英文版論法的精神-8

16. Of the just Proportion between Punishments and Crimes. It is an essential point, that there should be a certain proportion in punishments, because it is essential that a great crime should be avoided rather than a smaller, and that which is more pernicious to society rather than that which is less.

"An impostor,51 who called himself Constantine Ducas, raised a great insurrection at Constantinople. He was taken and condemned to be whipped; but upon informing against several persons of distinction, he was sentenced to be burned as a calumniator." It is very extraordinary that they should thus proportion the punishments between the crime of high treason and that of calumny.

This puts me in mind of a saying of Charles II, King of Great Britain. He saw a man one day standing in the pillory; upon which he asked what crime the man had committed. He was answered, "Please your Majesty, he has written a libel against your ministers." "The fool!" said the King, "why did he not write against me? They would have done nothing to him."

"Seventy persons having conspired against the Emperor Basil, he ordered them to be whipped, and the hair of their heads and beards to be burned. A stag, one day, having taken hold of him by the girdle with his horn, one of his retinue drew his sword, cut the girdle, and saved him; upon which he ordered that person's head to be cut off, for having," said he, "drawn his sword against his sovereign."52 Who could imagine that the same prince could ever have passed two such different judgments?

It is a great abuse amongst us to condemn to the same punishment a person that only robs on the highway and another who robs and murders. Surely, for the public security, some difference should be made in the punishment.

In China, those who add murder to robbery are cut in pieces:53 but not so the others; to this difference it is owing that though they rob in that country they never murder.

In Russia, where the punishment of robbery and murder is the same, they always murder.54 The dead, say they, tell no tales.

Where there is no difference in the penalty, there should be some in the expectation of pardon. In England they never murder on the highway, because robbers have some hopes of transportation, which is not the case in respect to those that commit murder.

Letters of grace are of excellent use in moderate governments. This power which the prince has of pardoning, exercised with prudence, is capable of producing admirable effects. The principle of despotic government, which neither grants nor receives any pardon, deprives it of these advantages.

17. Of the Rack. The wickedness of mankind makes it necessary for the law to suppose them better than they really are. Hence the deposition of two witnesses is sufficient in the punishment of all crimes. The law believes them, as if they spoke by the mouth of truth. Thus we judge that every child conceived in wedlock is legitimate; the law having a confidence in the mother, as if she were chastity itself. But the use of the rack against criminals cannot be defended on a like plea of necessity.

We have before us the example of a nation blessed with an excellent civil government,55 where without any inconvenience the practice of racking criminals is rejected. It is not, therefore, in its own nature necessary.56

So many men of learning and genius have written against the custom of torturing criminals, that after them I dare not presume to meddle with the subject. I was going to say that it might suit despotic states, where whatever inspires fear is the fittest spring of government. I was going to say that the slaves among the Greeks and Romans — but nature cries out aloud, and asserts her rights.

18. Of pecuniary and corporal Punishments. Our ancestors, the Germans, admitted of none but pecuniary punishments. Those free and warlike people were of opinion that their blood ought not to be spilled but with sword in hand. On the contrary, these punishments are rejected by the Japanese,57 under pretence that the rich might elude them. But are not the rich afraid of being stripped of their property? And might not pecuniary penalties be proportioned to people's fortunes? And, in fine, might not infamy be added to those punishments?

A good legislator takes a just medium; he ordains neither always pecuniary, nor always corporal punishments.

19. Of the Law of Retaliation. The use of the law of retaliation58 is very frequent in despotic countries, where they are fond of simple laws. Moderate governments admit of it sometimes; but with this difference, that the former exercise it in full rigour, whereas among the latter it ever receives some kind of limitation.

The law of the Twelve Tables admitted two: first, it never condemned to retaliation, but when the plaintiff could not be satisfied in any other manner.59 Secondly, after condemnation they might pay damages and interest,60 and then the corporal was changed into a pecuniary punishment.61

20. Of the Punishment of Fathers for the Crimes of their Children. In China, fathers are punished for the crimes of their children. This was likewise the custom of Peru62 — a custom derived from the notion of despotic power. Little does it signify to say that in China the father is punished for not having exerted that paternal authority which nature has established, and the laws themselves have improved. This still supposes that there is no honour among the Chinese. Amongst us, parents whose children are condemned by the laws of their country, and children63 whose parents have undergone the like fate, are as severely punished by shame, as they would be in China by the loss of their lives.

21. Of the Clemency of the Prince. Clemency is the characteristic of monarchs. In republics, whose principle is virtue, it is not so necessary. In despotic governments, where fear predominates, it is less customary, because the great men are to be restrained by examples of severity. It is more necessary in monarchies, where they are governed by honour, which frequently requires what the very law forbids. Disgrace is here equivalent to chastisement; and even the forms of justice are punishments. This is because particular kinds of penalty are formed by shame, which on every side invades the delinquent.

The great men in monarchies are so heavily punished by disgrace, by the loss (though often imaginary) of their fortune, credit, acquaintances, and pleasures, that rigour in respect to them is needless. It can tend only to divest the subject of the affection he has for the person of his prince, and of the respect he ought to have for public posts and employments.

As the instability of the great is natural to a despotic government, so their security is interwoven with the nature of monarchy.

So many are the advantages which monarchs gain by clemency, so greatly does it raise their fame, and endear them to their subjects, that it is generally happy for them to have an opportunity of displaying it; which in this part of the world is seldom wanting.

Some branch, perhaps, of their authority, but never hardly the whole, will be disputed; and if they sometimes fight for their crown, they do not fight for their life.

But some may ask when it is proper to punish, and when to pardon. This is a point more easily felt that prescribed. When there is danger in the exercise of clemency, it is visible; nothing so easy as to distinguish it from that imbecility which exposes princes to contempt and to the very incapacity of punishing.

The Emperor Maurice made a resolution never to spill the blood of his subjects. Anastasius64 punished no crimes at all. Isaac Angelus took an oath that no one should be put to death during his reign. Those Greek emperors forgot that it was not for nothing they were entrusted with the sword.