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It is not true that the sciences have always been injurious to mankind; when they were so, it was an inevitable evil. The multiplication of the human race over the face of the earth introduced war, the ruder arts, and the first laws, mere temporary agreements which perished with the necessity that gave rise to them. This was mankind��s primitive philosophy, the few elements of which were just, because the indolence and slight wisdom of their framers preserved them from error. But with the multiplication of men there went ever a multiplication of their wants. Stronger and more lasting impressions were, therefore, needed, in order to turn them back from repeated lapses to that primitive state of disunion which each return to it rendered worse. Those primitive delusions, therefore, which peopled the earth with false divinities and created an invisible universe that governed our own, conferred a great benefit��I mean a great political benefit��upon humanity. Those men were benefactors of their kind, who dared to deceive them and drag them, docile and ignorant, to worship at the altars. By presenting to them objects that lay beyond the scope of sense and fled from their grasp the nearer they seemed to approach them��never despised, because never well understood��they concentrated their divided passions upon a single object[247] of supreme interest to them. These were the first steps of all the nations that formed themselves out of savage tribes; this was the epoch when larger communities were formed, and such was their necessary and perhaps their only bond. I say nothing of that chosen people of God, for whom the most extraordinary miracles and the most signal favours were a substitute for human policy. But as it is the quality of error to fall into infinite subdivisions, so the sciences that grew out of it made of mankind a blind fanatical multitude, which, shut up within a close labyrinth, collides together in such confusion, that some sensitive and philosophical minds have regretted to this day the ancient savage state. That is the first epoch in which the sciences or rather opinions are injurious.

ONE:What should men think when they see wise magistrates and grave priests of justice with calm indifference causing a criminal to be dragged by their slow procedure to death; or when they see a judge, whilst a miserable wretch in the convulsions of his last agonies is awaiting the fatal blow, pass away[178] coldly and unfeelingly, perhaps even with a secret satisfaction in his authority, to enjoy the comforts and pleasures of life? ��Ah�� they will say, ��these laws are but the pretexts of force, and the studied cruel formalities of justice are but a conventional language, used for the purpose of immolating us with greater safety, like victims destined in sacrifice to the insatiable idol of tyranny. That assassination which they preach to us as so terrible a misdeed we see nevertheless employed by them without either scruple or passion. Let us profit by the example. A violent death seemed to us a terrible thing in the descriptions of it that were made to us, but we see it is a matter of a moment. How much less terrible will it be for a man who, not expecting it, is spared all that there is of painful in it.��

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ONE:CHAPTER XVIII. INFAMY.

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TWO:If pleasure and pain are the motors of sensitive beings, if the invisible lawgiver of humanity has decreed rewards and punishments as one of the motives to impel men to even their noblest endeavours, the inexact distribution of these motives will give rise to that contradiction, as little noticed as it is of common occurrence, namely, that the laws punish crimes which are entirely of their own creation. If an equal penalty is attached to two crimes of unequal injury to society, the greater crime of the two, if it promise a greater advantage than the other, will have no stronger motive in restraint of its perpetration.[197] Whoever, for example, sees the same punishment of death decreed for the man who kills a pheasant and the man who slays his fellow or falsifies an important document, will draw no distinction between such crimes; and thus moral sentiments, the product only of many ages and of much bloodshed, the slowest and most difficult attainment of the human mind, dependent, it has been thought, on the aid of the most sublime motives and on a parade of the gravest formalities, will be destroyed and lost.

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TWO: Not only is it the general interest that crimes should not be committed, but that they should be rare in proportion to the evils they cause to society. The more opposed therefore that crimes are to the public welfare, and the more numerous the incentives to them, the stronger should be the repellent obstacles. This principle accordingly establishes the necessity of a certain proportion between crimes and punishments.

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TWO: One of the greatest preventives of crimes is, not the cruelty of the punishments attached to them, but their infallibility, and consequently that watchfulness on the part of the magistrates and that inexorable severity on the part of the judge which, to be a useful virtue, must coincide with a mild system of laws. The certainty of a punishment, moderate though it be, will ever make a stronger impression than the fear of another, more terrible, perhaps, but associated with the hope of impunity; for even the least evils when certain always terrify men��s minds, and hope, that gift of heaven, which often makes up to us for everything, always throws into the distance the idea of greater evils, especially when its force is increased by impunity, which avarice and weakness so often grant.

