it is evident, that it is precisely in this manner 

 that we render ourselves guilty of the most crying 

 injustice; and, while we almost always fail to 

 obtain a just estimate of the crime, fail equally in 

 the proportionate application of the punishment. 



I submit to the consideration of legislators 

 some considerations which must necessarily have 

 been presented a thousand times, and which will 

 be refuted a thousand times — perhaps for the sole 

 reason, that their principle has not been tested by 

 an acquaintance with human nature in detail. 



Crimes and Misdemeanors are not committed of 

 themselves; they cannot, therefore, be con- 

 sidered as abstract beings. 



Crimes and Offences are the result of the actions 

 of individuals ; they therefore receive their 

 character from the nature and situation of 

 these individuals ; and they can only be esti- 

 mated and determined, according to the nature 

 and situation of these same individuals. 



You appear to deny these axioms. Well ! I 

 shall prove them to you. 



You judge, and you punish an act committed 

 in intoxication, or in violent rage, differently from 

 the same act when committed in the full posses- 

 sion of reason, and with premeditation. You 

 judge a theft, a murder — committed by an idiot, a 

 madman, otherwise than you judge a theft, a 

 murder, committed by a man enjoying his reason. 



You acknowledge, then, and you must acknow- 

 ledge, that acts are nothing in themselves ; that 

 they receive their character from the individual 

 who committed them. But why do you refuse to 

 be consistent in the greater part of your criminal 

 prosecutions ? I ask you, and let your conscience 

 answer me : — Is that tbe same sort of robbery, 

 which is committed by a dishonest gamester, by 

 a robust idler, by a debauched usurer, as that 

 committed by a feeble widow, lying in extreme 

 want with numerous children crying to her for 

 bread ? 



Is that the same sort of murder, which is com- 

 mitted .by an insulted brother, against the perjured 

 seducer of his beloved sister, as that committed 

 by a son-in-law, who, the sooner to riot in profu- 

 sion and debauchery, poisons the parents of his 

 wife? 



Pursue, yourselves, the list of crimes and 

 offences, the degree of whose criminality differs 

 totally, and which in your legislation, are con- 

 founded in the same rank; and say if I am wrong 

 to reproach you, that criminal legislation is yet 

 in its infancy. In general, without turning our 

 eyes on a thousand other extenuating or aggra- 

 vating circumstances, which do not at all influence 

 your final judgment, how have you been able to 

 decide that the actions of men without education, 

 ignorant even of the existence of a penal code, 

 superstitious, at the mercy of violent and gross 

 passions, &c., ought to be stamped with the same 

 degree of immorality and culpability as the actions 

 of men, who knowing the whole extent, and the 

 whole danger of their perversity, surround it with 

 cunning and hypocrisy, the better to secure the 

 impunity of their crimes ? 



For the same reason, you will not persuade me, 

 that the prison, branding, the collar, (carcan,) 



corporal punishment, hard labor, and even death 

 are the same punishment to persons of all sexes 

 ages, constitutions, and of all conditions ; to 

 vagabonds, unknown, insulated, degraded, accus- 

 tomed to privations and to hard and precarious 

 living ; for that race of the brazen-faced and im- 

 pudent, who make a boast of their crimes ; who 

 are tied to the infamous post of the pillory, walk 

 to the scaffold, gaily insult the spectators, &c ; ; as 

 they are for persons imbued with the principles 

 of honor, accustomed to the comforts of life, con- 

 nected to society by a respectable family, by a 

 wife and children, but overtaken by crime in an 

 unhappy moment, &c. 



These reflections will suffice to make eacb one 

 sensible that the measure of the culpability, and 

 the measure of the punishment, should not be 

 derived either from the matter of the illegal act, 

 nor from any determinate punishment ; but solely 

 from the situation of the individual acting. 



But, it will be said, in what difficulties do you 

 involve criminal jurisdiction ! Certainly it is 

 very easy to say, such a crime, such an offence, 

 demands such a punishment; all the science of 

 the judge is then reduced to substantiating and 

 determining the fact; as to the application of the 

 punishment, there is no longer the least em- 

 barrassment. But it cannot be doubted that, 

 according to these principles, we every instant 

 confound the unfortunate with the wicked ; and 

 sometimes must punish too much, sometimes too 

 little, and ever be liable to pass the most misplaced 

 and the most unjust judgments. 



The opinions and errors of ideologists and 

 meaphysicians may be indifferent on account 

 of their sterility ; but, it is matter of sacred duty 

 that the opinions of those who exert a more or 

 less powerful influence on the happiness and misery 

 of society, that the opinions of governors, instruc- 

 tors, moralists, legislators, physicians, should be 

 based on the nature and the wants of man. 



Of the Gradation of Punishments, and of the 

 Punishment of Death. 



It is with good reason, that men have adopted 

 the principle of the gradation of punishments. 

 We punish the same offence with the more seve- 

 rity, according as it has been more frequently com- 

 mitted ; because the repetitions imply a more 

 imperious propensity to crime and greater corrup- 

 tion in the culprit. 



We punish differently a simple theft, robberies 

 committed in the night, and with breaking in 

 with armed force, with riot ; we act with more 

 severity toward the leader of an insurrection, 

 than his accomplices ; against those counterfeiters 

 who coin gold and silver, than those who only 

 stamp coins of copper. We inflict on a mother 

 who has exposed her infant, different punishments 

 according as the infant has incurred more or less 

 risk of perishing ; and by these modifications of 

 the laws, we imply that it is necessary to choose 

 means more and more efficacious, graduated ac- 

 cording to the intention of the malefactor, and 

 according to the more or less serious conse- 

 quences of his crime. 



Experience has proved, that, in certain cases, 

 it is even necessary to resort to the punishment of 

 death. But how many objections has not the 

 sensibility of philanthropists raised against the 



