitions of this sort would be 410 PEISrCIPLES OF .THE PENAL CODE. more likely to confirm the people in error than to disabuse them of it. It is much to be desired that the witch of Endor could be got rid of. I do not know what evils this Jewish Canidia may have caused in Palestine, but she has produced frightful ones throughout Europe. The wisest theologians find great objections against that history, at least when taken in its literal and vulgar sense. The English law has the honour of being the first expressly to reject from its penal code the pretended crime of witchcraft. In the Code Theresa, though compiled in 1773, that pretended offence makes a considerable figure. VII. To publish Tables of Prices as a Check to Mercantile Extortion. — If the exaction of an exorbitant price cannot pro- perly be treated as an offence, and be subjected to a punishment, it may at least be regarded as an evU which it will be useful to put a stop to, if it can be done without producing a greater evil. As direct punishments are not admissible for this object, indirect means must be employed. Eortunately this is a kind of offence of which the evil, instead of being augmented, is diminished by increasing the number of offenders ; and it therefore should be the object of the law to increase the number as much as possible. Such an article is sold very dear ; the profit made from it is exor- bitant ; spread abroad this information, and sellers wiU flock in from all sides, and, by the mere effect of competition, the price will fall. Usury may be placed xmder the head of mercantile extortion. To lend money, is selling a sum of money in hand for a sum of money to be paid at a future day, at a time determined or unde- termined, depending or not upon certain events, and reimbursable aU at once, or in parts, &c. By forbidding usury, and making the transaction unlawful, and so increasing the risk, of course you augment the price. VIII. Publication of the Fees of Office. — Almost always fees are allowed in the departments of government for services ren- dered ; these fees are a part of the salaries of the officers. As an artisan sells his labour as dear as he can, so does a publip officer. PEINCIPLES OP THE PENAl CODE. 411 Competition, and the facility of going to anothet market, restrain this disposition within its just limits as respects ordinary labour; but there is no competition in a public office; the right of selling this particular kind of labour becomes a monopoly in the hands of the officers. Leave the price to the discretion of the seller, and it will presently have no other limits except those which are prescribed by the wants of the purchaser. Pees of office ought to be strictly limited by law ; otherwise, the extortions which will take place ought to be imputed less to the rapacity of the officers than to the negligence of the legislator. IX. Publication of Accounts in which the Nation is interested. — "When accounts are rendered at a fixed time, before a limited number of auditors, chosen perhaps by the influence of the accountant himself, and where nobody is called in specially to examine them, the greatest errors may pass without being seen, or without being corrected. But when accounts are published, neither witnesses, commentators, nor judges wiU. be wanting. Each item is examined. "Was this article necessary ? "Was it really needed, or was it only a pretext for expense ? Is the public served as cheaply as individuals ? Has not some con- tractor obtained an advantage at the expense of the state? Has no secret advantage been granted to a favourite ? Has nothing been given under false pretences ? Have not manoeuvres been used to prevent competition ? Is not something kept back in the acooimts? There are a hundred other questions of a simUar kind, which never can be answered in a satisfactory manner, except by publication of the accounts. In a particular committee some may want integrity, and others may want knowledge ; a mind alow in its operations passes over what it does not under- stand, for fear of betraying its want of quickness ; a lively under- standing will not subject itself to the study of details ; each leaves to the rest the fatigues of examination. But all the deficiencies of a small body will be made up by the body of the people. In that heterogeneous and discordant mass, the worst principles have their use as well .as the best; envy, hatred, imalioe, perform the task of public spirit; and these very pas- 412 PEINCIPLES OF THE PENAX CODE. sions, by reason of their activity and their perseverance, are the better adapted to scrutinize all parties, and to make the strictest and most exact examination. There seem to be but two grounds of exception, one relating to the expense of publication, the other in regard to services of a kind -which ought to remain secret. It would be useless to publish the accounts of a little parish, because the originals would be accessible to aU those who wished to examine them ; and if accounts of sums employed in secret service were published, you would no longer be able to obtain information of the designs of your enemies. X. Uniformity of Weights and Measv/res. — "Weights indicate the quantity of matter, measures the quantity of space. Their uses are : — 1st, The satisfaction of individuals ; 2nd, The termina- tion of disputes ; 3rd, The prevention of frauds. To establish uniformity in this respect throughout a single state, has been the object of many sovereigns. To find a common and universal measure for all nations, has been an object of re- search for many philosophers, and at length the French govern- ment has taken it in hand. This is a service truly honourable ; for what is there rarer or greater, than to see a government' labouring at one of the foundations essential to the union of the human race ! A uniformity of weights and measures, under the same govern- ment, and among a people who have, in other respects, the same language, is a thing, the utility of which may he made apparent without any great depth of reasoning. A measure of which one does not know the value, is the same as no measure. If the measures of two cities differ either in name or quantity, the com- merce of individuals is exposed to great mistakes or great diffi- culties. In this respect, these cities are strangers to each other. The nominal price of two articles may be the same, but if the measures are different the real prices are different. Constant attention is necessary, and distrust interrupts the course of busi- ness ; errors slip into transactions where good faith was intended, and fraud conceals itself under deceptive names. PEINCIPLES OF THE PENAL CODE. 413 Tkere are two means of introducing uniformity. The first is, to establish standard measures by public authority, to distribute them throughout the country, and to forbid the use of any other ; the second is, to establish such standards, and to leave the care of their adoption to the public convenience. I do not know any example in which the first of these methods has been followed ; the second was practised with success by the archduke Leopold in Tuscany. In England, there are not less than thirty Acts of Parliament upon this subject, and a thousand more maybe made in the same style, without success. 1st. The clauses which enforce confor- mity to the standard are not sufficiently binding. 2nd. There is no provision for the manufacture and distribution of standards ; a few have been scattered here and there, and the thing has been left to chance. A beginning should be made by furnishing each community with a legal standard ; a penalty might be imposed upon every workman who made weights and measures not conformed to that standard ; and finally, aU contracts according to other weights and measures might be declared null and void. But this last means would not be necessary ; the two first would suffice. Between different nations, the want of uniformity in this respect cannot produce so many mistakes, because the mere dif- ference of language puts every one upon his guard. However, there results from it much embarrassment to commerce; and fraud, favoured by mystery, often prevails over the ignorance of purchasers. An inconvenience, less extensive, but not less important, is felt in medicine. If weights are not exactly the same, especially for substances where the smallest quantities are essential, the pharmacopoeia of one coimtry can hardly serve for another, and may expose practitioners to fatal errors. This is a considerable obstacle to the free communication of science; and the same in- convenience is felt in other arts, of which the success depends upon delicate proportions. XI. Establishment of Standards of Quality. — It wpuld be 414 PEINCIPLES OF THE PENAL CODE. necessary to go very much, into details, to mention all that govem- raents might do for the establishment of the fittest criterions of the quality and value of a multitude of objects, which are sus- ceptible of diiferent tests. The touch-stone is an imperfect test of the quality and value of mixed metallic compositions of gold and silver. The hydrometer is a certain test, since identity of quality and identity of specific gravity always go together. Falsifications, the most important to be known, are those which may prove injurious to health, such as the mixture of chalk and burnt bones with flour, lead employed to remove the acidity of wine, or arsenic to refine it. Chemistry affords the means of discovering all these adulterations ; but much knowledge is needed for its application. The interference of governments with these matters should be limited to three points : — 1st, To encourage the discovery of means of proof, in cases where they are wanting ; 2nd, Spreading knowledge of these discoveries among the people ; 3rd, Defining the duties of those ofB.cers of government to whom functions of this sort are intrusted. XII. To establish Brands or Maries attesting the quantity or quality of Articles which ought to conform to a certain 8tanda/rd. — These marks are declarations or certificates under an abridged form. In these documentSj five points are to be considered : — 1st, Their object ; 2nd, The person whose attestation they bear ; 3rd, The extent and the details of the information they contain ; 4th, The distinctness and intelligibility of the mark ; 5 th, Its per- manence and indestructibility. The usefulness of these authehtic attestations cannot be doubted. They are successfully employed for the following purposes : — 1st. To give certainty to the rights of property. "We may trust to the prudence of individuals to make use of this precau- tion in what concerns themselves ; but, as far as relates to pubUo property, or to objects in deposit, it should be made an affair of the law. Thus, in England, everything that appertains to the ■ royal marine bears a particular mark, which the mercantile marine is not allowed to use. In the royal arsenals the imprint K!IlirCIPI,ES OP THE PENAL CODE. 415 of an arrow is made use of, and a peculiar thread is twisted into tte tissue of the cordage, whiph individuals are not permitted to employ. 2nd. To assure tte quantity and quality of mercantile articles for the benefit of purchasers. Thus, by the English statutes, marks are affixed to a great number of objects, as leather, bread, tin, silver ware, woollen clothes, stockings, and many other articles of trade. 3rd. To assure the payment of taxes. If the article subject to the tax has not the mark in question, it is a proof that the tax has not been paid. Examples are innumerable. 4th. To insure obedience to laws which prohibit importation. CHAPTEE XL To prevent Offences ly giving to many Persons an Interest to J prevent them. I SHALL cite a particular example, which may be referred to the preceding head as well as to this ; for an ofience is prevented either by increasing the difficulty of concealing it, or by giving to many persons an immediate interest to prevent it. The carriage of the mails in England had always been deficient in expedition and punctuality. The postmen loitered by the way, as their own convenience or profit required ; the innkeepers never hastened their departure. A.U these delays were so many little ofi'ences, — that is, violations of established rules. What remedy could be applied? "Watchfulness soon grew weary; penalties were gradually relaxed ; informations, always odious or embar- rassing, became rare ,- and abuses, suspended for a moment, pre- sently regained their ordinary course. A very simple means was hit upon, which required neither law, nor penalty, nor information, and which was aU. the better for not requiring them. This means consisted in combining two establishments, which hitherto had been separate, the transportation of the mails and 416 PEIIfCIPIES OP THE PENAL CODE. tte carriage of travellers. The success of this project was com- plete ; the celerity of the post was doubled ; and travellers were better served. This is worth the trouble of being analyzed. The travellers who accompany the postman are so many inspec- tors of his conduct ; he cannot escape their observation ; while he is excited by their praises, and by the reward he expects from them, he cannot be ignorant that if he loses time, these travellers wlU. have good reason to complain, and that they can inform against him without odium, or the reputation of doing it for pay. Such are the advantages of this little combination ! "Witnesses to the least fault ; the motive of reward substituted for that of punish- ment ; economy of informations and prosecutions, . the occasions of punishment rendered rare, and the two services, by their union, made more convenient, more prompt, and more economical ! I offer this happy idea of Mr. Palmer as a study in legislation. It is necessary to meditate upon what has been successfully accomplished in one kind, to learn how to conquer difficulties in another. By investigating the cause of success in particular cases, we may rise to general rules. CHAPTER XII. To facilitate the Means of recognising and finding Individuals. The greater part of offences are committed only by reason of the great hope which the offenders entertain of remaining unknown. Everything which augments the facility of recognising men, and of finding them, adds to general security. This is one of the reasons why very little is to be apprehended on the part of those who have a fixed abode, property, and a family. The danger is from those who, by their indigence, or their independence of aU ties, may easily conceal their proceedings from the eye of justice. Eegisters of the population, in which are inscribed the dwell- ing, age, sex, profession, and the marriage or celibacy of indi- viduals, are the first materials of a good police. PRIKCIPIES OF THE PENAI CODE. 417 The magistrate ougM to be authorised to demand an account from every suspected person of his means of livelihood, and to send to a place of security those who cannot prove either industry or income. There are two things to be observed on this subject. The rules of police ought not to be so minute and particular as to expose the citizens frequently to break them, nor should they be rendered vexatious by imposing numerous and troublesome re- straints. Precautions, necessary at certain times of danger or trouble, ought not to be prolonged into a season of quiet, as the regimen proper for sickness ought not to be kept up after the health is restored. The second observation is, to avoid shocking the national spirit. One nation could not endure the police of another. In the capital of China every one is obliged to wear his name upon his dress. This measure will appear useful, in- different, or tyrannical, according to the turn of national prejudices. Characteristic dresses have a relation to this end. Those which distinguish the sexes are a means of police as mild as it is salu- tary. Those which serve to distinguish soldiers, sailors, and the clergy, have more than one object, but their chief end is subor- dination. In the English imiversities the pupils have a particular dress, which is no restraint, except when they wish to transgress some rule. In charity-schools the pupils are made to wear a uniform, and even a numbered ticket. It is inconvenient that the surnames of individuals should be upon so irregular a footing. These distinctions, invented in the infancy of societies, to answer the wants of a hamlet, fulfil their object but imperfectly in a great nation. Many inconveniences arise from this confusion of names. The greatest of all is, that the testimony which depends upon a name is very vague ; sus- picion is cast upon a multitude of persons ; and the danger of innocence may become the protection of guilt. A new system of nomenclature might easily be devised, so that each individual in a nation should have a peculiar name, borne by no one but himself. In the actual state of things, the em- E B 418 PKIHCIPLES OP THE PENAI CODE. barrassments of a change ■would, perhaps, exceed its