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TWO:[98]

THREE: It is better to prevent crimes than to punish them. This is the chief aim of every good system of legislation, which is the art of leading men to the greatest possible happiness or to the least possible misery,[243] according to calculation of all the goods and evils of life. But the means hitherto employed for this end are for the most part false and contrary to the end proposed. It is impossible to reduce the turbulent activity of men to a geometrical harmony without any irregularity or confusion. As the constant and most simple laws of nature do not prevent aberrations in the movements of the planets, so, in the infinite and contradictory attractions of pleasure and pain, disturbances and disorder cannot be prevented by human laws. Yet this is the chimera that narrow-minded men pursue, when they have power in their hands. To prohibit a number of indifferent acts is not to prevent the crimes that may arise from them, but it is to create new ones from them; it is to give capricious definitions of virtue and vice which are proclaimed as eternal and immutable in their nature. To what should we be reduced if everything had to be forbidden us which might tempt us to a crime? It would be necessary to deprive a man of the use of his senses. For one motive that drives men to commit a real crime there are a thousand that drive them to the commission of those indifferent acts which are called crimes by bad laws; and if the likelihood of crimes is proportioned to the number of motives to commit them, an increase of the field of crimes is an increase of the likelihood of their commission. The majority of laws are nothing but[244] privileges, or a tribute paid by all to the convenience of some few.That force, similar to the force of gravitation, which constrains us to seek our own well-being, only admits of counteraction in proportion to the obstacles[198] opposed to it. The effects of this force make up the confused series of human actions; if these clash together and impede one another, punishments, which I would call political obstacles, prevent bad effects from resulting, without destroying the impelling cause, which lies in the sensibility inseparable from humanity; and the legislator, in enacting them, acts the part of a clever architect, whose function it is to counteract the tendency of gravitation to cause a building to fall, and to bring to bear all the lines which contribute to its strength.

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THREE:That the scruple to convict diminishes the certainty of punishment, and therefore raises hopes of impunity, is illustrated by the case of two American brothers who, desirous to perpetrate a murder, waited till their victim had left their State, in which capital punishment had been abolished, and had betaken himself to a State which still retained it, before they ventured to execute their criminal intention. That such reluctance to convict is often most injurious to[42] the public is proved by the case of a woman at Chelmsford who some years ago was acquitted, in spite of strong evidence, on a charge of poisoning, and who, before her guilt was finally proved, lived to poison several other persons who would otherwise have escaped her arts.[27]

If it be said that a second conviction makes it necessary for society to protect itself by stronger measures against a member who thus defies its power, it may be asked whether this is not an application of exactly the same reasoning to the crimes of individuals, which as applied to the crimes of all men generally led our ancestors so far astray in the distribution of their punishments. Nothing could have been more plausible than their reasoning: ��The punishment in vogue does not diminish the crime, therefore increase the punishment.�� But nothing could have[92] been less satisfactory than the result, for with the increase of punishment that of crime went hand in hand. The same reasoning is equally plausible in the case of individuals, with the same perplexing question resulting in the end: ��How comes it that, in spite of the threatened greater punishment, the majority of criminals are yet old offenders?��In proportion as punishments become milder, clemency and pardon become less necessary. Happy the nation in which their exercise should be baneful! Clemency, therefore, that virtue, which has sometimes made up in a sovereign for failings in all the other duties of the throne, ought to be excluded in a perfect system of legislation, where punishments are mild and the method of trial regular and expeditious. This truth will appear a hard one to anybody living in the present chaotic state of the criminal law, where the necessity of pardon and favours accords with the absurdity of the laws and with the severity of sentences of punishment. This right of pardon is indeed the fairest prerogative of the throne, the most desirable attribute of sovereignty; it is, however, the tacit mark of disapproval that the beneficent dispensers of the public happiness exhibit towards a code, which with all its imperfections claims in its favour the prejudice of ages, the voluminous and imposing array of innumerable commentators, the weighty apparatus of unending formalities, and the adhesion of those persons of half-learning who, though less feared than real philosophers, are really more dangerous. But let it be remembered that clemency is the virtue of[191] the maker, not of the executor, of the laws; that it should be conspicuous in the code of laws rather than in particular judgments; that the showing to men, that crimes may be pardoned and that punishment is not their necessary consequence, encourages the hope of impunity, and creates the belief that sentences of condemnation, which might be remitted and are not, are rather violent exhibitions of force than emanations of justice. What shall be said then when the sovereign grants a pardon, that is, public immunity to an individual, and when a private act of unenlightened kindness constitutes a public decree of impunity? Let the laws therefore be inexorable and their administrators in particular cases inexorable, but let the law-maker be mild, merciful, and humane. Let him found his edifice, as a wise architect, on the basis of self-love; let the general interest be the sum of the interests of each, and he will no longer be constrained, by partial laws and violent remedies to separate at every moment the public welfare from that of individuals, and to raise the appearance of public security on fear and mistrust. As a profound and feeling philosopher let him allow men, that is, his brethren, to enjoy in peace that small share of happiness which is given them to enjoy in this corner of the universe, in that immense system established by the First Cause, by Him Who Is.A farm labourer, with a wife and four children, and earning eleven shillings a week, was imprisoned in the county gaol for two months for the theft of a pound of butter. Soon after his release sickness entered his home, and to supply his children��s wants[89] he again yielded to temptation and stole twelve duck��s eggs. For this he was sentenced to seven years�� penal servitude; or rather not for this theft, but because he had already incurred a severe punishment for a theft of some butter. The sentence was most perfectly lawful, but was it not perfectly unjust?

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