发布时间 : 星期四 文章论犯罪与刑罚(英文版)更新完毕开始阅读
all vices that cannot be concealed under the cloak of virtue.
I do not pretend to lessen that just abhorrence which these crimes deserve, but to discover the sources from whence they spring; and I think I may draw the following conclusion: That the punishment of a crime cannot be just,
that is necessary, if the laws have not endeavoured to prevent that crime by the best means which times and circumstances would allow.
Of Suicide.
Suicide is a crime which seems not to admit of punishment, properly speaking; for it cannot be inflicted but on the innocent, or upon an insensible dead body. In the first case, it is unjust and tyrannical, for
political liberty supposes all punishments entirely personal; in the second, it has the same effect, by way of example, as the scourging a statue. Mankind love life too well; the objects that surround them, the seducing
phantom of pleasure, and hope, that sweetest error of mortals, which makes men swallow such large draughts of evil, mingled with a very few drops of good, allure them too strongly, to apprehend that this crime will ever be
common from its unavoidable impunity. The laws are obeyed through fear of punishment, but death destroys all sensibility. What motive then can restrain the desperate hand of suicide?
He who kills himself does a less injury to society than he who quits his country for ever; for the other leaves his property behind him, but this
carries with him at least a part of his substance. Besides, as the strength of society consists in the number of citizens, he who quits one nation to
reside in another, becomes a double loss. This then is the question: whether it be advantageous to society that its members should enjoy the unlimited privilege of migration?
Every law that is not armed with force, or which, from circumstances, must be ineffectual, should not be promulgated. Opinion, which reigns over the minds of men, obeys the slow and indirect impressions of the legislator, but resists them when violently and directly applied; and useless laws
communicate their insignificance to the most salutary, which are regarded more as obstacles to be surmounted than as safeguards of the public good. But further, our perceptions being limited, by enforcing the observance of laws which are evidently useless, we destroy the influence of the most salutary.
From this principle a wise dispenser of public happiness may draw some
useful consequences, the explanation of which would carry me too far from my subject, which is to prove the inutility of making the nation a prison. Such a law is vain; because, unless inaccessible rocks or impassible seas divide the country from all others, how will it be possible to secure every point
of the circumference, or how will you guard the guards themselves? Besides, this crime once committed cannot be punished; and to punish it before hand would be to punish the intention and not the action, the will, which is entirely out of the power of human laws. To punish the absent by
confiscating his effects, besides the facility of collusion, which would
inevitably be the case, and which, without tyranny, could not be prevented, would put a stop to all commerce with other nations. To punish the criminal when he returns, would be to prevent him from repairing the evil he had already done to society, by making his absence perpetual. Besides, any prohibition would increase the desire of removing, and would infallibly prevent strangers from settling in the country.
What must we think of a government which has no means but fear to keep its subjects in their own country, to which, by the first impressions of their
infancy, they are so strongly attached. The most certain method of keeping men at home is to make them happy; and it is the interest of every state to turn the balance, not only of commerce, but of felicity, in favour of its subjects. The pleasures of luxury are not the principle sources of this
happiness, though, by preventing the too great accumulation of wealth in a few hands, they become a necessary remedy against the too great inequality of individuals, which always increases with the progress of society.
When the populousness of a country does not increase in proportion to its extent, luxury favours despotism for where men are most dispersed there is least industry, and where there is least industry the dependence of the poor upon the luxury of the rich is greatest, and the union of the oppressed against the oppressors is least to be feared. In such circumstances, rich
and powerful men more easily command distinction, respect, and service, by which they are raised to a greater height above the poor; for men are more independent the less they are observed, and are least observed when most numerous. On the contrary, when the number of people is too great in proportion to the extent of a country, luxury is a check to despotism;
because it is a spur to industry, and because the labour of the poor affords so many pleasures to the rich, that they disregard the luxury of
ostentation, which would remind the people of their dependence. Hence we see, that, in vast and depopulated states, the luxury of ostentation prevails over that of convenience; but in countries more populous, the luxury of convenience tends constantly to diminish the luxury of ostentation.
The pleasures of luxury have this inconvenience, that though they employ a great number of hands, yet they are only enjoyed by a few, whilst the rest who do not partake of them, feel the want more sensibly on comparing their state with that of others. Security and liberty, restrained by the laws, are the basis of happiness, and when attended by these, the pleasures of luxury favour population, without which they become the instruments of tyranny. As the most noble and generous animals fly to solitude and inaccessible
deserts, and abandon the fertile plains to man their greatest enemy, so men reject pleasure itself when offered by the hand of tyranny.
But, to return: -- If it be demonstrated that the laws which imprison men in their own country are vain and unjust, it will be equally true of those
which punish suicide; for that can only be punished after death, which is in the power of God alone; but it is no crime with regard to man, because the punishment falls on an innocent family. If it be objected, that the
consideration of such a punishment may prevent the crime, I answer, that he who can calmly renounce the pleasure of existence, who is so weary of life as to brave the idea of eternal misery, will never be influenced by the more distant and less powerful considerations of family and children.
Of Smuggling.