advantages ; but it might be well to prevent this disorder in a gromng colony. It is a common usage among English sailors to trace their family and baptismal name upon the wrist, in distinct and indelible characters. It is done that they may be recognised in case of shipwreck. If it were possible for such a practice to become universal, it would furnish a new aid to morals, a new power to the laws, an almost infallible precaution against a multitude of offences, especially all kinds of fraud, for the success of which a certain degree of confidence is necessary. Who are you ? "Who am I dealing with ? There would be no room for prevarication in the answer to this important question. This means, by reason of its very energy, would favour personal liberty, by permitting the rigours of procedure to be relaxed. Imprisonment, where it has no object except securing the person, would be less often necessary, if men were thus held as it were by an invisible chain. Doubtless there are plausible objections. In the course of the French revolution, how many persons owed their safety to a disguise which an imprint of this nature would have rendered impossible ! Public opinion in its actual state opposes an insur- mountable obstacle to this institution ; but patience and address may change opinion ; especially were a beginning made by some great examples. If it were the custom to print marks upon the foreheads of the great, an idea of power and of honour would be associated with them. The women in the islands of the South Sea submit to a painful operation in printing certain figures upon the skin, to which an idea of beauty is attached. The imprint is made by a multitude of punctures which penetrate to the quick, and into which coloured powders are rubbed. PBINCtPLES OF THE PElfAL CODE. 419 CHAPTEE XIII. To increase the Difficulty of Escape. These means depend very much, upon the geographical situation of a country, and upon natural and artificial barriers. In Eussia, the sparseness of the population, the severity of the climate, the difficulty of communications, give a power to justice, of which it would hardly be thought capable in so extensive a coimtry. At Petersburg and Eiga, passports cannot be obtained, unless the iatention of departure has been several times advertised in the gazettes. This precaution agaiast fraudulent debtors adds to the security of commerce. Everything which increases the facility of transmitting and spreading intelligence, may be referred to this head. CHAPTEE XIV. To diminish the Uncertainty of Prosecutions and Punishments. . I DO not intend to enter here upon the vast subject of procedure ; that wUl be the subject, not of a chapter, but of a separate work. I confine myself to two or three general observations. If an offence has been committed, it is for the interest of society that the magistrate to whose cognisance it belongs should be informed of it ; and informed in such a, manner as to be authorised to inflict a punishment. If it be alleged that an offence has been committed, it is the interest of society that the truth or falsehood of that allegation be subjected to proofs, therefore the rules of testimony and the forms of procedure ought to be such as, on the one hand, to admit every true infor- mation, and on the other, to exclude every false information, that is, everything which is more likely to mislead than to enlighten. Nature has placed before us a model of procedure. Consider what passes in the domestic tribunal ; examme the conduct of 420 PEINCIPLES OF THE PEKAL CODE. the father of a family towards his children, his domestics, of which he is the head. We shall find there the original features of justice, which can no longer be recognised, after they have been disfigured by men incapable of discerning the truth, or in- terested to disguise it. A good judge is only a good father, acting upon a much larger scale. The means which are adapted to guide a father in the search after truth, ought equally to be good for a judge. It is this model of procedure upon which justice began, and from which it ought never to have departed. It is true that a confidence may be felt in the father of a family which cannot be felt in a judge, because a judge has not the same motives of affection, and may be perverted by personal interest. But this only proves that in case of a judge, it is necessary to take precautions against partiality and corruption which are not needed in the domestic tribimal. It does not prove that the forms of procedure or the rules of testimony ought to be different. The English law admits the following principles : — 1st. That no one ought to be a witness in his own case. 2nd. That no one should be received as his own accuser. 3rd. That the testimony of persons interested in a cause ought not to be taken, 4th. That hearsay evidence ought never to be admitted. 5th. That no one ought to be put on trial a second time for the same offence. It is not my intention to discuss here these rules of testimony to which may be applied that description — -penitus toto divisos orle Britannos — Britain whoUy separate from the rest ofthe world. In a treatise on procedure in general, a proper place will be found to inquire whether the EngUsh jurisprudence, superior in some respects to that of all nations, owes its superiority to to these maxims, or whether they are not the principal cause of that weakness in the executive power of justice whence there results in England an ineffective police and such frequency of offences. AU I shall say here is, that every precaution which is not abso- rEITTCIPtES OP THE PENAL CODE. 421 lutely necessary for tte protection of innocence affords a dangerous Inrking-place to crime. What maxims of procedure can be more dangerous than those which put justice in opposition to itself, and which establish a kind of incompatibility between its duties ? When it is said, for example, that it is better that a hundred of the guilty should escape than that one innocent person should perish, a dilemma is supposed which does not exist; the security of innocence may be complete without favouring the impunity of crime ; indeed, it can only be complete on that condition ; for every culprit who escapes threatens the public security ; and, so far from being a protection to innocence, such an escape exposes innocence to become the victim of a new offence. To acquit a criminal is to commit by his hands aU the offences of which he is afterwards guilty. The difficulty of proceeding against offences is a great cause of feebleness in the executive power of justice, and of impunity to crime. When the law is clear, when the judge is appealed to ! immediately after the supposed offence, the function of accuser is ahnost confounded with that of a witness. When the offence is committed under the eye of the judge, there are, so to speak, but two persons necessary in the drama — the judge and the deliu- quent. It is distance of time and place which separate the func- tion of the witness from that of the judge. But it may happen that all the witnesses of the facts cannot be suddenly collected, or that the offence is not discovered tiU long after its commission, or that the accused alleges facts in his defence which it requires time to verify — aU these causes may bring on delays. Delays give occasion to incidents which produce new delays. The pro- cess of justice becomes complicated, and, in order to follow out this chain of operations without confusion or negligence, it is necessary to intrust its management to a particular person. Hence results the function of an accuser. The accuser may either be one of the witnesses, or a person interested in the affair, or a public officer specially appointed for that purpose. The judicial functions have often been divided, so that the judge who receives the testimony while it is recent, has not the 422 PEUfCIPLES OF THE PENAI CODE, right to decide ; but is obliged to send the affair to another judge, who, unless the evidence were thus collected, would have no leisure to attend to it till the proofs were half effaced. There have been established, in most countries, a great number of use- less formalities, and it has become necessary to create officers to attend to those formalities. The system of procedure is so com- plicated that it has become an abstruse science ; he who wishes to prosecute an offence is obliged to put himself into the hands of an attorney, and the attorney himself cannot go on without the aid of another man of the law of a superior class, who directs him by his counsels, and who speaks for him. To these disadvantages, two others must be added : — 1st. Legislators, by a strange piece of self-contradiction, have often closed aU access to the tribunals against those who have the most need of their assistance, by subjecting proceedings at law to taxes, the effect of which is little considered. 2nd. There is a public disfavour attached to all those who lend their aid, in quality of accusers, to the execution of the laws, — a stupid and pernicious prejudice, which legislators have often had the weakness to encourage, without ever having made the slightest effort to subdue it. It is easy to see the consequence of this accumulation of delays and discouragements. The laws are not executed. If a man could address the judge at once, and tell what he has seen, the expense to which this procedure would subject him would be but a trifle. In proportion to the number of intermediate steps which he is obliged to take his expenses are increased. When to this we add loss of time, vexations, and the uncertainty of succeeding, it is astonishing that men can be found bold enough to engage in such a pursuit. There are but few, and there would be stiU fewer if those who adventure in this lottery knew as well as the lawyers what it will cost, and how many chances there are of failure. These difficulties would vanish by the mere institution of a pubUo accuser, clothed with the character of a magistrate, who should conduct'all prosecutions at the public expense. I^ormers PKnSrOIPLES OP THE PENAL CODE. 433 who expected pay would require but a moderate compensation. A hundred gratuitous accusers would present themselves to one who would demand pay for his services.* Every law, herag put into force, would manifest its good or bad effects ; the wheat would be winnowed from the chaff. Good laws would be appre- ciated ; bad laws would be repealed. Informers, animated by pubUo spirit, and rejecting all pecuniary reward, would be heard with due respect and confidence ; and delinquents could no longer escape the punishment of their offences by a bargain with the prosecutor. It is true that in England, in all grave cases, the accuser is forbidden to make a compromise with the accused, without the permission of the court; but although this prohibition were universal, what possibility is there of its observance in cases where it is the interest of both parties to elude it ? CHAPTEK XV. To prohibit Aeeessory Offences in order to prevent the Principal Offence. Acts which are related to a pernicious event as causes may be considered in relation to the principal offence, as accessory offences. The principal offence being well determined, there may be distinguished as many accessory offences as there are acts which may serve as preparations for the principal offence, and which manifest, on the part of those who perform them, an intention of committing it. ITow, the more distinctly these preparatory acts are poiated out and prohibited, the more chances there are of * The smallest expense of a prosecution in an EngUsh court of justice is twenty-eight pounds sterling,— a sum almost sufficient for the yearly Bubsistence of a common family. This sum comes out of the pocket of the prosecutor. Under such a system, it is almost a miracle that there are any proseoutionB. 434 PETNCIPLBS OP THE PENAI CODE. preventing tlie principal offence. If the offender is not stopped at the first step, he may be at the second, or the third. It is thus that a vigilant legislator, like a skilful general, takes care to reconnoitre aU the exterior posts of the enemy, in order to interrupt his enterprises. Along all the defiles, and all the passes, he stretches a chain of works, diversified according to circum- stances, but connected together in such a way that the enemy finds at each step new dangers and new obstacles. If we consider the practice of legislators we shall find none who have laboured systematically upon this plan, and none who have not followed it to a certain extent. Offences of the chase, for example, have been divided into many accessory offences, according to the nature of the game, or the kinds of nets or instruments necessary to take it. Smuggling has been attacked, by prohibiting many preparatory acts. Counterfeiting has been attacked in the same manner. I shall give some other examples of what might be done in this way against homicide and other corporal injuries. The prohibition to carry arms only useful for attach and easy to he concealed. It is said that an instrument is made in HoUand in the form of a needle, which is shot through a tube, and which inflicts a mortal wound. The manufacture, the sale, the possession of these instruments ought to be forbidden, as accessary to murder. Ought pocket-pistols, such as English highwaymen use, to be prohibited ? The utility of such a prohibition is problematical. Of aU methods of robbery, that which makes use of fire-arms is least dangerous to the person attacked. In such a case, the mere threat is usually sufficient to accomplish the object. The robber who began vsrLth shooting, would not only commit an act of useless cruelty, he would disarm himself; while by reserving his fije, he stands on the defensive. He who uses a club or a sword, has not the same motive to abstain from striking ; and one blow becomes the motive for a second, in order to deprive the victim of power to pursue. The prohibition to sell poisons demands a catalogue of poisonous PRINCIPLES OP THE PENAI CODE. 435 substances. The sale of them cannot be absolutely prohibited ;* aU that can be done is, to regulate it, to subject it to precau- tions, to require that the seller should know the purchaser, that he has 'witnesses of the sale, that he enters it ia a separate book ; and still, some latitude must be left for unexpected cases. These rules, to be complete, demand many details. Would their advantages counterbalance the embarrassments they would produce ? That depends upon the manners and habits of a people. If poisoning is a frequent offence, it wiU be necessary to take these indirect precautions. They would have been proper in ancient Rome. Accessory offences may be distinguished into four classes. The first class imply a formed intention to commit the pria- cipal offence. Offences of this kind are comprehended imder the general name of attempts, preparations. The second class do not imply a criminal intention actually formed, but place the individual in a situation in which there is reason to fear that he may presently conceive a criminal design. Such are gaming, prodigality, and idleness, when poverty is added to it. Cruelty towards animals is an incentive to cruelty towards men, &c. Accessory offences of the third class do not imply any criminal intention, actual or probable, but only accidentally possible. Offences of this kind are created by those regulations of police intended to prevent calamities. "WTien, for example, the sale of certain poisons or the sale of gunpowder is forbidden, the violation of these rules, separate from any criminal intention, is an offence of this third class. The fourth class is composed of presumed offences, that is, of acts which are considered as proofs of an offence. They may be called evidentiary offences; acts injurious or otherwise in themselves, but furnishing a presumption of an offence com- mitted. By an English statute, the concealment by the mother of the birth of an illegitimate child, is punished as murder, because such conduct is regarded as a sure proof of infanticide. * Taken in a certain dose, every active medicine is a poison. 426 PEUfcrPLES of the penai, code. By another statute, it is a capital crime for men to meet together armed and disguised, because this is supposed to be a proof of a formed design to offer violent resistance to the officers of the customs. By another statute, it is an offence to have stolen goods in possession without being able to render a satisfactory account how they were obtained ; because this cir- cumstance is regarded as proof of participation in the theft. By another statute, it is an offence to obliterate the marks upon ship- wrecked property, because such an act indicates intention of theft. These offences, founded upon presumptions, suppose two things : — 1st, Distrust of the system of procedure ; 2nd, Dis- trust of the wisdom of the judge. The English legislature fearing that juries, too prone to lenity, would not see in these presumptions a certain proof of guilt, has thought fit to erect the Act which furnishes the presumption into a second offence, an offence distinct from every other. In those countries in which a perfect confidence is placed in the tribunals, these Acts may be arranged under their proper head, and be considered merely as presumptions, from which the court is to draw such inferences as the circumstances warrant. In relation to accessory offences, it is essential to lay down three rules by way of memento to the legislator. 