exhibited: gentlemen masked, with knives in their hands, mounted the scaffold, and drove away the executioner, in order to be the avengers themselves of the honour of the blessed virgin. — I do not here choose to anticipate the reflections of the reader.
The second class consists of those crimes which are prejudicial to morals. Such is the violation of public or private continence; that is, of the police directing the manner in which the pleasure annexed to the conjunction of the sexes is to be enjoyed. The punishment of those crimes ought to be also derived from the nature of the thing. The privation of such advantages as society has attached to the purity of morals, fines, shame, necessity of concealment, public infamy, expulsion from home and society, and, in fine, all such punishments as belong to a corrective jurisdiction, are sufficient to repress the temerity of the two sexes. In effect, these things are less founded on malice than on carelessness and self-neglect.
We speak here of none but crimes which relate merely to morals; for, as to those that are also prejudicial to the public security, such as rapes, they belong to the fourth species.
The crimes of the third class are those which disturb the public tranquility. The punishments ought therefore to be derived from the nature of the thing, and to be relative to this tranquility; such as imprisonment, exile, and other like chastisements, proper for reclaiming turbulent spirits and obliging them to conform to the established order.
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I confine those crimes that injure the public tranquility to things which imply a bare offence against the police; for, as to those which, by disturbing the public peace, attack at the same time the security of the subject, they ought to be ranked in the fourth class.
The punishments inflicted upon the latter crimes are such as are properly distinguished by that name. They are a kind of retaliation, by which the society refules security to a member who has actually or intentionally deprived another of his security. These punishments are derived from the nature of the thing, founded on reason, and drawn from the very source of good and evil. A man deserves death when he has violated the security of the subject so far as to deprive, or attempt to deprive, another man of his life. This punishment of death is the remedy, as it were, of a sick society. When there is a breach of security with regard to property, there may be some reasons for inflicting a capital punishment: but it would be much better, and perhaps more natural, that crimes committed against the security of property should be punished with the loss of
property; and this ought indeed to be the case if mens fortunes were common or equal.
But, as those who have no property of their own are generally the readiest to attack that of others, it has been found necessary, instead of a pecuniary, to substitute a corporal, punishment.
All that I have here advanced is founded in nature, and extremely favourable to the liberty of the subject.
CHAP. V.
Of certain Accusations that require particular Moderation and
Prudence.
IT is an important maxim, that we ought to be very circumspect in the prosecution of witchcraft and heresy. The accusation of these two crimes may be vastly injurious to liberty, and productive of infinite oppression, if the legislator knows not how to set bounds to it. For, as it does not directly point at a person’s actions, but at his character, it grows dangerous in proportion to the ignorance of the people; and then a man is sure to be always in danger, because the most unexceptionable conduct, the purest morals, and the constant practice of every duty in life, are not a sufficient security against the suspicion of his being guilty of the like crimes.
*
Under Manuel Comnenus, the protestator was accused of having conspired against the emperor, and of having employed, for that purpose, some secrets that render men
†
invisible. It is mentioned, in the life of this emperor, that Aaron was detected, as he was poring over a book of Solomon’s, the reading of which was sufficient to conjure up http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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whole legions of devils. Now, by supposing a power in witchcraft to rouse the infernal spirits to arms, people look upon a man whom they call a sorcerer as the person in the world most likely to disturb and subvert society; and, of course, they are disposed to punish him with the utmost severity.
But their indignation increases when witchcraft is supposed to have a power of
*
subverting religion. The history of Constantinople informs us, that, in consequence of a revelation, made to a bishop, of a miracle’s having ceased because of the magic practices of a certain person, both that person and his son were put to death. On how many surprizing things did not this single crime depend! — That revelations should not be uncommon; that the bishop should be favoured with one; that it was real; that there had been a miracle in the case; that this miracle had ceased; that there was an art magic; that magic could subvert religion; that this particular person was a magician; and, in fine, that he had committed that magic act.
The emperor Theodorus Lascaris attributed his illness to witchcraft. Those who were accused of this crime had no other resource left than to handle a red hot iron without being hurt. Thus, among the Greeks, a person ought to have been a sorcerer, to be able to clear himself of the imputation of witchcraft. Such was the excess of their stupidity, that, to the most dubious crime in the world, they joined the most dubious proofs of innocence.
Under the reign of Philip the Long the Jews were expelled from France, being accused of having poisoned the springs with their lepers. So absurd an accusation ought to make us doubt of all those that are founded on public hatred.
I have not here asserted that heresy ought not to be punished; I said only that we ought to be extremely circumspect in punishing it.
CHAP. VI.
Of the Crime against Nature.