Smuggling is a real offence against the sovereign and the nation; but the
punishment should not brand the offender with infamy, because this crime is not infamous in the public opinion. By inflicting infamous punishments for crimes that are not reputed so, we destroy that idea where it may be useful. If the same punishment be decreed for killing a pheasant as for killing a man, or for forgery, all difference between those crimes will shortly
vanish. It is thus that moral sentiments are destroyed in the heart of man;
sentiments, the work of many ages and of much bloodshed; sentiments that are so slowly and with so much difficulty produced, and for the establishment of
which such sublime motives and such an apparatus of ceremonies were thought necessary. This crime is owing to the laws themselves; for the higher the duties the greater is the advantage, and consequently the temptation; which temptation is increased by the facility of perpetration, when the
circumference that is guarded is of great extent, and the merchandise
prohibited is small in bulk. The seizure and loss of the goods attempted to be smuggled, together with those that are found along with them, is just, but it would be better to lessen the duty, because men risk only in proportion to the advantage expected.
This crime being a theft of what belongs to the prince, and consequently to the nation, why is it not attended with infamy? I answer, that crimes which men consider as productive of no bad consequences to themselves, do not interest them sufficiently to excite their indignation. The generality of
mankind, upon whom remote consequences make no impression, do not see the evil that may result from the practice of smuggling, especially if they reap from it any present advantage. They only perceive the loss sustained by the prince. They are not then interested in refusing their esteem to the
smuggler, as to one who has committed a theft or a forgery, or other crimes, by which they themselves may suffer, from this evident principle, that a sensible being only interests himself in those evils with which he is acquainted.
Shall this crime then, committed by one who has nothing to lose, go unpunished? No. There are certain species of smuggling, which so
particularly affect the revenue, a part of government so essential, and
managed with so much difficulty, that they deserve imprisonment, or even slavery; but yet of such a nature as to be proportioned to the crime. For
example, it would be highly unjust, that a smuggler of tobacco should suffer the same punishment with a robber or assassin; but it would be most conformable to the nature of the offence, that the produce of his labour should be applied to the use of the crown, which he intended to defraud.
Of Sanctuaries.
ARE sanctuaries just? Is a convention between nations mutually to give up their criminals useful?
In the whole extent of a political state there should be no place
independent of the laws. Their power should follow every subject, as the
shadow follows the body. Sanctuaries and impunity differ only in degree, and as the effect of punishments depends more on their certainty than their
greatness, men are more strongly invited to crimes by sanctuaries than they are deterred by punishment. To increase the number of sanctuaries is to erect so many little sovereignties; for where the laws have no power, new bodies will be formed in opposition to the public good, and a spirit
established contrary to that of the state. History informs us, that from the use of sanctuaries have arisen the greatest revolutions in kingdoms and in opinions.
Some have pretended, that in whatever country a crime, that is, an action contrary to the laws of society, be committed, the criminal may be justly punished for it in any other; as if the character of subject were indelible, or synonymous with or worse than that of slave; as if a man could live in
one country and be subject to the laws of another, or be accountable for his actions to two sovereigns, or two codes of laws often contradictory. There are also those who think, that an act of cruelty committed, for example, at Constantinople may be punished at Paris, for this abstracted reason, that he who offends humanity should have enemies in all mankind, and be the object of universal execration; as if judges were to be the knights-errant of human nature in general, rather than guardians of particular conventions between men. The place of punishment can certainly be no other than that where the crime was committed; for the necessity of punishing an individual for the general good, subsists there, and there only. A villain, if he has not broke through the conventions of a society, of which, by my supposition, he was not a member, may be feared, and by force banished and excluded from that society, but ought not to be formally punished by the laws, which were only intended to maintain the social compact, and not to punish the intrinsic malignity of actions.
Whether it be useful that nations should mutually deliver up their
criminals? Although the certainty of there being no part of the earth where crimes are not punished, may be a means of preventing them, I shall not pretend to determine this question, until laws more conformable to the necessities, and rights of humanity, and until milder punishments, and the abolition of the arbitrary power of opinion, shall afford security to virtue and innocence when oppressed; and until tyranny shall be confined to the plains of Asia, and Europe acknowledge the universal empire of reason by which the interests of sovereigns and subjects are best united.
Of Sanctuaries.
ARE sanctuaries just? Is a convention between nations mutually to give up their criminals useful?
In the whole extent of a political state there should be no place
independent of the laws. Their power should follow every subject, as the
shadow follows the body. Sanctuaries and impunity differ only in degree, and as the effect of punishments depends more on their certainty than their
greatness, men are more strongly invited to crimes by sanctuaries than they are deterred by punishment. To increase the number of sanctuaries is to erect so many little sovereignties; for where the laws have no power, new bodies will be formed in opposition to the public good, and a spirit
established contrary to that of the state. History informs us, that from the use of sanctuaries have arisen the greatest revolutions in kingdoms and in opinions.
Some have pretended, that in whatever country a crime, that is, an action contrary to the laws of society, be committed, the criminal may be justly punished for it in any other; as if the character of subject were indelible, or synonymous with or worse than that of slave; as if a man could live in one country and be subject to the laws of another, or be accountable for his actions to two sovereigns, or two codes of laws often contradictory. There are also those who think, that an act of cruelty committed, for example, at Constantinople may be punished at Paris, for this abstracted reason, that he who offends humanity should have enemies in all mankind, and be the object of universal execration; as if judges were to be the knights-errant of human nature in general, rather than guardians of particular conventions between men. The place of punishment can certainly be no other than that where the crime was committed; for the necessity of punishing an individual for the general good, subsists there, and there only. A villain, if he has not broke