1st. "Wbenever a principal offence is created, all preparatory acts and simple attempts ought also to be prohibited, ordinarily under a less penalty ban the principal offence. This rule is general, and the exceptions ought to be founded upon particular reasons. 2nd. To the description of the principal offence there ought to be appended a description of all accessory, preliminary, and con- comitant offences which are susceptible of a specific description. 3rd. In the description of these accessory offences, care must be taken not to impose too many restraints, not to entrench too far upon individual liberty ; not to expose innocence to danger by conclusions too precipitate. The description of an offence of this kind would be almost always dangerous, if it did not include a clause leaving power to the judge to estimate the degree of pre- PEmcrPLES OF THE PENAl CODE. 427 Bumption to be derived from it. In ttat case, creating an accessory offence is pretty much, the same thing as suggesting the fact in question to the judge, by way of instruction, as an indicative circumstance ; but not authorizing him to draw any conclusion from it, if he see any special reason to regard the indication as inconclusive. If the punishment of a preliminary offence, or of an offence begun but not finished, were the same with that of the principal or complete offence, without allowing anything for the possibility of repentance or a prudent stopping short, the delinquent per- ceiving that he had already incurred the whole danger by the simple attempt, would feel himself at liberty to consummate the offence without incurring any further risk. CHAPTEE XVI. The Culture of Benevolence. The sentiment of benevolence is distinct from the love of repu- tation. Each may act without the other. This sentiment may originate in an instinctive principle, the gift of nature ; but, in a great measure, it is the produce of culture, the fruit of educa- tion. "Where is the greater amount of benevolence to be found, among the English or the Iroquois, in the infancy of society or its maturity ? If the sentiment of benevolence be susceptible of increase, and that it is cannot be doubted, that increase is to be obtained by the aid of another principle of the human heart, the love of reputation. When the moralist paints benevolence with the most amiable features, and selfishness, hardness of heart, in the most odious colours, at what does he aim? He seeks to unite to the purely social principle of benevolence, the demi- personal and demi-social principle of reputation. He seeks to combine them ; to give them the same direction ; to strengthen them one by the other. If his efforts are crowned with success, to which of these two principles ought he to ascribe the honour. 438 PBnrciPLES op the penal code. IN'eitlier to tlie one nor to the otter exclusively, but to their reci- procal concourse ; to tlie sentiment of benevolence as the imme- diate cause ; to the love of reputation as the remote cause. He who yields with pleasure to the mild promptings of the social principle knows not, and does npt desire to know, that it is a less noble principle to which his benevolence owes its impulse. Such is the disdainful delicacy of the better element of our nature; it is unwUling to owe its birth to anything but to itself; it blushes at every foreign association. There are two objects for the legislator : — 1st, To give new force to the sentiment of benevolence ; 2nd, To regulate its appli- cation according to the principle of utility. 1st. The legislator who wishes to inspire a people with humanity ought himself to give the first example of it. Let him show the utmost respect, not only for the lives of men, but for all the circumstances which have an influence upon their sensi- bility. Sanguinary laws have a tendency to render men cruel, by fear, by imitation, and by fostering a spirit of revenge. Mild laws humanize the manners of a nation ; the spirit of the govern- ment is reproduced among the citizens. The legislator ought to forbid everything that serves as an incitement to cruelty. The barbarous gladiatorial shows intro- duced at Eome, in the latter times of the republic, contributed, without doubt, to inspire that ferocity of spirit which the Eomans displayed in their civil wars. "WiU a people accustomed to despise human life in their sports respect it in the rage of passion ? It is proper, for the same reason, to forbid every kind of cruelty to animals, whether by way of amusement or for the gratification of gluttony. Cock-fights and bull-fights, the chase of the hare and the fox, fishing, and other amusements of the same kind, necessarily suppose a want of reflection or a want of humanity ; since these sports inflict upon sensitive beings the most lively sufferings, and the most lingering and painful death that can be imagined. Men must be permitted to kill animals ; but they should be forbidden to torment them. Artificial death may be rendered less painful than natural death by simple pro- PEUfCIPLES OF THE PENAL CODE. 439 cesses, -well -worth the trouble of being studied, and of becoming an object of police. "Why should the law refuse its protection to any sensitive being ? A time will come when humanity wiU spread its mantle over everything that breathes. The lot of slaves has begun to excite pity ; we shall end by softening the lot of the animals which labour for us and supply our wants. I do not know whether the Chinese legislators, in establishing their minute ceremonials, have had for their object the cultivation of benevolence, or only the maintenance of peace and subordina- tion. In China, politeness is a kind of worship or ritual, the great object of education, and the principal science. The bodily movements of the Chinese, always regulated, always prescribed by etiquette, are almost as uniform as those of a regiment which goes through the manual exercise. This pantomime of bene- volence may be destitute of reality, as a devotion loaded with minute observances may have little to do with morals. So much restraint does not seem to accord well with the human heart ; and such demonstrations of respect do not confer any obligation, because they have no merit. There are principles of antipathy, which are sometimes so inter- laced with the political constitutions of states, that it is very diffi- cult to extirpate them. There are hostile religions which excite their partisans to hate and to persecute each other ; hereditary feuds between hostile families ; privileges of rank which erect LDSurmountable barriers between the citizens ; results of conquest, where the conquerors have not been able to mix and incorporate themselves with the conquered people ; animosities founded upon ancient wrongs ; the rule of factions which rise with a victory, and fall with a defeat. In this unfortunate condition of things, hearts are oftener united by hatred than by love. Men must be freed from fear and oppression, before they can be taught to love each other. The destruction of prejudices which make men hostile, is one of the greatest services that can be rendered to morals. Mungo Park in his African travels, has represented the blacks in a most interesting point of view ; their simplicity, the strength 430 PEINCTPLES OF THE PENAL CODE. of their domestic affections, the picture of their innocent manners, has increased the public interest in their favour. Satirical ■writers weaken this sentiment. After reading Voltaire, does one feel favourably disposed towards the Jews ? If that author's benevolence had not been eclipsed by his prejudices, whUe exposing the degradations to which the Jews are subjected, he would have explained by that very fact the less favourable traits of their character, and would have exhibited the remedy by the side of the evil. The most dangerous assaults upon benevolence have been made by exclusive religions, having incommunicable rights, inspiring intolerance, and representing unbelievers as infidels, the enemies of God. In England, better than elsewhere, is understood the art of exciting beneficence by the publicity which is given to it. Is it wished to establish a charitable institution which requires many contributors ? — a committee of the most active and distin- guished benefactors is appointed; the amount of contributions is announced in the newspapers ; and the names of the subscribers are printed from day to day. This publicity answers two ends. Its immediate object is, to guarantee the receipt and employ- ment of the funds ; but it is also a bait to vanity by which bene- volence gains. In charitable societies all the annual subscribers are named directors ; the control they exercise, the little state they form, interest them in their office. They love to follow up the good they have done, and to enjoy the power which it confers. The benefactors being thus brought into contact with the unfortunate, misery being thus placed before their eyes, benevolence is strengthened and confirmed ; it grows cool by the removal of the object, but warms again by its presence. There are more of these benevolent societies in London than there eve;* were convents in Paris. Many of these charities have particular objects : the bHnd, orphans, the maimed, widows, sailors, the children of clergymen. Each individual is more touched by one kind of misery than by PEnfCIPLES OP THE PENAIi CODE. 431 another, and his sympathy almost always depends upon some per- sonal circumstance. Of course, there is much art in diversifying charities, in separating them into many branches, in order that every kind of sensibility may be made available, and that none may be lost. It is astonishing that more advantage has not been taken of the disposition of women, among whom the sentiment of pity is stronger than among men. Before the revolution, there were two institutions in Prance well adapted to this end : the BaugMers of Chwrity, who devoted themselves to the service of the hospitals, and the Society of Maternal Charity at Paris, composed of mar- ried ladies, who visited poor women in their pregnancy, and aided them in the care of their infants. 2nd. The sentiment of benevolence is liable to deviate from the principle of general utility. It cannot be set right except by instruction. Command and force do not avail. Men must be persuaded, enlightened, taught little by little, to distinguish the different degrees of utility, and to proportion their benevolence to the extent of its object. The best model is traced by Penelon in that sentence which paints his heart : " I prefer my family to myself, my country to my family, mankind to my country." It should be the object of public instruction to direct the affections of the citizens towards the end of utility ; to repress vagaries of benevolence ; and to make each individual perceive how the general interest involves his own. Men should be taught to blush at that spirit of family, at that spirit of caste, at that spirit of party, sect or profession, which militates against the love of country ; and at that unjust patriotism which glories in the hatred of other nations. They should be dissuaded from assuming, through a misplaced pity, the advocacy of deserters, smugglers, and other delinquents who sin against the state. They should be disabused of that false notion that there is any humanity in favouring the escape of a criminal, in lending im- punity to crime, in encouraging mendicity to the prejudice of industry. The attempt should be made to give to aU. their senti- ments of benevolence the most advantageous proportion, by 433 PEINCIPLES OF THE PENAt CODE. pointing out the littleness and the danger of those caprices, antipathies, and momentary attachments, -which incline the halance against general utility and permanent interest. The more men hecome enlightened, the more they will contract a spirit of general henevolence, hecause the progress of enlightenment mates it evident that the interests of men are oftener harmonious than discordant. In commerce, nations not well informed treat each other as rivals, who cannot rise ex- cept upon each other's ruins. The work of Adam Smith is a treatise upon universal benevolence, because it shows that commerce is equally advantageous to all parties ; that each party profits in its own way, according to its natural means ; and that nations are partners, not rivals, in the great social enterprise. CHiPTEE XVII. Employment of the Motive of Honov/r, or the Popular Sanction. It should be the object of the legislator to increase the force of this motive, and to regulate its application. The force of public opinion is in the compound ratio of its extent and its intensity. Its extent is measured by the number of sufErages ; its intensity by the degree of blame or of appro- bation. There are many means of increasing the power of opinion so far as concerns its extent : the principal are — liberty of the press, and publicity in all proceedings in which the nation is interested ; publicity of the tribunals ; publicity of accounts ; publicity of state consultations when secrecy is not required for some particular reason. An enlightened public, the depository of the laws and of the archives of honour, and administrator of the moral sanction, forms a supreme tribunal, which decides upon all cases and all persons. By publicity in affairs, this tribunal is enabled to collect proofs and to form a judgment; by the liberty of the press it is enabled to pronounce its judgment, and to cause it to be executed. PBIlfCIPiES OF THE PENAX CODE. 433 There are also a number of means for increasing the intensity of the power of opinion ; such as punishments which bear some character of ignominy, or rewards of which the principal object is honour to those who receive them. There is an art of guiding opinion, without the public suspect- ing how it is led. It consists in arranging things so that the act which you wish to prevent cannot be performed without first doing something else, which popular opinion condemns already. If it be desired, for example, to secure the payment of an impost, you may exact from him whose duty it is to pay, a certi- ficate or an oath that he has paid. To take a false oath, to fabricate a false certificate, under what- ever pretence, are offences which the public is prepared beforehand to stamp with disapprobation. So that here we discover a sure means of rendering an offence infamous, which without this addition would not be so. Sometimes a mere change in the name of a thing is enough to change the sentiments of a nation. The Eomans abhorred the name of Mng, but they could put up with the titles oi dictator and emperor. Cromwell did not succeed in seating himself upon the throne of England, but under the name of protector, he enjoyed more than kingly authority. Peter I. of Russia abdicated the title of despot for himself, and he ordered that the slaves of the nobles should henceforth be called only subjects. If the people were philosophers, this expedient would not answer; but on this point philosophers are as weak as the people. What deception in the words liberty and equality ! "What con-< tradictions between that luxury which all condemn, and fhatpuhlic prosperity which aU. admire ! The legislator ought to beware how he strengthens public opinion in cases where it is in opposition to the principle of utility. For this reason he ought to efface from the laws every vestige of those pretended offences of heresy and witchcraft, lest he give a legal foundation to superstitious notions. If he does not dare to attack errors, too generally diffused, at least he ought not to furnish them with a new sanction. 