Chapter 4

The Four Kinds of Crimes

September 29, 2015

LIBERTY is perfected when:

  • criminal laws derive each punishment from the nature of the crime.
  • there are then no arbitrary decisions
  • the punishment does not flow from the capriciousness of the legislator, but from the very nature of the thing
  • man uses no violence to man

There are four sorts of crimes:

  1. Religious crimes
  2. Moral crimes
  3. Crimes against the public peace
  4. Crimes against the citizen’s security

The punishments inflicted for these crimes should come from the nature of each of these species.

Religious crimes

I include simple sacrileges as a religious crime because it disturbs the exercise of religion. they are of the nat ure of those which prejudice the tranquility or security of the subject, an d ought to be referred to those classes.

Simple sacrileges can be punished accrding to its nature by depriving people of the advantages conferred by religion:

  • expelling them out of the temples
  • an exclusion from the society of the faithful

In things that prejudice the tranquility or security of the state, secret actions are subject to human jurisdiction = but, in those which offend the Deity, where there is no public act, there can be no criminal matter; the whole passes betwixt man and God, who knows the measure and time of his vengeance. Now, if magistrates, confounding th ings, should inquire also into hidden sacrileges, this inquisition would be directed to a kind of action that does not at all require it; the liberty of the subject would be subverted by arming the zeal of timorous, as well a s of presumptuous, consciences against him.

The mischief arises from a notion, which some people have entertained, of revenging the cause of the Deity. But we must honour the Deity, and leave him to avenge his own cause. And, indeed, were we to be directed by such a notion, where would be the end of punishme nts? If human laws are to avenge the cause of an infinite Being, they will be directed by his infinity, and not by the weakness, ignorance, and capric e, of man.

An historian of Provence relates a fact, which furnis hes us with an excellent description of the consequences that may arise, in weak capacities, from the notion of avenging the DeityE28099s cause. A Jew was accused of having blasphemed against the virgin Mary; and, upon con viction, was condemned to be flead alive. A strange spectacle was then exhi bited= gentlemen masked, with knives in their hands, mounted the scaffold, and drove away the executioner, in order to be the avengers themselves of t he honour of the blessed virgin. I do not here choose to anticipa te the reflections of the reader.

Moral crimes

Examples are violations 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 punishm ent of those crimes should be also derived from the nature of the thing. The privation of such advantages as society has attached to the purity of m orals, fines, shame, necessity of concealment, public infamy, expulsion fro m home and society, and, in fine, all such punishments as belong to a corre ctive 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 r elate merely to morals; for, as to those that are also prejudicial to the p ublic 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 tranquili ty; such as imprisonment, exile, and other like chastisements, proper for r eclaiming turbulent spirits and obliging them to conform to the established order.

I confine those crimes that injure the p ublic 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 cla ss.

The punishments inflicted upon the latte r crimes are such as are properly distinguished by that name. They are a ki nd of retaliation, by which the society refules security to a member who ha s actually or intentionally deprived another of his security. These punishm ents 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 vi olated the security of the subject so far as to deprive, or attempt to depr ive, 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= b ut it would be much better, and perhaps more natural, that crimes committed against the security of property should be punished with the loss of pro perty; 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 r eadiest 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.

Chapter 5= Certain Accusations that require particular Moderation and Prudence

IT is an important maxim, that we should be very circumspect in the prosecution of wi tchcraft and heresy. The accusation of these two crimes may be vastly injur ious 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 p ersons actions, but at his character, it grows dangerous in propor tion 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 t he constant practice of every duty in life, are not a sufficient security a gainst the suspicion of his being guilty of the like crimes.

Under Manuel Comnenus, the protestator that Aaron was detect ed, as he was poring over a book of Solomons, the reading of which was sufficient to conjure up whole legions of devils. Now, by supposing a power in witchcraft to rouse the infernal spirits to arms, people look up on a man whom they call a sorcerer as the person in the world most likely t o disturb and subvert society; and, of course, they are disposed to punish him with the utmost severity.

But their indignation increases when wit chcraft is supposed to have a power of subverting religion. The history of Constantinople* inform s us, that, in consequence of a revelation, made to a bishop, of a miracle E28099s 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 th ings did not this single crime depend! E28094 That revelations should no t be uncommon; that the bishop should be favoured with one; that it was rea l; 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 Theodor us Lascaris attributed his illness to witchcraft. Those who were acc used 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 should make us doubt of all those that are founded on public hatred.

I have not here asserted that heresy oug ht not to be punished; I said only that we ought to be extremely circumspec t in punishing it.