GOD forbid that I should have the least inclination to diminish the public horror against a crime which religion, morality, and civil government, equally condemn. It ought to be proscribed were it only for its communicating to one sex the weaknesses of the other, and for leading people, by a scandalous prostitution of their youth, to an ignominious old age. What I shall say concerning it will no ways diminish its infamy, being levelled only against the tyranny that may abuse the very horror we ought to have against the vice.
As a natural circumstance of this crime is secrecy, there are frequent instances of its http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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having been punished by legislators upon the deposition of a child. This was opening a
*
very wide door to calumny. “Justinian (says Procopius ) published a law against this crime: he ordered an inquiry to be made, not only against those who were guilty of it after the enacting of that law, but even before. The deposition of a single witness, sometimes of a child, sometimes of a slave, was sufficient, especially against such as were rich, and against those of the green faction.”
It is very odd that these three crimes, witchcraft, heresy, and that against nature; (of which, the first might easily be proved not to exist; the second, to be susceptible of an infinite number of distinctions, interpretations, and limitations; the third, to be often obscure and uncertain;) it is very odd, I say, that these three crimes should, amongst us, be punished with fire.
I may venture to affirm, that the crime against nature will never make any great progress in society, unless people are prompted to it by some particular custom; as among the Greeks, where the youths of that country performed all their exercises naked; as amongst us, where domestic education is disused; as among the Asiatics, where particular persons have a great number of women whom they despise, while
others can have none at all. Let there be no customs preparatory to this crime; let it, like every other violation of morals, be severely proscribed by the civil magistrate; and nature will soon defend or resume her rights. Nature, that fond, that indulgent, parent, has strewed her pleasures with a bounteous hand; and, while she fills us with delights, she prepares us, by means of our issue, (in whom we see ourselves, as it were,
reproduced,) she prepares us, I say, for future satisfactions of a more exquisite kind than those very delights.
CHAP. VII.
Of the Crime of High-Treason.
IT is determined, by the laws of China, that whosoever shews any disrespect to the emperor is to be punished with death. As they do not mention in what this disrespect consists, every thing may furnish a pretext to take away a man’s life, and to
exterminate any family whatsoever.
Two persons of that country, who were employed to write the court-gazette, having inserted some circumstances relating to a certain fact that were not true, it was pretended that to tell a lie in the courtgazette was a disrespect shewn to the court; in
*
consequence of which they were put to death . A prince of the blood having
inadvertently made some mark on a memorial signed with the red pencil by the
emperor, it was determined that he had behaved disrespectfully to the sovereign; which http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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occasioned one of the most terrible persecutions against that family that ever was
†
recorded in history .
If the crime of high-treason be indeterminate, this alone is sufficient to make the government degenerate into arbitrary power. I shall descant more largely on this
‡
subject when I come to treat of the composition of laws.
CHAP. VIII.
Of the bad Application of the Name of Sacrilege and High-Treason.
IT is likewise a shocking abuse to give the appellation of high-treason to an action that
§
does not deserve it. By an imperial law it was decreed, that those who called in question the prince’s judgement, or doubted of the merit of such as he had chosen for a public office, should be prosecuted as guilty of sacrilege∥. Surely it was the cabinet-council and the prince’s favourites who invented that crime. By another law it was determined that whosoever made any attempt to injure the ministers and officers belonging to the sovereign should be deemed guilty of high-treason, as if he had
¶
*
attempted to injure the sovereign himself . This law is owing to two princes ,
remarkable for their weakness; princes who were led by their ministers, as flocks by shepherds; princes who were slaves in the palace, children in the council, strangers to the army; princes, in fine, who preserved their authority only by giving it away every day. Some of those favourites conspired against their sovereigns. Nay, they did more; they conspired against the empire; they called in barbarous nations; and, when the emperors wanted to stop their progress, the state was so enfeebled, as to be under a necessity of infringing the law, and of exposing itself to the crime of high-treason, in order to punish those favourites.
†
And yet this is the very law which the judge of Monsieur de Cinq-Mars built upon , when, endeavouring to prove that the latter was guilty of the crime of high-treason for attempting to remove cardinal Richelieu from the ministry, he says, “Crimes that aim at the persons of ministers are deemed, by the imperial constitutions, of equal
consequence with those which are levelled against the emperor’s own person. A
minister discharges his duty to his prince and to his country: to attempt, therefore, to
‡
remove him, is endeavouring to deprive the former one of his arms , and the latter of part of its power.” It is impossible for the meanest tools of power to express themselves in more servile language.
§
By another law of Valentinian, Theodosius, and Arcadius , false coiners are declared guilty of high-treason. But is not this confounding the ideas of things? Is not the very horror of high-treason diminished by giving that name to another crime?
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CHAP. IX.
The same Subject continued.
