« ElőzőTovább »
softer way of correcting, and do not require so much force and severity.
In those states, a good legislator is less bent upon punishing, than preventing crimes; he is more attentive to inspire good morals, than to inflict penalties.
It is a constant remark of the Chinese authors, that the more the penal laws were increased in their empire, the nearer they drew towards a revolution. This is because pnnishments were augmented, in proportion as the public morals were corrupted.
It would be an easy matter to prove, that in all, or almost all the governments of Europe, penalties have increased or diminished, in proportion as those governments favoured or disa couraged liberty.
OF THE POWER OF PUNISHMENTS *,
EXPERIENCE shews, that in countries remarkable for the lenity: of their laws, the spirit of the inhabitants is as much affected by slight penalties, as in other countries by severer punishments.
If an inconvenience or abuse arises in the state, a violent government endeavours suddenly to redress it; and instead of putting the old laws in execution, it establishes some cruel punishment, which instantly puts a stop to the evil. But the spring of government hereby loses its elasticity; the imagination grows accustomed to the severe as well as the milder punishment; and as the fear of the latter diminishes, they are soon
* Chap. xii.
obliged in every case to bave recourse to the former. Robberics on the high-way were grown common in some countries; in order to reinedy this evil, they invented the punishment of breaking upon the wheel, the terror of which put a stop for a while to this mischievous practice. But soon after, robberies on the high-ways
as common as ever.
Desertion in our days was grown to a very great height ; in consequence of which it was judged proper to punish those delinquents with death ; and yet their number did not diminish. The reason is very natural; a soldier, accustomed to venture his life, despises, or affects to despise, the danger of losing it: He is habituated to the fear of shame ; it would have been there. fore much better to have continued a punishment +, which branded him with infamy for life; the penalty was pretended to be increased, while it really diminished.
Mankind must not be governed with too much severity; we ought to make a prudent use of the means which nature has given us to conduct them. If we enquire into the cause of all human corruptions, we shall find that they proceed from the impunity of criminals, and not from the moderation of punishments.
Let us follow nature, who has given shame to man for his scourge ; and let the heaviest part of the punishment be the infamy attending it.
But if there be some countries where shame is not a conses quence of punishment, this must be owing to tyranny, which has inflicted the same penalties on villains and honest men.
And if there are others where men are deterred only by cruel punishments, we may be sure that this must, in a great mea.
+ They slit his nose, or cut off his cars.
sure arise, from the violence of thic government, which has used such penalties for slight transgressions.
It often happens that a legislator, desirous of remedying an abuse, thinks of nothing else; his eyes are open only to this object, and shut to its inconveniences. When the abuse is redressed, you see only the severity of the legislator ; yet there remains an evil in the state that has sprung from this severity; the minds of the people are corrupted, and become habituated to despotism.
Lysander † having obtained a victory over the Athenians; the prisoners were ordered to be tried, in consequence of an accusation brought against that nation, of having thrown all the captives of two gallics down a precipicc, and of having resolved in full assembly to cut off the hands of those whom they should chance to make prisoners. The Athenians were therefore all massacred, except Adymantes, who had opposed this decree. Lysander reproached Philocles, before he was put to death, with having depraved the people's minds, and given lessons of cruelty to all Greece.
The Argires, says Plutarch $, having put fifteen hundred of their citizens to death, the Athenians ordered sacrifices of expiation, that it might please the Gods to turn the hearts of the Athenians from so cruel a thought.
There are two sorts of corruption; one when the people do not observe the laws ; the other when they are corrupted by the laws : an incurable evil, because it is in the very remedy itself.
# Xenoph. hist. lib. 3. $Morals, of those who are intrusted with the direction of the state affairs.
INSUFFICIENCY OF THE LAWS OF JAPAN *.
Excessive punishments may even corrupt a despotic government; of this we have an instance in Japan.
Here almost all crimes are punished with death +, because disobedience to so great an Emperor as that of Japan, is reckoneil an enormous crime. The question is not so much to correct the delinquent, as to vindicate the authority of the prince. These notions are derived from servitude, anl are owing espe. cially to this, that as the Emperor is universal proprietor, almost all crimes are directly against his interests.
They punish with death lies spoken before the magistrates † ; a proceeding contrary to natural defence.
Even things which have not the appearance of a crime, arc severely punished; for instance, a man that ventures his money at play is put to death.
True it is, that the character of this people, so amazingly obstinate, capricious, and resolute, as to defy all dangers and calamities, seems to absolve their legislators from the imputation of cruelty, notwithstanding the severity of their laws. But are men who have a natural contempt of death, and who rip open their bellies for the least fancy; are such men, I say, mended or deterred, or rather are they not hardened, by the continual prospect of punishments ?
* Chap. xiii.
+ Sec Kempfer. Collection of voyages that contributed to the establishment of the East-India Company, tom. 3. p. 128.
The relations of travellers inform us, with respect to the edu. cation of the Japanese, that children must be treated there with mildness, because they become hardened to punishment; that their slaves must not be too roughly used, because they immediately stand upon their defence. Would not one imagine, that they might easily have judged of the spirit which ought to reign, in their political and civil government, from that which should prevail in their domestic concerns ?
A wise legislator would have endeavoured to reclaim people, by a just temperature of punishments and rewards ; . by maxims of philosophy, morality, and religion, adapted to those characters; by a just application of the rules of honour, and by the enjoyment of case and tranquillity of life. And should he have entertained any apprehen. sion, that their minds being inured to the cruelty of punishments, would no longer be restrained by those of a milder nature, he would have conducted himself in another manner, and grined his point by degrees : in particular cases, that admitted of any indulgence, he would have mitigated the punishment, till he should have been able to extend this mitigation to all cases.
But these are springs to which despotic power is a stranger; ít may abuse itself, and that is all it can do: in Japan it has made its utmost effort, and has even surpassed itself in cruelty!
As the minds of the people grew wild and intractable, they were obliged to have recourse to the most horrid severity.
This is the origin, this the spirit of the laws of Japan. They
# Let this be observed as a maxim in practice, with regard to cases where the minds of people have been depraved by too great a severity of punishments.