434 PRINCIPLES OF THE PENAl COLE. It is very difficult to employ tte motive of honour as a means to aid the enforcement of the laws. Pecuniary rewards paid to informers, have failed of their object. The motive of gain has been opposed by that of shame ; and the law, instead of increas- ing its power, has weakened itself by offering an inducement condemned by public opinion. Persons are afraid of the suspicion of acting from a mean motive. Eewards not well selected, repulse, instead of attracting, and deprive the law of much gratuitous assistance. The most powerful means of producing an important revolu- tion in public opinion, is, to strike the 'mind of the people by some great example. Thus Peter the Great himself, gradually passing through all the gradations of rank, taught his nobility, by his own example, to bear the yoke of military subordination. Thus Catherine II. surmounted the popular prejudice against inoculation, by trying it, not upon criminals, but on herself. CHAPTEE XVIII. Employment of the Motive of Religion. The culture of reKgion has two objects : — 1st, To increase the power of that sanction ; 2nd, To give that power a proper direction. If its direction be bad, it is plain that the less power that sanction has, the less evil it will do. "With respect then to religion, the flist thing to be examined is, its tendency ; the search for means to augment its power, is but a secondary object. Its tendency ought to be conformable to the plan of utility. As a sanction, it is composed of punishments and rewards. Its punishments ought to be attached to those acts which are injurious to society, and to such acts alone. Its rewards ought to be pro- mised to acts ihe tendency of which is advantageous to society, and to no acts beside. This ought to be its fundamental dogma. The only means to judge of its tendency is to consider it solely in its relation to the good of political society. Every other part PEnfCIPLES OE THE PENAI, CODE. 435 of it is indifferent; and whatever is indifferent in religious belief is liable to become pernicious. Every article of faith is of necessity injurious so soon as the legislator, ia order to favour its adoption, resorts to coercive motives, — ^to motives derived from the fear of punishment. The persons whom he wishes to influence may te considered as forming three classes : those who are already of the same opinion with the legislator; those who reject that opinion; those who neither adopt nor reject it. For those who conform voluntarily, a coercive law is not neces- sary ; for nonconformists it is useless, as is proved by the very fact of their nonconformity ; it does not fulfil its purpose. When a man has formed his opinion, can punishments make him change it ? The very question is an insult to common sense. Punishments have rather a contrary effect ; they rather serve to confirm one's opinion than to shake it, partly because the employ- ment of constraint is a tacit avowal that arguments are wanting ; partly because recourse to violent means produces an aversion to opinions so sustained. Punishment never can oblige a man to believe, but only to pretend that he believes. Those who, through conviction, or the pride of honour, refnse to pretend a belief they do not feel, are exposed to the evil of punishment, — that is, to persecution; for what is ceiHed jiersecu- tion is an evil which is not compensated by any advantage ; it is a pure loss ; and though administered by the hand of the magis- trate, it is precisely the same in nature, but much severer in degree, than if it had been the work of anojcdinary malefactor. Those persons, less strong-minded, and less noble, who escape by a false declaration, yield to threats, and to the immediate danger which presses them; but the momentary pxmishments thus avoided turn into a punishment of conscience, if they have any scruples, and into a punishment of contempt upon the part of society, which cannot endure the baseness of such hypocritical retractions. In such a state of things, what happens ? A portion of the citizens must accxistom themselves to disregard the opinions of E p 3 436 PEINCIPLES OF THE PENAI CODE. another part, in order to be at peace -with, themselves. There springs up an art of making subtle distinctions between innocent falsehoods and criminal falsehoods ; there is established a class of privileged lies, permitted as a defence against tyranny, — a set of perjuries which are esteemed innocent, and false signatures con- sidered as mere formalities. In the midst of these subtUties respect for truth disappears ; the limits of good and evil are confounded ; a train of less pardonable falsehoods is introduced under cover of those already described ; the tribunal of opinion is divided ; the judges who compose it do not follow the same law ; they do not clearly know what degree of dissimulation they ought to condemn or what they ought to excuse. The votes are scattered and contradictory, and the moral sanction, having no longer a uniform regulator, grows weak, and loses its influence. Thus, the legislator who imposes religious tests becomes the corrupter of the nation. He sacrifices virtue to religion, though religion itself is a good only so far as it is the auxiliary of virtue. The third class of the community, according to the division above stated, comprises those persons who, at the establishment of the penal law for the regulation of belief, had yet no settled opinion one way or the other. "With respect to these, it is likely that the law may have an influence upon the formation of their opinions. Seeing danger upon one side, and security upon the other, it is natural that they should examine the arguments in favour of an opinion which the law condemns, with a degree of fear and aversion, that they will not feel for the arguments which support the favoured opinion. The arguments which we desire to find true, make a more lively impression than those which we hope to find false ; and thus a man comes to believe, or rather not to reject, not to disbelieve a proposition which he would not have adopted had his inclinations been left free. In this last case, the evU, though not so great as in the two former, does not cease to be an evil. It may happen, but it does not always happen, that the judgment yields entirely to the affec- tions ; and even though it should so happen, though the belief should be as strong as it can be, if fear enters at all into the PBHTCIPXES OF THE PENAL CODE. 437 motives of that belief, the mind is never perfectly tranquil. There remains a secret dread that what is believed to-day may be , disbelieved to-morrow. The conviction of a clear moral truth is never shaien ; but belief in a mere dogma is always more or less wavering. Thence arises that impatience towards those who . attack it. Examination and discussion are dreaded by men who feel the ground shaking under their feet. It wUl not do to allow any alterations in a building which lacks a foundation. The understanding is enfeebled ; the mind seeks only for perfect repose in a sort of blind credulity ; it collects together all the errors which have any affinity with its own ; it fears to explain itself clearly as to the possible and impossible, and seeks to ■confound all their limits. It delights in all sorts of sophistries, in everything that shackles the human understanding, in every- thing which seems to show that no certain dependence can be placed upon reason. It acquires an inclination, an unhappy liexterity for rejecting evidence ; for giving weight to half proofs ; for hearing but one side ; for evading the decisions of rea- son. In one word, according to this system, it is necessary to put a bandage about the eyes, lest we be wounded by the light of day. Thus every penal means employed to augment the power of religion, acts as an indirect means against that essential part of laorals, which consists in respect for truth, and respect for public opinion. AH enlightened minds now hold this doctrine ; but there are very few states which have yet adopted it. Violent persecutions have ceased, but moderate persecutions stUl exist, civil penalties, political incapacities, menacing laws, a precarious toleration; — a humiliating situation for large classes of men, who me their tranquillity only to a tacit indulgence, to a continued ■fardon. I To form a clear idea of the advantage which the legislator may derive from augmenting the force of the religious sanction, it is necessary to distinguish three cases : — 1st, That in which it is entirely under his control; 2nd, That in which other persons share the influence with him ; 3rd, That in which it depends upon some foreign personage. In this last case, the sove- 438 PEINCIPIBS OP THE PBNAl CODE. reignty is really divided between two magistrates, tlie spiritual, as he is called, and the temporal. The temporal sovereign is in per- petual danger of seeing his authority disputed or snatched away by his rival, and everything he does for the augmentation of the religious sanction will produce a diminution of his own power. "We find in history a picture of the effects which result from such a struggle. The temporal magistrate commands such or such an action; the spiritual magistrate forbids it. "Whichsoever side the citizens take, they are punished by the one, or by the other ; proscribed, or damned ; they are placed between the fear of the gaUows, and the dread of hell-fire. In Protestant countries, the clergy are essentially subordinate to the political power. Dogmas do not depend upon the prince, but those do who interpret the dogmas. Now the right of inter- pretation is pretty much the same thing with the right of pro- mulgation. Thus in Protestant countries, religion is easily modelled, according to the plans of political authority. Married priests are more like citizens ; they do not form a phalanx which can become formidable ; they have neither the power of the con- fessional, nor that of absolution. But if we consider only facts, whether ia Catholic or Protes- testant countries, religion, it must be admitted, has had too great a share in the misfortunes of mankind. It seems to have been oftener the enemy than the instrument of civil government. The moral sanction never has more power than when it agrees with utility ; but unfortunately the religious sanction appears to have most power in the very cases where it is most opposite to utility. The inefficacy of religion, so far as relates to the promotion of political good, is the ceaseless subject of declamations on the part of those who have the greatest interest to exaggerate its good effects. Not powerful enough to produce good, its power of doing evil has always been too great. It was the moral sanction which animated Codrus, Eegulus, the Eussells, and the Sidneys. It was the religious sanction which made Philip II. the scourge of the Low Countries, Mary the tyrant of England, and Charles IX. the butcher of France. PEINCIPLES OF THE PENAL CODE. 439 The comiiioii solution of this difficulty is to attribute all the good to religion, and aU the e-vil to superstition. But this dis- tinction, in this sense, is purely verbal. The thing itself is not changed because a man chooses to describe it, in one case, by the word religion, and by the word superstition in another. The motive which acts upon the mind is precisely the same in both cases. It is always the fear of evil and the hope of good on the part of an aU-powerful Being, of whom different ideas are enter- tained. In speaking of the conduct of the same man, upon the same occasion, some attribute to religion what others ascribe to superstition. Another observation, as trivial as the first, and as weak as it is trivial, is the remark so often repeated, that it is not just to argue against the use of a thing from its abuse, and that the best instru- ments do the most harm when misemployed. The futility of this argument is obvious ; it consists in caUing the good effects of a thing its use, and in stigmatizing the bad effects as its abuse. To say that you ought not to argue from the abuse of a thing against its use, is to say that, in making a just appreciation of the tendency of a cause, you ought to consider only the good, and not the evil it produces. The instruments of good, wrongly employed, may often become instruments of evil ; that is true ; but the principal characteristic of perfection in an instrument is not to be liable to be so misemployed. The most efficacious ingredients in medicine may be converted into poisons ; I admit it ; but those which are dangerous are not so good, upon the whole, as those which answer the same purpose, if such there are, without being liable to the same abuses. Mercury and opium are very useful; bread and water are stiU more so. I have spoken without evasion, and with perfect freedom. I have elsewhere explained the utility of religion, but I cannot here omit to observe that it tends more and more to disengage itself from futUe and pernicious dogmas, and to reconcile itself to sound morals and to sound politics. IrreHgion, on the other hand, has been manifested in our day under the most hideous forms of absurdity, of immorality, and of persecution. This experience is 440 PMNCIPXES OF THE PENAL CODE. enougli to show all weU-disposed minds towards what end they ought to direct their efforts. But if the government should act too openly in favour of this salutary direction, it would fail of its end. It is freedom of inquiry which has corrected the errors of the ages of ignorance, and brought back religion towards its true object. Freedom of inquiry vrill complete the purification of reli- gion, and its reconciliation with public utility. This is not the place to examine all the services which religion may render, either as a consolation to the woes inseparable from humanity; or as moral instruction best adapted to the most numer- ous class of society; or finally as a means of exciting beneficence, and of producing acts of devoted virtue, which perhaps could hardly be obtained by the power of mere earthly motives. The principal employment of religion, in civil and penal legis- lation, is to give a new degree of force to oaths, an additional support to confidence. An oath includes two different ties, one religious, the. other moral ; one obligatory upon all, the other, obligatory upon those only who have a certain set of opinions. The same formula which, in case of perjury, purports to expose the offender to reli- gious penalties, exposes him, at the same time, to legal punish- ments and to public contempt. The religious obligation is the striking part ; but the main force of the oath depends upon the moral tie. The influence of the first is partial, that of the second is universal. It would be a great piece of imprudence to make use of the former and to neglect the latter. There are cases in which oaths have a very great power ; those, namely, in which they act in concert with public opinion, or have the support of the popular sanction. There are other cases in which their power is very small ; those, namely, in which they are in opposition to public opinion, or are merely unsupported by it. Such are custom-house oaths, and those exacted from the pupils at certaia universities. It is the interest of a legislator, not less than of a military chief, to know the true state of the forces under his command. To avoid seeing the weak part, because the sight of that weak PEUfCrPIES OP THE PENAL CODE. 441 part gives little satisfaction, is pusiUanimity. If tte feebleness of oaths, so far as the religious obligation is concerned, has been Mly made known, it is the fault of those who place the greatest reliance on this means. The abuse they have made of it, the prodigality with which they have employed it, has betrayed the little efficacy which it has iu itself, distinct from the sanction of honour. The power of oaths is necessarily enfeebled, when they are made to bear upon belief, upon opinions. Why ? Because, in such cases, it is impossible to detect perjury, and because hiunan reason, always afloat, always subject to variations, cannot bind itself for the future. Can I be certain that my belief to-day will be my belief ten years hence ? These oaths are an advantage given to unscrupulous men over those who have a greater sensi- bility of conscience. Oaths become degraded when they are used for puerile pur- poses ; when they are employed for pnrposes as to which there is a general understanding to violate them ; and stUl more when they are required La cases iu which justice and humanity excuse, and perhaps applaud, their violation. The human mind, almost always opposed to tyranny, perceives confiisedly that the Deity, on account of his very perfections, cannot ratify unjust or frivolous laws. Man, iu fact, by impos- ing an oath, wishes to exercise an authority over God himself; man decrees a punishment, and the Supreme Judge is caUed upon to execute it. Deny this supposition, and there is an end to the religious force of an oath. It is very astonishing that in England, among a people other- wise prudent and religious, this powerful means has been almost ruined by the trivial and indecent use that has been made of it. To show how far habit may deprave moral opinions upon some points, I shall cite a passage extracted from Lord Kaims, a judge of the Court of Session in Scotland, in a work upon education : — " Custom-house oaths, at present, go for nothing ; not because men are growing more immoral, but because no one attaches any importance to them. The duty upon French wines is the same 443 PBINCIPIES OP THE PENAL CODE. in Scotland as in England ; but, as we axe not rich enongli to pay- it, a tacit permission to pay upon French wines the same duty as upon Spanish wines, is found more advantageous to the revenue than the rigour of the law. However, before the