PAULINUS having written to the emperor Alexander, that “he was preparing to
prosecute, for high-treason, a judge who had decided contrary to his edict,” the emperor answered, “that under his reign there was no such thing as indirect high-
*
treason .”
Faustinian wrote to the same emperor, that, as he had sworn by the prince’s life never to pardon his slave, he found himself thereby obliged to perpetuate his wrath, lest he should incur the guilt of læsa majestas; upon which the emperor made answer, “Your
†
fears are groundless , and you are a stranger to my principles.”
‡
It was determined, by a senatus-consultum , that whosoever melted down any of the emperor’s statues, which happened to be rejected, should not be deemed guilty of high-
§
treason. The emperors, Severus and Antoninus, wrote to Pontius , that those who sold unconsecrated statues of the emperor should not be charged with high-treason. The same princes wrote to Julius Cassianus, that, if a person, in flinging a stone, should by chance strike one of the emperor’s statues, he should not be liable to a prosecution for high-treason∥. The Julian law requires this sort of limitations; for, in virtue of this law, the crime of high-treason was charged, not only upon those who melted down the
*
emperor’s statues, but likewise on those who committed any such like action , which made it an arbitrary crime. When a number of crimes of læsa majestas had been established, they were obliged to distinguish the several sorts. Hence Ulpian, the civilian, after saying that the accusation of læsa majestas did not die with the criminal,
†
adds, that this does not relate to all the treasonable acts established by the Julian law, but only to that which implies an attempt against the empire or against the emperor’s life.
CHAP. X.
The same Subject continued.
THERE was a law passed in England, under Henry VIII. by which whoever predicted the king’s death was declared guilty of high-treason. This law was extremely vague: the terror of despotic power is so great, that it recoils upon those who exercise it. In this king’s last illness the physicians would not venture to say he was in danger; and surely
‡
they acted very right .
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CHAP. XI.
Of Thoughts.
§
MARSYAS dreamt that he had cut Dionysius’s throat . Dionysius put him to death, pretending that he would never have dreamt of such a thing by night if he had not thought of it by day. This was a most tyrannical action; for, though it had been the subject of his thoughts, yet he had made no attempt∥ towards it. The laws do not take upon them to punish any other than overt acts.
CHAP. XII.
Of indiscreet Speeches.
NOTHING renders the crime of high-treason more arbitrary than declaring people guilty of it for indiscreet speeches. Speech is so subject to interpretation; there is so great a difference between indiscretion and malice; and frequently so little is there of the latter in the freedom of expression, that the law can hardly subject people to a capital
*
punishment for words, unless it expressly declares what words they are .
Words do not constitute an overt act; they remain only in idea. When considered by themselves, they have generally no determinate signification; for this depends on the tone in which they are uttered. It often happens that, in repeating the same words, they have not the same meaning: this depends on their connection with other things; and sometimes more is signified by silence than by any expression whatever. Since there can be nothing so equivocal and ambiguous as all this, how is it possible to convert it into a crime of high-treason? Wherever this law is established, there is an end, not only of liberty, but even of its very shadow.
†
In the manifesto of the late Czarina against the family of the D’Olgoruckys , one of these princes is condemned to death for having uttered some indecent words
concerning her person; another, for having maliciously interpreted her imperial laws, and for having offended her sacred person by disrespectful expressions.
Not that I pretend to diminish the just indignation of the public against those who presume to stain the glory of their sovereign: what I mean is, that, if despotic princes are willing to moderate their power, a milder chastisement would be more proper, on those occasions, than the charge of high-treason, a thing always terrible even to
‡
innocence itself .
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Overt acts do not happen every day; they are exposed to the eye of the public; and a false charge with regard to matters of fact may be easily detected. Words, carried into action, assume the nature of that action. Thus a man, who goes into a public market-place to incite the subject to revolt, incurs the guilt of high-treason, because the words are joined to the action, and partake of its nature. It is not the words that are punished, but an action in which words are employed. They do not become criminal, but when they are annexed to a criminal action. Every thing is confounded if words are construed into a capital crime, instead of considering them only as a mark of that crime.
The emperors, Theodosius, Arcadius, and Honorius, wrote thus to Rufinus, who was præfectus prætorio: “Though a man should happen to speak amiss of our person, or
§
government, we do not intend to punish him : if he has spoken through levity, we must despise him; if through folly, we must pity him; and, if he wrongs us, we must forgive him. Therefore, leaving things as they are, you are to inform us accordingly, that we may be able to judge of words by persons, and that we may duly consider whether we ought to punish or overlook them.”
CHAP. XIII.
Of Writings.
IN writings there is something more permanent than in words; but, when they are no way preparative to high-treason, they cannot amount to that charge.
