We, the People. Adolph Psy.D. Caso
itself, can only make general laws, to bind the members; but it belongs not to him to judge whether any individual has violated the social compact, or incurred the punishment in consequence. For in this case, there are two parties, one represented by the sovereign, who insists upon the violation of the contract, and the other is the person accused, who denies it. It is necessary then that there should be a third person to decide this contest; that is to say, a judge, or magistrate, from whose determination there should be no appeal; and this determination should consist of a simple affirmation, or negation of fact.
If it can only be proved, that the severity of punishments, though not immediately contrary to the public good, or to the end for which they were intended, viz. to prevent crimes, be useless; then such severity would be contrary to those beneficent virtues, which are the consequence of enlightened reason, which instructs the sovereign to wish rather to govern men in a state of freedom and happiness, than of slavery. It would also be contrary to justice, and the social compact.
Chapter 4: Of the Interpretation of Laws
Judges, in criminal cases, have no right to interpret the penal laws, because they are not legislators. They have not received the laws from our ancestors as a domestic tradition, or as the will of a testator, which his heirs, and executors, are to obey; but they receive them from a society actually existing, or from the sovereign, its representative. Even the authority of the laws is not founded on any pretended obligation, or ancient convention; which must be null, as it cannot bind those who did not exist at the time of its institution; and unjust, as it would reduce men, in the ages following, to a herd of brutes, without any power of judging, or acting. The laws receive their force and authority from an oath of fidelity, either tacit, or expressed, which living subjects have sworn to their sovereign, in order to restrain the intestine fermentation of the private interests of individuals. From hence springs their true and natural authority. Who then is their lawful interpreter? The sovereign, that is, the representative of society, and not the judge, whose office is only to examine, if a man have, or have not committed an action contrary to the laws.
In every criminal cause the judge should reason syllogistically. The major should be the general law; the minor, the conformity of the action, or its opposition to the laws; the conclusion, liberty, or punishment. If the judge be obliged by the imperfection of the laws, or choose, to make any other, or more syllogisms than this, it will be an introduction to uncertainty.
There is nothing more dangerous than the common axiom: the spirit of the laws is to be considered. To adopt it is to give way to the torrent of opinions. This may seem a paradox to vulgar minds, which are more strongly affected by the smallest disorder before their eyes, than by the most pernicious, though remote, consequences produced by one false principle adopted by a nation.
Our knowledge is in proportion to the number of our ideas. The more complex these are, the greater is the variety of positions in which they may be considered. Every man hath his own particular point of view, and at different times, sees the same objects in very different lights. The spirit of the laws will then be the result of the good, or bad logic of the judge; and this will depend on his good or bad digestion; on the violence of his passions; on the rank, and condition of the accused, or on his connections with the judge; and on all those little circumstances, which change the appearance of objects in the fluctuating mind of man. Hence we see the fate of a delinquent changed many times in passing through the different courts of judicature, and his life and liberty, victims to the false ideas, or ill humor of the judge; who mistakes the vague result of his own confused reasoning, for the just interpretation of the laws. We see the same crimes punished in a different manner at different times in the same tribunals; the consequence of not having consulted the constant, and invariable voice of the laws, but the erring instability of arbitrary interpretation.
The disorders, that may arise from a rigorous observance of the letter of penal laws, are not to be compared with those produced by the interpretation of them. The first are temporary inconveniences which will oblige the legislator to correct the letter of the law, the want of preciseness, and uncertainty of which has occasioned these disorders; and this will put a stop to the fatal liberty of explaining; the source of arbitrary and venal declamations. When the code of laws is once fixed, it should be observed in the literal sense, and nothing more is left to the judge, than to determine, whether an action be, or be not conformable to the written law. When the rule of right which ought to direct the actions of the philosopher, as well as the ignorant, is a matter of controversy, not of facts, the people are slaves to the magistrates. The despotism of this multitude of tyrants, is more insupportable, the less the distance is between the oppressor and the oppressed; more fatal than that of one, for the tyranny of many is not to be shaken off, but by having recourse to that of one alone. It is more cruel, as it meets with more opposition, and the cruelty of a tyrant is not in proportion to his strength, but to the obstacles that oppose him.
These are means, by which security of person and property is best obtained; which is just, as it is the purpose of uniting in society; and it is useful, as each person may calculate exactly the inconveniences attending every crime. By these means, subjects will acquire a spirit of independence and liberty; however it may appear to those, who dare to call the weakness of submitting blindly to their capricious and interested opinions, by the sacred name of virtue.
These principles will displease those, who have made it a rule with themselves, to transmit to their inferiors the tyranny they suffer from their superiors. I should have every thing to fear, if tyrants were to read my book; but tyrants never read.
Chapter 5: Of the Obscurity of Laws
If the power of interpreting laws be an evil, obscurity in them must be another, as the former is the consequence of the latter. This evil will be still greater, if the laws be written in a language unknown to the people; who, being ignorant of the consequences of their own actions, become necessarily dependent on a few, who are interpreters of the laws, which, instead of being public, and general, are thus rendered private, and particular. What must we think of mankind, when we reflect, that such is the established custom of the greatest part of our polished, and enlightened Europe? Crimes will be less frequent, in proportion as the code of laws is more universally read, and understood: for there is no doubt, but that the eloquence of the passions is greatly assisted by ignorance, and uncertainty of punishments.
Hence it follows, that without written laws, no society will ever acquire a fixed form of government, in which the power is vested in the whole, and not in any part of the society; and in which, the laws are not to be altered, but by the will of the whole, nor corrupted by the force of private interest. Experience and reason shows us, that the probability of human traditions diminishes in proportion as they are distant from their sources. How then can laws resist the inevitable force of time, if there be not a lasting monument of the social compact?
Hence, we see the use of printing, which alone makes the public, and not a few individuals, the guardians and defenders of the laws. It is this art, which, by diffusing literature, has gradually dissipated the gloomy spirit of cabal and intrigue. To this art it is owing, that the atrocious crimes of our ancestors, who were alternately slaves, and tyrants, are become less frequent. Those who are acquainted with the history of the two or three last centuries, may observe, how, from the lap of luxury and effeminacy, have sprung the most tender virtues, humanity, benevolence, and toleration of human errors. They may contemplate the effects of, what was so improperly called, ancient simplicity, and good faith; humanity groaning under implacable superstition; the avarice and ambition of a few, staining, with human blood, the thrones and palaces of kings; secret treasons, and public massacres; every noble a tyrant over the people; and the ministers of the gospel of Christ, bathing their hands in blood. We may talk as we please of the corruption and degeneracy of the present age, but happily we see no such horrid examples of cruelty and oppression.
Chapter 6: Of the Proportion between Crimes and Punishments
It is not only the common interest of mankind, that crimes should not be committed, but that crimes of every kind should be less frequent, in proportion to the evil they produce to society. Therefore, the means made use of by the legislature to prevent crimes, should