614 



L A 



Law. 



10. Pervad- 

 ing princi- 

 ple of cri- 

 minal code 

 should be 

 to adapt 

 punishment 

 to nature of 

 offence. 



Outline by 

 Monies 

 quieu on 

 this prin- 

 ciple. 



Applica- 

 tion of prin. 

 ciple to of- 

 fences. 

 1. Against 

 Religion. 



t. Against 

 manners. 



particular theft in question the thief himself never 

 can. The receiver it is true, by his very trade, en- 

 courages, generally, the commission of the crime, and 

 often renders the conviction of the criminal more diffi- 

 cult ; but it is the thief who has committed the crime ; 

 all is passive on the part of the receiver, the thief is 

 active; the latter must have overcome greater obstacles 

 before he could arrive at such a point of guilt, and ac- 

 quired greater boldness in the commission of crimes. 



29. (10.) There is a principle, capable of being re- 

 duced to considerable precision, which will serve as a 

 general rule for estimating the merits of the criminal 

 code of a people. A capital excellence in such a code, 

 consists in the punishment being drawn from the pe- 

 culiar nature of the crime committed, and a corres- 

 pondent defect in a deviation from this principle. No- 

 thing can tend more to connect the idea of punishment 

 with guilt, as well in the breast of him who is about 

 to commit the crime, as of them who are witnesses of 

 bis punishment, whilst also it naturally conducts to a 

 just proportion between the punishment and the of- 

 fence. Upon this principle Montesquieu * has sketched 

 the outline of a criminal code. 



" There are," says he, " four sorts of crimes : the 

 first sort offend against religion ; the second, against 

 manners; the third, the peace of society; and the fourth, 

 the security of the citizens. The punishments proper 

 to each of these sorts of crimes, should be derived from 

 the nature of each. 



" The class of crimes which relate to religion, should 

 comprise such only as directly attack it, as are all cases 

 of simple sacrilege t; for crimes which disturb merely 

 the exercise of religion, belong to the class either of 

 those against the public peace, or the security of the 

 citizens. That the punishment of these acts of simple 

 sacrilege may be derived from the nature of the thing, 

 it ought to consist in depriving the guilty person of all 

 the advantages which the national religion confers ; 

 such as exclusion from places of public worship, ex- 

 communication, &c. In matters relating to tile pub- 

 lic peace, or the security of the citizens, acts, though 

 of a less open or direct nature, may be the proper sub- 

 ject of human justice ; but in matters relating to the 

 Divinity, where there is no public act, there is no 

 ground for accusation. In that case, the matter is sole- 

 ly between God and his creature ; and to God alone 

 it then belongs to make the measure and the time of his 

 vengeance. But if, confounding the nature of things, 

 the magistrate is industrious to detect such private de- 

 viations from the national standard, J he introduces an 

 inquisition which is not only unnecessary but highly im- 

 politic, and destroys the liberty of the citizens by arming 

 against them the united zeal of every timid and every 

 intolerant conscience. The evil arises hence, that it is 

 deemed necessary to avenge the Deity; as if it should 

 not be our study rather to honour the Deity than to 

 avenge him. Proceeding upon this idea, where shall 

 punishments stop > If human laws are to avenge an 

 infinite Being, they ought to be regulated by adequate 

 notions of his infinitude, not spring from the imbeci- 

 lity, the ignorance, and the caprices of human na- 

 ture. 



"The second class of crimes, or those against manners, 



1.11W. 



tlle 



Agaii 



are such as violate public or private decency in the 

 mode of gratifying the senseg. The punishment of these 

 should in like manner be drawn from the nature of 

 the thing. Deprivation of all those advantages which 

 society has connected with purity of manners ; shame ; 

 necessity of withdrawing from the view of the citizens; 

 public infamy ; expulsion from the city, or even from 

 the community; in short, the different sorts of punish- 

 ment which are properly corrective, should suffice to 

 repress the shamelessness of either sex. In truth, such 

 offences are less founded in criminality, or an intention 

 to injure another, than in forgetfulness or contempt of 

 one's self. But we must here keep in view those of- 

 fences which affect manners only, itot those crimes 

 which, affecting also the security of the citizens, such 

 as the abduction of women, and rape, fall properly un- 

 der the fourth class. 



" The crimes of the third class are those which relate ' 

 to the public peace. And here also the punishment 

 ought to refer to the nature of the offence, and be strict- P cacF ' 

 ly corrective, as confinement, exile, and such penalties 

 as tend to reform unquiet spirits, and bring them back 

 to established order. But neither must such offences 

 be confounded with those which include a violation of 

 the public security, but must be confined to a simple 

 breach of police. 



" The penalties of the fourth and last class of crimes, 4. Again 

 or such as offend against the security of l/ie citizens, are the secui 

 those which are more strictly denominated punish- of thc dl 

 ments. They arise from a sort ofli:x t'llionis, which re- z ^ ns '. 

 quires that the society should withdraw its security ,. arc [ to 

 from him who has deprived, or endeavoured to deprive, Their per. 

 another of that security. This sort of punishment is sons or p 

 derived from the nature of things, is founded in reason, ?"'? 

 and has a direct reference to the very principles them- 

 selves of good and evil. A citizen deserves death when 

 he has violated the public security so far aj> to have de- 

 prived another of lite. But this punishment of death 

 ought to be regarded as an extreme remedy for diseased 

 society. It may sometimes happen that when the pub- 

 lic security tvil/t regard to property has been injured, 

 there may be reasons for inflicting a capital pain ; but 

 it were perhaps wiser, and would certainly be more 

 agreeable to the nature of things, if the punishment in 

 such cases were commonly confined to the loss of pro- 

 perty. But as it usually happens that the property of 

 others is attacked by those who have none themselves, 

 corporal punishment supplies, of necessity, the place 

 of pecuniary. " 



30. (11.) As enactments cannot foresee and parti- jj. HO, 

 cularise every case, it is the business of reason to com- laws to t 

 pare the facts which are omitted with those which are construa 

 specified. Witli the public good in view as the great an 

 rule of decision, the new law should be compared with 1>r 

 the old; a strict regard maintained to the whole tenor; 

 the real spirit and import considered rather than the 

 mere terms; the defects and obscurities of expression 

 supplied and explained by reference to that real im- 

 port ; and even recurrence had to neighbouring insti- 

 tutions. Yet we must be jealous of an arbitrary exten- 

 sion of one case to another, and above all in matters 

 penal. That subtlety which busies itself in drawing 

 consequences is contrary to the sentiments of humanity, 



* See Theorie des Peinci et des Recompenses, par Jcr. Bentham, who has enlarged upon this sketch of Montesquieu. 



f- La sacrileges simplts by which we suppose Montesquieu means, all violent and grossly indecent attacks upon the doctrines of the 

 received religion ; which, being hallowed in the public mind, and adopted as a part of the law of the land, cannot be insulted without 

 insulting the law itself, and tlie whole body of the people. 



Let tacriltgcs mchccs. 