duty is paid, an oath must be taken that the French wines are Spanish wines. Such oaths in their origin were criminal, because they were a fraud upon the public; but at present the oath is only a matter of form, and does not imply any credit given or received ; it is a mere manner of speaking, like the compliments of common civility, ^our humble servant, &c. And, in fact, we see merchants who gain a livelihood by these oaths, and who are trusted without scruple in the most important affairs." "What shall we think when a moralist, and a judge holds lan- guage like this ? The Quakers have raised a simple affirmation to the dignity of an oath ; a magistrate degrades an oath into a mere formality ; the oath implies no credit, given or received. Then why take it ? Why exact it ? For what does this farce serve ? Is religion then the meanest of objects ? If it is, why pay so dear for it ? What an absurdity to maintain a clergy at so great an expense, to preach the sacredness of oaths, and to have judges and legislators who turn them into ridicule ! CHAPTEE XIX. Wse to he made of the Power of Instruction. Insiettciion does not form a separate subject ; but this title wiU enable us to bring under one head a number of detached obser- vations. Government ought not to do everything by force ; it is only the body which submits to that ; nothing but wisdom can extend its empire over the mind. When a government orders, it but gives its subjects an artificial interest to obey ; when it enlightens, it gives them an (interior motive, J the influence of which they cannot evade. The4)nsl/ met hod of instnictirm is t j^ e simple p ub- licatioii of Ja g ts. but sometimes it is advisab l e to aid thn pmiE S^ PEIIfCIPLJIS OT THE PENAl CODE. 443 "WTien measures of goYemment, excellent in themselves, are seen to fail ttrougli the opposition of an ignorant people, we feel an immediate irritation against the stupidity of the multitude, and a disincKnation to trouble ourselves further with the promo- tion of the public good. But when we come to reflect, when we observe that this opposition was easy to be foreseen, and that government, with the habitual pride of authority, had taken no precautions to prepare the minds of the people, to dissipate pre- judices, to conciliate confidence, our indignation ought to be transferred from a people ignorant and deceived, to its disdainful and despotic rulers. Experience has proved, contrary to the general anticipation, that newspapers are one of the best means of directing opinion, of quieting its feverish movements, and of dissipating those false- hoods and concocted rumours by which the enemies of govern- ment aim to accomplish their evil designs. By means of these papers, instruction descends from the government to the people, and remounts from the people to the government ; ^ft gmore libertythe -pm-n Pi\inTri thn oar.wr it ir. tn ascertain the curra iit..ef- opinion, so as to aet_ To lorm an" adequate idea of their utility, it is necessary to go back to the times when newspapers did not exist, and to consider the scenes of imposture, political and religious, which were played off with success, in countries where the people could not read. The last of these personators of royalty was Pugatcheff, "Would it have been possible in our times to play such a part in France or in England ? Would not the imposture be unmasked as soon as it was announced ? There are offences which are not even attempted among enlightened nations ; the ease of detecting im- postures prevents their existence. There are many other snares from which the government can protect the people, by public instructions. How many frauds are practised in commerce, in the arts, in the price or quality of goods, which it would be easy to put an end to by exposing them ! How many dangerous remedies, or rather true poisons, are impudently sold by empirics, as marvellous secrets, as to which 444 PEINCIPLES OF THE PENAL CODE. it -would be easy to disabuse the most credulous, by mating known their composition ! How many mischievous opinions, errors fatal or absurd, which might be extinguished at their birth, by ehlighteniiig public opinion! When the foUy of animal magnetism, having seduced the idle coteries of Paris, be- gan to spread throughout Europe, a report of the Academy of Sciences, by the mere force of truth, marked Mesmer as a char- latan, and left him no disciples except a few incurable fools, whose admiration completed his disgrace. If you wish to cure an ignorant and superstitious people, send as missionaries into the cities and the country, jugglers and wonder-workers, and let them begin with astonishing the people, by producing the most singular phenomena, and end by enlightening them. Those who are best acquainted with natural magic, are least likely to be duped by magicians. I could wish that the miracle of St. Januarius were repeated at Naples in all the public places, and were even made a plaything for children. The principal sort of instruction which governments owe to the people, is knowledge of the laws. How can we require laws to be obeyed, when they are not even known ? How can they be known, unless they are published imder the simplest forms, so that each individual may read for himself, the enactments which are to regulate his conduct ? The legislator may exercise an influence over public opinion, by causing to be compiled a body of political morals, analogous to the body of laws, and divided in the same manner into a general and particular codes. The most delicate questions rela- tive to each profession might be explained. It would not be necessary to confine the work to mere didactic lessons ; by inter- mingling a judicious selection of historical anecdotes, it might be made a book of amusement for persons of aU ages. To compose such moral codes, would be dictating, as it were, the judgments of public opinion upon these different questions of politics and morals. In the same spirit, there might be added to these moral codes a list of popular prejudices, to which should be subjoined the considerations which prove their fallacy. PHnfTCIPLES or THE PENAL CODE. 445 If sovereign power has ever appeared before men with dignity, it was in the Instructions, published by Catherine II., for a code of laws. Let ns consider for a moment this unique example, distinct from the remembrance of an ambitious reign. It is impossible to see without admiration a woman descending from the car of victory to civilize so many semi-barbarous tribes, and to offer them the finest maxims of philosophy, sanctioned by the approval of an empress. Superior to the vanity of composing this work herself, she borrowed the best that could be foimd in the writings of the wise men of the age ; but by adding the weight of her authority, she lent to those writers more than she bor- rowed. She seemed to say to her subjects, " You owe me the more confidence, since I have taken into my council the ablest men of the times ; and I do not fear to caU upon those masters of truth and virtue to hold me up to shame before the face of the world, if I dare to act unworthily." In the same spirit she divided among her courtiers the labours of legislation ; and if she was often in contradiction with herself, like Tiberius, who was weary of the servitude of the senate, and yet would have punished an effort at liberty, still these solemn engagements, contracted in the face of the whole world, were like limits voluntarily put to her power, which she seldom dared to tran- scend. CHAPTER XX. Use to he made of the Power of Education. EBTJCATioif may be considered as the government of a domestic magistrate. The analogies between a family and a state are of a nature to strike at the first glance; but the differences are not less obvious, and are equally deserving of attention. 1st. Domestic government needs to be more active, more vigilant, more occupied with details, than civil government. Without an attention always vigilant families could not subsist. 446 PBINCrPLES OF THE PElfAX CODE. Civil authority cannot do better than to trust the management of personal interests to the prudence of individuals who always understand them better than the magistrate ; but the head of a family must be constantly aiding the inexperience of those sub- mitted to his care. Here it is that the censorship can be exercised, — a policy which we have condemned in civil government. The domestic governor may protect those subject to his authority from knowledge which may do them harm ; he can watch over their social intercourse and their studies ; he can accelerate or retard the progress of their enlightenment, according to circumstances. 2nd. This continual exercise of power, which would be liable to so many abuses in a state, is much less so in a family ; for the father and mother have a natural affection for their children, far stronger than that of the civil magistrate for those whom he governs. On their part, indulgence is generally the prompting of nature, whUe severity is the effect of reflection. 3rd. Domestic government can employ punishments in many cases where the civU authority cannot ; for the head of a family deals vpith individuals, while the legislator can only act upon classes. The one proceeds upon certainties, the other upon pre- sumptions. A certain astronomer may be capable, perhaps, of resolving the problem of longitude, but can the civil magistrate know it ? Can he command this discovery, and punish him for not makiag it ? But a particular instructor will be likely to know whether a given problem of elementary geometry is level to the capacity of his pupil. Though idleness assume the mask of incapacity, the instructor wiU. hardly be deceived ; in such cases the magistrate is sure to be deceived. It is the same with most of the vices. The public magistrate cannot repress them, because if he attempted it he must have spies in every family. The private magistrate, having under his eye and his immediate control those with whose conduct he is charged, can arrest the beginning of those vices, of which the laws can punish only the last excesses. 4th. It is especially as regards the power of rewarding, that PEINCIPXES OF TEE PBNAIi CODE, 447 these two governments differ. All the amusements, all the wants of the young, may he made to assume a remuneratory character hy granting them on certain conditions, after certain performances. In the Isle of Minorca, the dinners of the hoys depended upon their skill in shooting the how ; and the honour of eating at the puhUc tahle was the price allotted at Lacedemon to the warlike virtues of the young. 'So civil government is rich enough to do much hy rewards; no father is so poor as not to possess an inex- haustihle fund of them. The legislator ought nevertheless to pay particular attention to youth, that season of lively and durahle impressions, in order to direct the course of the inclinations towards those tastes most conformahlfe to the public interest. In Kussia, means as powerful, as they are weU devised, have been employed to engage the young nobility to enter into the army. The good effects that have resulted in consequence, to the military service, are even less than those which have been felt in a civil point of view. The young nobles are accustomed to order, to vigUance, to subordination. They are obliged to quit their estates, where they exercise a corrupting dominion over slaves, and to show themselves on a greater theatre, where they have equals and superiors. The necessity of mingling with others produces the desire of pleasing; the mixture of men. of different races diminishes reciprocal prejudice, and the pride of birth is compelled to bend before the gradations of the service. An unlimited domestic despotism such as that of Eussia was, cannot but be improved by being changed into a military govern- ment, which has its limits. In the actual circumstances of that empire, it would have been diflcult to find a general means of education which woxild have answered more useful purposes. But when education is considered as an indirect means of pre- venting offences, an essential reform is evidently needed. The class most neglected ought to become the principal object of its cares. The less the parents are capable of discharging their duty in this respect, the more necessary it is that the government should make up for their deficiencies. Not only should attention 448 PEINCIPLBS OP THE FESAL CODB. be given to orphans left in indigence, but also to children whose parents are not of a character to be trusted ; to those who have already committed some offence; and to those who, being destitute of protectors and resources, are a prey to aU the seduc- tions of want. These classes, 'so absolutely neglected in the greater number of states, become, in consequence, the pupils of crime. A man of rare beneficence, the Chevalier Paulet, created at Paris an institution for more than two hundred children whom he took from among the very poorest class. His plan rested upon four principles : To offer the pupils many objects of study and of labour, and to leave them the greatest possible latitude of taste ; to employ them in mutual instruction, by offering to the scholar, as the highest reward of proficiency, the honour of becoming in his turn a master ; to employ them in all the domestic services of the establishment, for the double purpose of instruction and economy ; to govern them by means of themselves, by putting each pupil under the inspection of an older one, in a way to render them securities for each other. In this establishment, everything breathed an appearance of freedom and gaiety ; there was no punishment except compulsive idleness, and a change of dress.* The more advanced pupUs were as much interested in the general success as the founder himself; and the whole was going on prosperously, when the revolution, amid the general overthrow, swallowed up also this little colony. A greater extent might be given to institutions of this kind, and their expensiveness might be diminished, either by teaching a great number of trades, or by retaining the pupils tUl the age of eighteen or twenty, so that their labour might contribute to discharge the expense of their education, and to aid in that of the younger pupUs. Schools upon this plan, instead of being an expense to the state, might become lucrative enterprises. But * The oominoii puBishments were called, one the Utile idleness, and the other the great idleness. What could be more ingenious than to give to punishmenta the very name and character of a vice ? It ia obvious what a salutary aasooiation of ideaa this was calculated to produce. PEISrcIPIES OF THE PENiL CODE. 449 the pupils ttemselves should be interested in tte lalbour, by allowing them a fair rate of wages, to be paid them at leaving the school. CHAPTEE XXI. General Precautions against Abuses of Authority. " Let us consider some of the means which a government may- employ to prevent abuses of authority on the part of those to whom it intrusts portions of its power. Constitutional law has its direct and its indirect legislation. Its direct legislation consists in the establishment of certain magistracies, among which aU the political power is divided. That subject is not included in this treatise. I^s indirect legis- lation consists in general precautions, of which the object is to prevent misconduct, incapacity, or malversations among those who hold principal or subordinate stations in the administration. A complete enumeration of these indirect means will not be . attempted. It will be enough to direct attention towards this object, and thus to restrain the enthusiasm of certain political writers, who, from having got sight of one or two of these means, have flattered themselves that they have perfected a science, of which, in fact, they have hardly drawn the outlines. I. The Division of Power into different Branches. — Every divi- sion of power is a refinement suggested by experience. The most natural plan, the first that presents itself, is to place the whole administration in the hands of a single person. Command upon one side and obedience upon the other is a kind of contract of which the terms are easily arranged, when he who is to govern has no associate. Among all the nations of the East, the fabric of government has continued to preserve its primitive, structure. The monarchic power descends without division, stage by stage, from the highest to the lowest, from the great Mogul to the simple Havildar. "When the King of Siam heard the Dutch Ambassador speat 450 PEINCrPIES OP THE PENAL CODE. • of an aristocratic govermnent, he burst into laughter at the idea of such an absurdity. It is enough merely to mention this principal means. To exa- mine into how many branches the government ought to be divided, and which of all the possible divisions is the one that merits the preference, would be to compose a treatise upon con- stitutional law. I shall only remark that this division ought not to result in separate and independent powers ; for that would bring on a state of anarchy. Some supreme authority, superior to all, must always be acknowledged, which does not receive law, but which gives it, and which has power over the very rules that regijlate its own mode of action. II. The Distribution of pa/rticular Branches of Power among several Co-participators. — In the provinces of Russia, previous to the regulations of Catherine II., all the different branches of power — military, fiscal, and judicial — were intrusted to a single body, a siagle council. So far, the constitution of these subordi- nate governments sufficiently resembled the form of Oriental des- potism ; but the power of the governor was somewhat limited by the powers of the council, and in this respect the form approached to that of an aristocracy. At present, the judicial power is separated into many branches, and each branch is divided among many judges, who exercise their fanctions conjointly. A law has been established of the nature of the English Habeas Corpus, for the protection of individuals against arbitrary imprisonment, and a governor has no more power of doing harm than a governor of Barbadoes or Jamaica. The advantages of this division are principally these : — 1st. It diminishes the danger to be apprehended from precipi- tation. 