We, the People. Adolph Psy.D. Caso
The intent of good laws is to oppose this effort, and to diffuse their influence universally, and equally. But men generally abandon the care of their most important concerns to the uncertain prudence and discretion of those, whose interest it is to reject the best, and wisest institutions; and it is not till they have been led into a thousand mistakes in matters, the most essential to their lives and liberties, and are weary of suffering, that they can be induced to apply a remedy to the evils, with which they are oppressed. It is then they begin to conceive, and acknowledge the most palpable truths, which, from their very simplicity, commonly escape vulgar minds incapable of analyzing objects, accustomed to receive impressions without distinction, and to be determined rather by the opinions of others, than by the result of their own examination.
If we look into history we shall find, that laws, which are, or ought to be, conventions between men in a state of freedom, have been, for the most part, the work of the passions of a few, or the consequences of a fortuitous, or temporary necessity; not dictated by a cool examiner of human nature, who knew how to collect in one point, the actions of a multitude, and had this only end in view, the greatest happiness of the greatest number. Happy are those few nations, who have not waited, till the slow succession of human vicissitudes, should, from the extremity of evil, produce a transition to good; but, by prudent laws, have facilitated the progress from one to the other! And how great are the obligations due from mankind to that philosopher, who from the obscurity of his closet, had the courage to scatter amongst the multitude, the seeds of useful truths, so long unfruitful!
The art of printing has diffused the knowledge of those philosophical truths, by which the relations between sovereigns and their subjects, and between nations, are discovered. By this knowledge, commerce is animated, and there has sprung up a spirit of emulation, and industry, worthy of rational beings. These are the produce of this enlightened age; but the cruelty of punishments, and the irregularity of proceeding in criminal cases, so principal a part of the legislation, and so much neglected throughout Europe, has hardly ever been called in question. Errors, accumulated through many centuries, have never yet been exposed by ascending to general principles; nor has the force of acknowledged truths been ever opposed to the unbounded licentiousness of ill-directed power, which has continually produced so many authorized examples of the most unfeeling barbarity. Surely, the groans of the weak, sacrificed to the cruel ignorance, and indolence of the powerful; the barbarous torments lavished, and multiplied with useless severity, for crimes either not proved, or in their nature impossible; the filth and horrors of a prison, increased by the most cruel tormentor of the miserable, uncertainty, ought to have roused the attention of those whose business is to direct the opinions of mankind.
The immortal Montesquieu has but slightly touched on this subject. Truth, which is eternally the same, has obliged me to follow the steps of that great man: but the studious part of mankind, for whom I write, will easily distinguish the superstructure from the foundation. I shall be happy, if with him, I can obtain the secret thanks of the obscure, and peaceful disciples of reason, and philosophy; and excite that tender emotion, in which sensible minds sympathize with him, who pleads the cause of humanity.
Chapter 1: Of the Origin of Punishment
Laws are the conditions, under which men, naturally independent, united themselves in society. Weary of living in a continual state of war, and of enjoying a liberty which became of little value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy the rest in peace and security. The sum of all these portions of the liberty of each individual constituted the sovereignty of a nation; and was deposited in the hands of the sovereign, as the lawful administrator. But it was not sufficient only to establish this deposit; it was also necessary to defend it from the usurpation of each individual, who will always endeavor to take away from the mass, not only his own portion, but to encroach on that of others. Some motives, therefore, that strike the senses, were necessary to prevent the despotism of each individual from plunging society into its former chaos. Such motives are the punishments established against the infractor of the laws. I say, that motives of this kind are necessary; because, experience shows, that the multitude adopt no established principle of conduct; and because, society is prevented from approaching to that dissolution, (to which, as well as all other parts of the physical, and moral world, it naturally tends) only by motives, that are the immediate objects of sense, and which being continually presented to the mind, are sufficient to counterbalance the effects of the passions of the individual, which oppose the general good. Neither the power of eloquence, nor the sublimest truths, are sufficient to restrain, for any length of time, those passions, which are excited by the lively impressions of present objects.
Chapter 2: Of the Right to Punish
Every punishment, which does not arise from absolute necessity, says the great Montesquieu, is tyrannical. A proposition which may be made more general, thus. Every act of authority of one man over another, for which there is not an absolute necessity, is tyrannical. It is upon this then, that the sovereign's right to punish crimes is founded; that is, upon the necessity of defending the public liberty, entrusted to his care, from the usurpation of individuals; and punishments are just in proportion, as the liberty, preserved by the sovereign, is sacred and valuable.
Let us consult the human heart, and there we shall find the foundation of the sovereign's right to punish; for no advantage in moral policy can be lasting, which is not founded on the indelible sentiments of the heart of man. Whatever law deviates from this principle will always meet with a resistance, which will destroy it in the end; for the smallest force, continually applied, will overcome the most violent motion communicated to bodies.
No man ever gave up his liberty, merely for the good of the public. Such a chimera exists only in romances. Every individual wishes, if possible, to be exempted from the compacts, that bind the rest of mankind.
The multiplication of mankind, though slow, being too great for the means, which the earth, in its natural state, offered to satisfy necessities, which every day became more numerous, obliged men to separate again, and form new societies. These naturally opposed the first, and a state of war was transferred from individuals to nations.
Thus it was necessity that forced men to give up a part of their liberty; it is certain then, that every individual would choose to put into the public stock the smallest portion possible; as much only as was sufficient to engage others to defend it. The aggregate of these, the smallest portions possible, forms the right of punishing: all that extends beyond this is abuse, not justice.
Observe, that by justice I understand nothing more, than that bond, which is necessary to keep the interest of individuals united; without which, men would return to their original state of barbarity. All punishments, which exceed the necessity of preserving this bond, are in their nature unjust. We should be cautious how we associate with the word justice, an idea of any thing real, such as a physical power, or a being that actually exists. I do not, by any means, speak of the justice of God, which is another kind, and refers immediately to rewards and punishments in a life to come.
Chapter 3: Consequences of the Foregoing Principles
The laws only can determine the punishment of crimes; and the authority of making penal laws can only reside with the legislator, who represents the whole society, united by the social compact. No magistrate then (as he is one of the society) can, with justice, inflict on any other member of the same society, punishment, that is not ordained by the laws. But as a punishment, increased beyond the degree fixed by the law, is the just punishment, with the addition of another; it follows that no magistrate, even under a pretence of zeal, or the public good, should increase the punishment already determined by the laws.
If every individual be bound to society, society is equally bound to him, by a contract, which from its nature, equally binds both parties. This obligation, which descends from the throne to the cottage, and equally binds the highest, and lowest of mankind, signifies nothing more, than that it is the interest of all, that conventions, which are useful to the greatest number, should be punctually observed. The violation of this compact by any individual, is an introduction to anarchy.
The sovereign, who represents the society