And yet Augustus and Tiberius subjected satyrical writers to the same punishment as for having violated the law of majesty; Augustus∥, because of some libels that had been written against persons of the first quality; Tiberius, because of those which he suspected to have been written against himself. Nothing was more fatal to Roman liberty. Cremutius Cordus was accused of having called Cassius, in his annals, the last
¶
of the Romans .
Satyrical writings are hardly known in despotic governments, where dejection of mind on the one hand, and ignorance on the other, afford neither abilities, nor will, to write.
In democracies they are not hindered, for the very same reason which causes them to be prohibited in monarchies: being generally levelled against men of power and
authority, they flatter the malignancy of the people, who are the governing party. In monarchies they are forbidden; but rather as a subject of civil animadversion, than as a capital crime. They may amuse the general malevolence, please the malcontents,
diminish the envy against public employments, give the people patience to suffer, and make them laugh at their sufferings.
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But no government is so averse to satyrical writings as the aristocratical. There the magistrates are petty sovereigns, but not great enough to despise affronts. If, in a monarchy, a satyrical stroke is designed against the prince, he is placed on such an eminence that it does not reach him; but an aristocratical lord is pierced to the very heart. Hence the decemvirs, who formed an aristocracy, punished satyrical writings with
*
death .
CHAP. XIV.
Breach of Modesty in punishing Crimes.
THERE are rules of modesty observed by almost every nation in the world: now, it would be very absurd to infringe these rules in the punishment of crimes, the principal view of which ought always to be the establishment of order.
Was it the intent of those oriental nations who exposed women to elephants trained up for an abominable kind of punishment, was it, I say, their intent to establish one law by the breach of another?
By an ancient custom of the Romans it was not permitted to put girls to death till they were ripe for marriage. Tiberius found out an expedient of having them debauched by
†
the executioner, before they were brought to the place of punishment : that bloody and subtle tyrant destroyed the morals of the people, to preserve their customs.
When the magistrates of Japan caused women to be exposed naked in the market-
‡
places, and obliged them to go upon all four like beasts, modesty was shocked : but, when they wanted to compel a mother --- when they wanted to force a son --- I cannot proceed: even nature herself is struck with horror.
CHAP. XV.
Of the Infranchisement of Slaves, in Order to accuse their Master.
AUGUSTUS made a law, that the slaves of those who conspired against his person
§
should be sold to the public, that they might depose against their master . Nothing ought to be neglected which may contribute to the discovery of a heinous crime: it is natural, therefore, that, in a government where there are slaves, they should be allowed to inform; but they ought not to be admitted as witnesses.
Vindex discovered the conspiracy that had been formed in favour of Tarquin; but he http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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was not admitted a witness against the children of Brutus. It was right to give liberty to a person who had rendered so great a service to his country; but it was not given him with a view of enabling him to render this service.
Hence the emperor Tacitus ordained, that slaves should not be admitted as witnesses against their masters, even in the case of high-treason∥: a law which was not inserted in Justinian’s compilement.
CHAP. XVI.
Of Calumny, with Regard to the Crime of High-Treason.
TO do justice to the Cæsars, they were not the first devisers of the horrid laws which
*
they enacted. It is Sylla that taught them that calumniators ought not to be punished:
†
but the abuse was soon carried to such excess as to reward them .
CHAP. XVII.
Of the Revealing of Conspiracies.
IF thy brother, the son of thy mother, or thy son, or thy daughter, or the wife of thy bosom, or thy friend, which is as thine own soul, entice thee secretly, saying, Let us go
‡
and serve other gods, thou shalt surely kill him, thou shalt stone him . This law of Deuteronomy cannot be a civil law among most of the nations known to us, because it would pave the way for all manner of wickedness.
No less severe is the law of several countries, which commands the subjects, on pain of death, to disclose conspiracies in which they are not even so much as concerned. When such a law is established in a monarchical government, it is very proper it should be under some restrictions.
It ought not to be applied, in its full severity, but to the strongest cases of high-treason.
In those countries it is of the utmost importance not to confound the different degrees of this crime. In Japan, where the laws subvert every idea of human reason, the crime of concealment is applied even to the most ordinary cases.
§
A certain relation makes mention of two young ladies, who were shut up for life in a box thick set with pointed nails; one for having had a love intrigue, and the other for not disclosing it.
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CHAP. XVIII.
How dangerous it is, in Republics, to be too severe in punishing the
Crime of High-Treason.
AS soon as a republic has compassed the destruction of those who wanted to subvert it, there should be an end of terrors, punishments, and even of rewards.
Great punishments, and consequently great changes, cannot take place without
investing some citizens with an exorbitant power. It is therefore more adviseable, in this case, to exceed in lenity, than in severity; to banish but few, rather than many; and to leave them their estates, instead of making a vast number of confiscations.
Under pretence of avenging the republic’s cause,