3nd. It diminishes the danger to be apprehended from ignorance. 3rd. It diminishes the danger to be apprehended from want of probity. This last advantage, however, can hardly be attained, except where the number of co-participators is very great, — so great that it will be difficult to separate the interests of the majority of them from the interests of the people at large. PKISrClPLES OF THE PENAL CODE. 451 The division of powers has also disadvantages, since it intro- duces delays and foments disputes whioli may produce the disso- lution of the estahlished government. The evil of delays may be obviated by graduatihg the division, according as the functions to which it is applied admit of more or less deliberation. In this point of view, the legislative power and the military power form the two extremes ; the first admitting the greatest deliberation, the second demanding the greatest celerity. As to the dissolu- tion of the government, that is an evil only upon one or the other of two suppositions : — 1st, That the new government is worse than the old one ; or 2nd, That the transition from one to the other is marked by calamities and civU wars. The greatest danger arising from plurality, whether in a tri- bunal or an administrative council, is the diminution of responsi- bility. A numerous body can count upon a sort of deference on the part of the public, and allows itself to commit wrongs which an individual administrator would not dare to perpetrate. Where so many share in the act, the odium of it is shifted from one to another, and rests nowhere. AH did it ; no one avows it. It' the censure of the public is excited, the more numerous the cen- sured body is, the more it fortifies itself against external opinion, the more it tends to form a state within a state, a little com- munity which has its ovm particular spirit, and which protects by its applauses those of its members who encounter the reproaches of the public. Jl«.if3f Jn all cases in which it is possible — that is, in aU cases wiiich do not demand a concentration of knowledge and a concur- rence of wills, as in a legislative body— nmty ia -idTn iu fngrnnfr ^icaus e itputs _t>'p whole resp oB n ibili W , wh^thpr IptoI Or TDOral. ■ rf his actions ^ HthTnybody, and he bears the whole burden of &e blame ; he sees himself alone against all, having no other support but the integrity of his conduct, no other defence but the general esteem. Though he were not honest by inclination, he would become so, as it were, in spite of himself, by means of a poation in which his interest is inseparable from his duty. Besides unity in subordinate employments is a certain means ' G G 2 4o2 rEINCIPIES 01' THE PENAL CODE. of discovering in a short time the real capacity of individuals. A narrow and unsound judgment may conceal itself a long while, amid a numerous company ; but if it acts alone, and upon a public theatre, its insufficiency is soon unmasked. Men of moderate or smaU talents, always ready to solicit places where they can take refuge under the wing of some able assistant, would be afraid to expose themselves to a dangerous career, in which they would soon betray their want of ability. But there are some cases in which it is possible to unite the advantages of a collective body with the responsibility of a single person. In subordinate councils, there is always an individual who pre- sides, and upon whom the principal confidence rests. Let him have associates, in order that he may profit by their advice, and that there may be witnesses against him, in case he abuses his trust. But these purposes do not require that his associates should be equal to him in authority, nor even that they should have the right of voting. It is only necessary that the chief should be obliged to communicate to them all that he intends to do, and that each councillor should make a declaration in writing touching each administrative act, expressing an approval of it or a disapproval. This communication ought generally to take place before the issue of orders for carrying his designs into exe- cution; but in those oases which require an extraordinary despatch, it would be enough were it made immediately after. "Would not such an arrangement obviate, in general, the danger of dissensions and delays ? III. Putting the Power of Removal into different hands from the Power of Appointment. — This idea is borrowed from an ingenious pamphlet published in America, in 1778,* by a member of the convention appointed to examine the form of government pro- posed for the state of Massachusetts. Our pride is interested in not condemning a man of our own choice. Independently of afiection, a superior will be less dis- posed to hear complaints against an ofScer of his own appoint- ment, than against an indiffereijt person, and wiU have a pre- * Eeprinted in Almon's Bemenibrcmeer, No. 84, p. 223. rEnsrciPLES op the penal code. 453 judie~e of self-love in his favour. This consideration will help to explain those abuses of power, so common in monarchies, where a subaltern is intrusted with great authority, of which he is not obliged to render any account, except to the very person who gave him his office. In popular elections, the part which each individual has in the nomination of a magistrate, is so very trifling, that this kind of illusion does not exist. In England, the choice of ministers belongs to the king ; but the parliament has the actual right of dismission, whenever a majority votes against them. However, this is only an indirect application of the principle. IV. Not permitting Governors to remain a long time in the same Districts. — This principle has aparticular application to important commands in distant provinces, and especially those detached from the body of the empire. A governor armed with great power, if he is allowed time for it, may attempt to establish his independence. The longer he remains in office, the more can he strengthen himself by creating a party of his own, or by uniting himself to one of the parties which existed before him. Thence originates oppression towards some, and partiality towards others. And though he has no party, he may be guilty of a thousand abuses of authority, without any one daring to complain to the sovereign. The duration of his power gives birth to fears or hopes, both of which equally favour him. He makes himself creatures, who look up to him as the sole dis- tributor of favours ; while those who suffer, fear to suffer more if they offend a ruler who is likely to retain his power for a long time. The disadvantage of rapid changes consists in removing a man from his employment so soon as he has acquired the knowledge and experience of affairs, New men are liable to commit faults of ignorance. This inconvenience would be palliated by the esta- blishment of a subordinate and permanent council, which should keep up the course and routine of affairs. What you gain is the diminution of a power, which may be turned against yourself; what you risk is a diminution in the skill with which the office is 454 PEINCIPLES OE THE PENAI CODE. executed. There is nb parity between these dangers, when revolt is the evil apprehended. To avoid giving umbrage to individuals, this arrangement ought to be permanent. The change, at regular periods, should be regarded as fixed and necessary. If it were limited to particular cases, it might serve to provoke the evil which it is intended to prevent. The danger of revolt on the part of provincial governors is unknown except in feeble and badly constituted governments. In the Eoman empire, from Csesar down to Augustulus, we see a constant succession of rebellious governors and generals. This was not owing to any neglect of the precaution here proposed, for new appointments were frequent ; but because the application of it was not judicious, or because there was a want of vigUance and firmness, or to some other cause of a similar kind. The want of a permanent arrangement of this sort, is plainly the cause of the continual revolutions to which the Turkish empire is subject ; and nothing more evidently shows the stu- pidity of that barbarous court. If there is any European government which ought to adopt this policy, it is Spain in her American, and England in her East Indian establishments. In the more civilized states of Christendom, nothing is more uncommon than the revolt of a governor. That of Prince Gagarin, Governor of Siberia, under Peter I., is, I believe, the only example that can be cited in the two last centuries, and that happened in an empire which had not yet lost its Asiatic cha- racter. The revolutions which have broken out in Europe have originated from a more powerful and a more respectable prLaciple, opinions, public feeling, the love of liberty.* V. Renewal of the Governing Bodies ly Rotation. — The reasons for not allowing a provincial governor to remain a long time in office, all apply with stiU. more force to a council or a directory. Make them permanent, and if they agree among themselves with * This principle haa been judiciously adopted as respects the sit- pendiary magistrates in the British West Indies. They remain in one district only for a limited time. — Translator. P'ROTCIPLES OP THE PENAX CODE. 455 respect to the generality of their measures, it is probahle that among those measures there will be many of which the object is to promote their own interest or that of their friends, at the expense of the coiomunity. If they disagree, and are afterwards reconciled, it is probable that the public wiU pay the cost of their reconciliation. On the other hand, if a certain number are dismissed at regular periods, if there are abuses, you have a chance to see them reformed by the new comers, before they have been long' enough in office to be corrupted by their associates. A part should always be left, so that the course of affairs may go on without interruption. Ought the part reserved to be larger or smaller than the part renewed ? If it is larger, th,ere is reason to fear that the old system of corruption may be still kept up in fall vigour ; if it is smaller, there is reason to fear that a good system of administration may be embarrassed by ca- pricious innovations. However this may be, it is plain that the mere right of renewal will hardly ever answer its purpose, espe- cially if the power of filling vacancies belongs to the body itself. This right would never be exercised, except upon extraordinary occasions. Ought those whose places are vacated to be ineligible for a time or for ever? If it is only for a. time, it wiU. presently happen that at the end of that time they will always be re- elected, and the council wiU. become a close body. If they are never re- eligible, the community will be deprived of the talents and experience of its ablest servants. All things considered, this means seems to be only an imperfect substitute for others which will be presently mentioned, and especially for publicity in all proceedings and accounts. The arrangement of rotation was long ago adopted in England by the great companies of commerce, and some years since it was introduced into the direction of the East India Company. This political view is not the only one which rotation in office has been intended to answer. It has been often introduced for , the mere object of producing a more equal distribution of the privileges which appertain to office. Harrington's celebrated treatise on politics, entitled Oceana, 456 PEDTCrPLES OE THE PENAI, CODE. depends almost entirely upon a system of rotation among the members of the government. Harrington was a man of talent, but one who did not grasp the whole science of government. Having seized a single idea he developed it, applied it to every- thing, and saw nothing beyond it. So it is in medicine: the less the extent of the art is perceived the more one is inclined to believe in an elixir of life, a tmiversal remedy, a marvellous secret. Classification is useful in order to extend the attention successively to every means. VI. The Reception of Secret Informations. — ^Everybody knows that at Venice secret informations were admitted. There were boxes placed here and there around the palace of St. Mark, the contents of which were regularly examined by the state inqui- sitors. It is pretended that in consequence of these anonymous accusations persons were seized, imprisoned, sent into exile, or even punished with death without any further proof. If this be true, then there was nothing more salutary or more reasonable than the first part of the institution, nothing more pernicious and abominable than the second. The arbitrary tribunal of the inquisitors has cast a merited disgrace upon the Venetian govern- ment, which must have been wise in other respects, since it maintained itself for so long a time in a state of tranquillity and prosperity. It is a great misfortune that a good institution should have been connected with a bad one ; for all minds have not the prismatic power of disuniting good from evil. Where. would be the harm of receiving secret informations, even though they were anonymous in the first insta,nce ? Certainly one hair of a single head ought not to be touched upon the mere ground of a secret information, nor should the slightest inquietude be given to a single individual ; but, with this restriction, why forego tht advantage of such informations ? The magistrate can judge whether the object denounced merits his attention. If it does not merit it he need do nothing in the matter. But, if it seems to be of importance, let him give notice to the informer to pre- sent himself in person. After examining the facts, if the in- former is found to be mistaken, he can be dismissed with praise PEINCIPLBS OP IHE PENAL COBE. 457 for his good intentions, and his name may be kept secret. If the informer lias brought a charge wilfully and maliciously false, his name and his accusation ought to be communicated to the party accused. If the denunciation is well founded, let a judicial pro- secution be commenced, and let the informer be obliged to appear and give his evidence in public. If it be asked upon what principle such an institution can be useful, the answer is, precisely on the principle of the vote by ballot. In the course of the prosecution the defendant ought certainly to be informed what witnesses wiU. testify against him ; but where is the necessity of his knowing it before the prosecution is begun ? In that case a witness who may have something to fear on the part of the defendant, would not be willing to expose himself to a certain inconvenience for the chance of rendering a doubtful service to the public. Hence it is that offences so frequently remain unpunished, because no one is willing to make personal enemies without any certainty of serving the public. I have enumerated this means under the head of abuses of authority, because it is against men in place that its efficacy is most marked; since, in that case, the supposed power of the delin- quent is an additional weight in the balance of dissuasive motives. The resolution to receive secret and even anonymous informa- tions would be good for nothing, unless it were publicly known; but once known, the fear of these informations would soon render the occasions of them more rare, and would diminish their number. And upon whom would the fear fall ? Only upon the guilty, and upon those who were plotting to become so ; for with publicity of procedure, innocence could never be in danger ; and the malice of false accusers would be con- founded and punished. VII. The Right of Petitioning the Supreme Authority/.— Though informations reached only the minister, they would have their use ; but to insure their utUity, it is essential that they should come to the knowledge of the sovereign. The great Frederic received letters, like a private individual, from the meanest of his subjects, and the answer was often written with his own hand. This fact would be incredible were 458 PEINCIPLES OP THE PENAL CODE. it not perfectly well attested. But we are not to conclude from tills example tiat the same thing is possible in all governments. In England, every one has a right to present a petition to the king ; but the fate of these petitions, handed the same moment to a gentlemen in waiting, has become proverbial ; they serve the maids of honour for hair-papers. It may well be imagined, after this, that these petitions are not very frequent ; but neither are they very necessary in a country where the subject is protected by laws which do not depend upon the sovereign. There are other means for a private man to obtain justice ; there are other channels of information for the prince. It is in absolute monar- chies that it is essential to maintain a communication, constantly open, between the subjects and the monarch; it is necessary that the subject may be sure of protection ; it is necessary to assure the monarch against being duped by his ministers. The people may be called canaille, populace, or what you will ; but the prince who refuses to hear the lowest individual of that populace, so far from augmenting his power by doing so, in fact diminishes it. From that moment he loses the capacity of self- direction, and becomes an instrument in the hands of those who caU themselves his servants. He may imagine that he does as he pleases, that he determines for himself ; but in fact, it is they who determine for him ; for to determine all the causes of a man's actions, is to determine all his actions. He who does not see and does not understand, except as it pleases those who sur- round him, is subject to all the impulses which they choose to give. To put an unlimited confidence in his ministers, is to put an unlimited confidence in those who have the greatest interest to abuse it, and the greatest facility for doing so. As to the minister himself, the more honest he is, the less wiU he need such a confidence; and it may be affirmed without paradox, that the more he deserves it, the less he wiU desire to possess it. VIII. Liberty of the Press. — Hear advice from every quarter, and you may be the better for it ; you cannot be the worse. Such is the decision of simple good sense. To establish the freedom of the press, is to admit the advice of everybody. It is PEINCIPIES OF THE PENAI CODE. 459 true that upon most occasions the puhlic judgment is heard, not before the measure is determined upon, but only after it is exe- cuted. Still, this judgment is always useful as regards aU measures of legislation which can be rectified, and all executive acts which are of a nature to be repeated. The best advice given to a minister in a private manner may be thrown away ; but good advice given to the puhlic, if it does not avail at one time, may avail at another ; if it does not avail to-day, it may avail to- morrow ; if it is not presented in a becoming shape, it may re- ceive from another hand ornaments that will make it attractive. Instruction is a seed which requires to be planted in a great variety of soils, and to be cultivated with patience, because its fruits are often a long time in ripening. Freedom of the press is much more powerful than the right of petition in freeing the sovereign from the control of favourites. "Whatever may be his discernment in the choice of his ministers, he can only select from a small number of candidates, whom the chances of birth and fortune present to his choice. It may he reasonably supposed that there are other men more enlightened than these ; and the greater power he attains of knowing such men, the more he increases his power and his liberty of selection. But opinions may be given with insolence and passion ; instead of limitiiig itself to the examination of measures, criticism is ex- tended to persons. And in fact, how much address is necessary to keep these two things distinct ? How can a measure be cen- sured without attacking, to a certain extent, the judgment or the probity of its author ? This is the stumbling-block ; this is the reason why the liberty of the press is as uncommon as its advan- tages are manifest. AU the fears of self-love are against it. Yet Joseph II. and Frederic II. had the magnanimity to establish it. It exists in Sweden ; it exists in England ; it might exist everywhere, with such modifications as would prevent its greatest abuses. If, according to the usages of the government, or owing to particular circumstances, the sovereign cannot admit a free examination of his administrative acts, he ought at least to permit the examination of the laws. Though he claims for 460 prLisrciPLES of the penai code. himself the privilege of infallibility, he need not extend it to his predecessors. If he is so jealous of the supreme power as to extort respect for everything that has been touched by the royal sceptre, he might at least allow a free discussion of merely scientific subjects, such as principles of law, of procedure, and of subaltern administration. Even granting that the liberty of the press may have incon- veniences, as respects pamphlets and handbills which may be scattered among the people, and addressed to the ignorant part of a nation as well as to the enlightened, the same reason cannot apply to serious and lengthy works, to books which can have but a certain class of readers, and which, as they are unable to pro- duce an immediate effect, always afford opportunity for preparing an antidote. Under the old French regime, it was enough that a book of moral science was printed at Paris, to inspire a prejudice against it. The Instructions of the Empress of Eussia to the Assembly of Deputies, respecting the compilation of a code of laws, were prohibited in France. The style and the sentiments of that performance appeared too popular to be tolerated in the French monarchy. It is true that in France, as elsewhere, negligence and incon- sistency palliated the evils of despotism. A foreign title served as a passport to genius. The rigour of the censorship only availed to transfer the trade in books to the bordering states, and to render more bitter the satire it was intended to suppress. IX. Publication of the Reasons and Facts on which the Laws and Administrative Acts are founded. — This is a necessary part of a generous and magnanimous policy, and an indispensable attendant upon the liberty of the press. The freedom of the press is a debt which rulers owe to the people ; to publish the reasons of their laws and acts is a debt they owe to themselves. If the government disdains to inform the nation of its motives upon important occasions, it thereby announces that it chooses to owe everything to force, and that it counts as nothing the opinions of its subjects. The partisan of arbitrary power wiU not agree to this. He is PEINCIPLES OF THE PENAl CODE. 461 Tin-willing to enlighten the people, while lie despises them because tJiey are not enlightened. You are not capable of judging, he says, because you are ignorant ; and we will keep you ignorant, that you may not be capable of judging. This is the endless circle in which he moves. Wiat is the consequence of this vulgar policy? Discontent spreads Uttle by little, till at length it becomes general, founded sometimes upon false and exaggerated imputations, which gain credit because they are not examined and discussed. The minister complains of the injustice of the public, without remembering that he has not afforded to it the means to be just, and that a false interpretation of his conduct is a necessary consequence of the mystery with which it is covered. To be systematic and consistent, there are but two ways of acting •with men, — absolute secrecy, or perfect frankness : the complete exclusion of the people from the knowledge of affairs, or making that knowledge as thorough as possible ; preventing them from forming any judgment, or putting them into a condition to form the most enlightened judgment; to treat them like children, or to treat them like men. Between these two plans, a choice must be made. The first of these plans was followed by the priests in ancient Egypt, by the Brahmins in Hindostan, by the Jesuits in Paraguay. The second is established by practice in England, and by law in the TJnited States of America. The greater part of European governments float incessantly between one and the other, without daring to attach themselves exclusively to either ; and they are constantly in contradiction with themselves, from a desire to have industrious and enlightened subjects, and from a fear of encou- raging a spirit of examination and discussion. In many branches of administration it would be useless, audit might be dangerous, to publish the reasons of measures before- hand. But those cases ought to be distinguished in which it is necessary to enlighten pubUo opinion, to prevent it from being misled. . In matters of legislation, this principle is always appli- cable. It may be laid down as a general rule that a law ought aever to be made without some reason expressed or understood. For what is a good law but a law for which good reasons can be 463 PEINCIPIES OF THE PENAI CODE. given ? Of course, there must have been some reason, godd or bad, for making it, since there is no effect without a cause. But oblige a minister to give his reasons, and he will be ashamed not to have good ones to give ; he will be ashamed to offer you false coin if ob%ed to present a touch-stone along with it, by which it can be tried. This is a means by which a sovereign may continue to reign after death. If there are good reasons for his laws, he gives them a support which cannot fail. His successors wiU be obliged to maintain them through a feeling of self-respect ; and the more good he has done in his lifetime, the more will he contribute to the happiness of posterity. X. To forhid all Arhitrwry Proceedings, — " Clotaire made a law," says Montesquieu, "that no person accused of crime should be condemned without a hearing ; a law which indicates a con- trary practice in some particular case, or among some barbarous people.'' — Spirit of Laws, chap. xii. Montesquieu did not dare to tell the whole. Did he write that passage withoutreeolleeting the Lettres de Cachet, and the admini- stration of the police, such as it existed in his times ? A letire de cachet may be defined, an order to punish without proof for an act forbidden by no law. It was in France and Venice that this abuse was carried to the highest pitch. These two governments, mild in other respects, gained themselves a very bad reputation by this piece of folly. They exposed themselves to imputations which were often un- founded, and to the re-action of alarm : for there are precautions wtieh, by the terror they inspire, produce the very danger they aim to prevent. Behave weU, it is said, and the government wiU not be your enemy. Perhaps so ; but how can I be certain of it ? I am hated by the minister, or by his valet, or by his valet's valet. If I am not to-day, I may be to-morrow, or some- body else may be, and I may be taken for that somebody else. It is not my conduct upon which my safety depends ; it is the opinion of my conduct entertained by men more powerful than I. Under Louis XV., lettres de cachet were an article of trade, sold by ministers and mistresses to gratify private hatreds. If that PEINOIPLES OE THE PENAL CODE. 463 could happen under a government wMch had the reputation of mildness, what fruits of such a lawmight we expect in less civilized countries ? If justice and humanity have not influence enough, the pride of governments, at least, ought to induce them to abolish such remnants of barbarity. Such expedients may be palmed off under the cover of maxims of state ; but lately this pretext has lost its magic. The first thought they suggest is the idea of the incapacity and weakness of those who employ them. If you dared to hear what this pri- soner has to say, you would not shut his mouth ; if you compel him to be silent, it is a proof that you fear him. XI. The Exercise of Power according to certain Rules and, For- malities: — This is another regulation with respect to subordinate officers, not less applicable to absolute monarchies than to mixed governments. If the sovereign thinks it for his interest to be independent of the laws, there is no reason for extending the same independence to aU his agents. The laws which limit subordinate officers in the exercise of their power, may be divided into two classes : to the first class belong those laws which limit the cases in which the exercise of such or such a power is permitted ; to the second, those which determine the formalities according to which its exercise is to be regulated. These cases and these formalities ought to be speci- fically enumerated in the law ; and this being done, the citizens ought to be informed that these are the cases, and the only cases, in which their security, their liberty, their property, or their honour can be brought into danger. Thus, the first law at the very beginning of a code ought to be a general law in behalf of liberty, a law which restrains delegated powers, and limits their exercise to such or such particular occasions, for such or such specific causes. Such was the intention of Magna Charta, and such would have been its effect, but for the unlucky want of precision in some of its ejqpressions, as lea: terra, &c. ; for aU was made to depend upon an iiiaginary law, which restored all to uncertainty, since those in search of that law always referred back to the customs of ancient times, and sought examples and authorities among the very abuses which it was intended to prevent. 464 PEINCTPLES OF THE PENiX CODE. XII. The UstalUshment of the Right of Association, that is, of Assemhlies of the Citizens to express their sentiments and their wishes upon Publio Measures. — Among the rights which a people ought to reserve, when they establish a government, this is the chief, since it is the foundation of all the rest. Tet it is hardly necessary to mention it here, for to the people who possess it, it needs no recommendation, and those who possess it not, have but slight hope of obtaining it, — ^for what can induce their govern- ments ever to grant it ? At the first view, this right of association seems incompatible with government ; and it is admitted that to establish this right as a means of keeping the government under, would be absurd and contradictory. But the intention is very different. If the smallest act of violence is committed by one or more members of the association, punish it as if it had been committed by any other individual. If you perceive that you are not powerful enough to punish it, it is a proof that the association has made a progress it could not have made without a just cause ; so that in fact it is either not an evil, or a necessary evil. It is taken for granted that you have a public force, an authority organized in aU its parts ; if, then, these associations have become strong enough to intimidate you, in the midst of all your regular means of power, if no associations have been formed upon your side, yours, who have so many means at your command to obtain a superiority in that respect, — is it not an infallible sign that the calm and con- siderate judgment of the nation is againstyou? This being granted, what reason can be given for keeping the government in the same state, — for not satisfying the public wisb ? I know of none. Doubtless, a nation, since it is composed of men, does not possess the privilege of infallibility ; a nation may he deceived, as well as its rulers, as to its true interests ; nothing is more certaia ; but if a great majority of the nation is seen upon one side, and its government upon the other, may it not be presumed, in the first instance, that the general discontent is well founded ? Far from being a cause of insurrection, I look upon these asso- ciations as one of the most powerful means of preventing that evil. Insurrections are the convulsions of weakness, finding strength in PEINCIPIBS OF THE PENAL CODE. 465 a, momentary despair. They are tke efforts of men who are not allowed to express their feelings, or whose projects could not succeed if they were known. Plots which are in opposition to the general sentiment of the people can only succeed by surprise and by violence. Those who plan them cannot hope for success, except by forcible means. But those who believe that the people are on their side, those who flatter themselves that the general opinion will secure their triumph, why should they use violence ? "Why expose themselves to manifest danger without advantage ? I am persuaded that men who had a perfect liberty of association, and who could exercise it under protection of the laws, would never have recourse to insurrection, except in those rare and unfortunate cases in which rebellion has become necessary ; and whether associations be permitted or forbidden, open and general rebellions never will take place until they are necessary. The associations which were openly entered into in Ireland in 1780 did not produce any evil, smd even served to maintain tran- quillity and security, though that country, scarce semi-civOized, was distracted by aU the possible causes of a civil war. I even believe that associations might be permitted, and might become one of the principal means of government, in the most absolute monarchies. This kind of states are more troubled than others by risings and revolts. Everything is done by sudden move- ments. Associations would prevent these disorders. If the sub- jects of the Eoman Empire had been in the habit of combining together, the empire and the Hves of the emperors would not have been constantly put up at auction by the Praetorian Guards. Eor the rest, I know very well that slaves cannot be allowed to assemble. Too much injustice has been done them not to have everything to fear from their ignorance or their resentment. It is not in the American islands, it is not in Mexico, that the people can be armed and allowed to form associations ; but there are states in Europe in which this strong and generous policy might be safely adopted. I admit that there is a degree of ignorance which renders asso- ciations dangerous. This proves that ignorance is a great evil ; it does not prove that associations are not a great good. Besides, the 466 PBINCIPLES OF THE PENAZ COBB. measure itself may operate as an antidote against its own had effects. In proportion as an association extends, the foundation on which it rests is examined, the puhlic is enlightened, and the government may avail itself of all these means to spread the knowledge of facts and to dissipate errors. Liberty and instruction go hand in hand ; liberty facilitates the progress of knowledge, and knowledge restrains the extravagancies of liberty. I do not see why the establishment of this right need give dis- quiet to governments. There is no government which does not fear the people ; which does not think it necessary to consult their wiU, and to accommodate itself to their opinions ; and it wotdd seem that the most despotic are the most timid. What sultan is so tranquil, so secure in the exercise of his power, as a British king ? The janissaries and the populace inspire the same fear in the Seraglio that the Seraglio inspires among the janissaries and the populace. At London, the voice of the people makes itself be heard by lawful assemblages; at Constantinople, it bursts forth in outrage. At London, the people express their feelings in petitions ; and at Constantinople by setting the city on fire. Poland, perhaps, may be brought forward as an objection — a country in which associations seem to have produced so many evils. But that is a mistake. The Polish associations sprung from anarchy, they did not produce it. Besides, in speaking of this means as a restraint upon government, there is supposed to be a government established ; it is offered as a remedy, not as an independent means. It may even be added, that in states where this right exists, circumstances may occur in which it wUl be well, — ^not to suspend it entirely, — but to regulate its exercise. There is no need of an absolute and inflexible rule. "We have seen the British Parliament, during the late war with France, restrain the right of assembling, and forbid meetings for a poKtical object unless that object were pubUcly announced, and unless the meet- ing were held under the authority of a magistrate who had power to dissolve it ; and these restrictions were imposed at the very time that the citizens were called upon to form military corps for the defence of the state, and whilst the government PEINCIELBS OF THE PENAL CODE. 467. announced the most noble confidence in the general spirit of the nation. Though these restraints have ceased, everything remains in the same condition ; and it might be supposed that the restric- tive law stUl existed. The reason is, that a people sure of its rights enjoys them with moderation and tranquillity. If they are ever abused, it is because they are thought to be in danger. The precipitation of the people is the efiect of their fear. CHAPTER XXII. Means of Diminishing the Bad Mffecf of Offences. General Result and Conclusion. The general result of the principles laid down in this treatise upon the subject of penal legislation, offers a happy perspective, and well-founded hopes of diminishing offences and of diminish- ing punishments. At first, this subject presents to the mind only sombre ideas, images of suffering and of terror. But while occupied with this class of evils, painful feelings soon give place to agreeable and consoling sentiments, when it is disco- vered that the human heart is not corrupted by any inherent and incurable perversity; that the multiplicity of offences is principally owing to errors of legislation easy to be reformed ; and that even the evil that results from them is susceptible of being repaired in various ways. , This is the great problem of penal legislation : — 1st, To re- duce all the evil of offences, as far as possible, to that kind which can be cured by a pecuniary compensation. 2nd, To throw the expense of this cure upon the authors of the evU, or, in their default, upon the public. "What can be done in this respect is much more than is generally imagined. The word ewe is employed in order to present the party injured, whether it be an individual or the community, under the character of a patient suffering from a disorder. The com- parison is just, and it points out the procedure best adapted to the end in view, without the intermixture of popular passions, 468 PEisrciPLES of the penal code. and of antipathies, whicli ideas of crime are but too apt to awaken, even in legislators ttemselves. There are three principal sources of crime, — incontinence, hatred, and rapacity. The offences 'which spring from incontinence are hardly of a nature to be cured by a pecuniary compensation. This remedy may apply to certain cases of seduction, and even of conjugal infidelity,- but it does not cure that part of the evil which consists in dishonour and the disturbance of family peace. The evil effects of other offences are more surely arrested in proportion as the offences themselves are more clearly proved ; but it is to be observed as a remarkable and important singu- larity, that offences of incontinence only become hurtful in pro- portion as they become known. A good citizen should look upon it as his duty to make known an act of fraud ; but he ought to be very much on his guard how he publishes to the world the secret faults of love. To conceal a fraud is to become a party to it; to betray to the public an unknown weakness is to do an evil without compensation ; a wound is inflicted upon the sensibility of those who are exposed to shame, but the thing done is not repaired. I count among the establishments which do honour to the humanity of the present age, those secret asylums for accouche- ment, those foundling hospitals which have so often prevented the fatal effects of despair, by covering with the shade of mystery the consequences of a momentary error. The rigour which declares against this indulgence is founded Upon the ascetic principle. The offences which spring from hatred are often of such a kind that a pecuniary compensation can hardly be applied to them. Compensation, indeed, if in the case of such offences it can take place at all, is seldom complete ; it cannot undo what is done ; it cannot restore a lost limb ; it cannot give back a son to his father, a father to his family ; but it may act upon the condi- tion of the party injured ; it may furnish him a portion of good in consideration of a portion of evil; and, in regulating the account of his prosperity, it puts an item on the favourable side to balance an item on the other. With respect to these offences, it is an essential observation UEINCIPLES OP THE PENAI COBE. 469 that they diminish from day to day, by the progress of civiliza- tion. It is an admirable thing to observe, in the greater part of European states, how few crimes are produced by the irascible passions, so natural to man, and so violent in the infancy of society. "What an object of emulation for those tardy govern- ments which have not yet reached this degree of poUce, and among whom the sword of justice has not yet been able to banish the stilettoes of revenge ! Rapacity is an inexhaustible source of offences. This is the enemy, always active, always ready to seize every advantage, against which a continual war must be carried on ; and this war demands a peculiar kind of tactics, the principles of which have not been well understood. Be indulgent to this passion so long as it confines itself to the use of peaceable means ; but be careful to deprive it of all its unlawfiil gains. Grow severe towards it in proportion as it breaks out in overt acts, and has recourse to menace and to violence. But stiU. reserve means for further severity in case it is guilty of such atrocities as arson and murder. It is in the stUful gradation of these preventive means that the penal art consists. Do not forget that all penal police is but a choice of evUs. Let the wise administrator of punishments always keep the balance in his hand, and in his zeal to prevent trifling evils let him avoid the imprudence of himself producing great ones. Death is almost always a remedy which is unnecessary or inef- ficacious. It is not necessary as to those whom an inferior punish- ment might deter from crime, or whom imprisonment might restrain ; it has no efficacy as to those who throw themselves, so to speak, in its way as a refuge against despair. The policy of a legislator who punishes every offence with death, is like the pusUlanimous terror of a child who crushes the insect he does not dare to look at. But if the circumstances of society, if the frequency of a great offence demand this terrible means, be careful, without aggravating the torments of death, to give it an aspect more dreadful than nature gives it; surround it with mournful accessories, with emblems of crime, and the tragic pomp of ceremony. 470 PKINCIPLBS OF THE PENAI, CODE. •"^ But be slow to believe in this necessity for death. By dis- using it as a punishment you will prevent it as a crime ; for when men are placed between two offences it is desirable to give them a sensible interest not to commit the greater. It is desir- able to convert the assassin into a thief; and to give him a reason for preferring a reparable to an irreparable offence. That which can be repaired is comparatively trifling. Every- thing that can be made up for by a pecuniary indemnity, may soon become as if it had never been ; for if the injured individual always receives an equivsilent compensation, the alarm caused by the offence ceases altogether, or is reduced to its lowest term. It is an object highly desirable that the fund of compensation due for offences should be amassed from among the delinquents themselves, either by being levied upon their property, or ob- tained from the profits of their compulsory labour. If this were so, security would be the inseparable companion of innocence ; and grief and anguish would fall exclusively to the lot of the disturbers of social order. Such is the point of perfection to which we ought to aspire, though we can only expect to reach it slowly and by continuous efforts. It is enough for me to have pointed out the end. The happiness of attaining it will be the reward of persevering and enlightened governments. This means failing, it is necessary to provide compensation either from the public treasury, or by means oi private insv/rances. The imperfections of our laws, in this behalf, are very flagrant. If an offence is committed, those who have suffered from it, either in their persons or their fortune, are abandoned to their fate. But society, which they have contributed to uphold, and which has undertaken to protect them, owes them an indemnity. When an individual, even in his own case, prosecutes a criminal at his own expense, he is not less the defender of the state than he who fights its foreign enemies : the losses which he sustains in defending the pubUc ought to be made up for at the public expense. But when an innocent person has suffered by mistake of the courts, when he has been arrested, detained, subjected to sus- picion, condemned to aU the misery of a trial and a long confine- PHINCrPLES OP THE PENAl CODE. 471 ment, it is not only for Ms sake, but for her own, that Justice should grant him compensation. Established to repair injuries, does she desire an exclusive privilege to injure ? Governments have made no provision for any of these indem- nities. In England, some voluntary associations have been formed to supply this deficiency. If the institution of insurance is good in one case, it is good in aU, with the precautions neces- sary to prevent negligence and fraud.* The inconvenience of exposure to fraud is common to aU funds, public and private. It may diminish the advantage of insurances without destroying it. Fruit-trees are stiU cultivated, though they are liable to perish by a thousand accidents. Monis-de- piete-f have succeeded in many countries. An establishment of this kind, set up in London in the middle of the last century, failed at the beginning, through the dishonesty of the directors, and this theft left a prejudice which has prevented any subse- quent attempt of the sort. According to the same logic, it might be concluded that vessels are bad instruments of war, because the Royal George, whose ports had been left open, sunk at her moorings. Insurances against offences may have two objects :• — 1st, To create a fund to indemnify the parties injured, in case the delin- quent is unknown or insolvent; 2nd, To defray, in the first * Insurance is good, becanse the insurer has volunteered to sustain the loss, considering the premium he receives as equivalent to the danger he runs. But this remedy is imperfect in itself, because the premium, which is a certain loss, must always be paid, to guarantee one's self against a loss which is uncertain. In this point of view, it is desirable that all unforeseen losses, which may fall upon individuals without their fault, were made up at the public expense. The more numerous the con- tributors, the less sensibly do any of them feel the contribution. It is to be observed, on the other hand, that a public fund is more exposed to fraud, to peculation, and to loss, than a private fund. Losses which fall directly upon individuals give aH possible force to motives of vigi- lance and economy. + This was the name given to a kind of banks established in different parts of Europe, for the purpose of lending money to the poor upon pledges, without interest. — Translator. 472 PEINCIPLES OF THE PENAL CODE. instance, the expense of judicial prosecutions in. favour of the poor. This payment might be extended to cases purely civil. But the method of these indemnities would be foreign to the subject of this treatise; its principles have been explained else- where, and I must here confine myself to the announcement of the general result of this work. It is this : That hy good laws almost all offences may ie reduced to acts which can be repaired ly a simple pecuniwry compensation, and thus the evil of offences may he almost wholly done away. At first, this result, simply announced, does not strike the ima- gination ; it must be meditated upon before its importance can be perceived, and its weight be felt. It is not the brilliant society of fashion that can be interested by a formula almost arithmetic in expression. It is offered, statesmen, to you ! It is yours to judge it ! The science of which the basis has been investigated in this work can be plrnrivng OTily to olfiv.itrd nnnls who nrn TrnrmrrI with a passion for the public good. It has no connection with '^^^iim^-fadiikiskaiuLjsBb^ieravfftordnBf-politics which prides itself upon clandestine projects, which acquires a glory composed wholly of human misery, which sees the prosperity of one nation in the abasement of another, and which mistakes convulsions of government for conceptions of genius. "We are here employed upon the greatest interests of humanity; the art of forming the manners and the character of nations ; of raising to its highest point the security of individuals ; and of deriving results equally beneficial from different forms of government. Such is the object of this science ; frank and generous ; asking only for light ; wish- ing nothing exclusive ; and finding no means so sure to perpetuate the benefits it confers as to share them with the whole family of nations.