Essays On Crimes In America

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Crime and Its Causes


Abstract

The problem of crime has been a constant menace to society. From petty theft to robbery with violence, crime continues to be a migraine to the government of the day. The rise in crime rates over many states is alarming, and testament of the myriad of challenges that face society. The need to overcome the majority of these problems has led many a government into seeking solutions to a problem of which they do not know the causes. All through the United States of America, the causes of crime seem to be identical in nature. The war the government wages against crime can only be won with a deep understanding of the roots of this vice. In order to overcome crime in modern USA society, the government must have a deep understanding of the causes of crime, and the factors that lead to increased crime levels in society. This paper attempts to uncover the causes of crime and the causal linkage, if any, between these causes and the rampancy of crime.

Introduction

Crime persists as one of the challenges societies face. The constant rise in crime rates the United States over is a certain cause for alarm. This is because many neighborhoods, which are at the grassroots of crime, continue to feel the adverse effects of this problem (Darrow, 2009). Many young men and women lose their lives daily because of crime in one way or another. Many are part of the criminal gangs that control neighborhoods, and even more are victims of robbery and homicide.

It is necessary to fix this problem, and the only way to do so is to understand the causes of crime in their entire scope (Burke, Tomlinson, Cooper, 2011). This is because the only way to fix a problem as big as this one is by first understanding its causes. There is a great need to grasp the full understanding of the causes of crime in order to effectively combat this problem. In almost all the neighborhoods in which crime is a constant threat, there are a number of baseline underlying factors that are responsible for this high crime rates. The need to address these underlying factors is high as this is the only way crime can be significantly reduced all over the United States of America.


The countless efforts to solve the menace of crime in many American neighborhoods is testament of the need to understand the causes of crime. Factors such as poverty, low education levels and unemployment have been instrumental in perpetuating this problem. This is because many of the perpetrators of crime have been found to have these traits in common. Based on this, it is necessary to address these factors in a conclusive manner, to prevent further growth of these cancerous tumors that continue to eat away society. Only by addressing these factors, will society witness reduced crime rates.

It is mandatory that the causes of crime are understood, in order to reduce the rampancy of crime in the United States of America. This research is geared at understanding the causes of crime in all the neighborhoods of the United States of America (Dressler, 2002). It is aimed at getting the full understanding of these problems in order to solve the problem of crime. By determining the baseline causes of crime in American neighborhoods, efforts to curb, crime can be taken. Taking these efforts from an informed point of view is vital in guaranteeing the successful prevention of crime in America.


Literature Review

The recent drops in crime rates all over the United State of America have been met with jubilant citizens. These citizens are happy that their societies are much safer than they had been before the surveys were conducted. However, reduced crime rates do not spell absence of any crime at all, seeing that many innocent civilians continue to be the victims of heinous crimes ranging from sexual assault to robbery with violence. This is a great impediment to society since it highlights the sad reality that the underlying causes of crime have not yet been addressed.

The current condition is similar to that of a physician prescribing medicine to soothe the patient’s pain, without actually curing the disease causing the pain. The need for the underlying causes of crime in the United States of America to be addressed is very great. Many civilians suffer because of a few individuals who wield no power per se, except the power of a gun or a club at hand. There is growing concern that the government, in collaboration with its security organs, is doing very little to address the menace of crime. These forces are primarily concerned about punishing the perpetrators of crime while paying lip service to the actual causes of crime in the United States of America today. The case of Florida is a good example of the sad reality concerning crime in the American society at the moment.

Causes of Crime in Florida

The causes of crime can be defined as biological, sociological or even psychological. This is because the underlying causes of crime depend on the biological and psychological state of the individual, as well as the social circles in which the individual resides . The deadly combination of these forces is capable of churning out extremely violent, hardcore criminals out of young men and women. Among the leading causes of crime in Florida and the United States of America, is peer influence. A vast majority of the perpetrators of crime, up to 90%, are young men who have been influenced negatively by the society in which they live. Peer influence takes advantage of two main aspects to guarantee success; that is weakness and poor judgment.

The nature of many young men and women pushes them into conforming to the socially acceptable standards in the various aspects of their lives. Many of these aspects include drugs, alcohol, sex, money and even fashion. The ability of the few rotten tomatoes among the young men and women to manipulate others into crime as a means of social conformity plays a central role in the propagation of crime.

Many youths believe that getting into crime will make them popular, will make them respected and will give them the money they need to conform in terms of drugs, sex, alcohol and fashion. The psychological and emotional weaknesses present in many of these youths prevent them from refusing to conform to ‘socially acceptable standards’. The fact that many of these youths are unable to control their own wills leaves them at the mercy of the many ‘wolves’, waiting to increase the numbers of their gang members.

Poor parenting is also one of the leading causes of crime in Florida and the United States at large. The power that a good household has in shaping the characters and mentalities of growing children cannot be underestimated. All human beings have an innate desire to belong, and this desire is extended to cover the desire to belong in a family (Crutchfield, 2000). Young children are especially vulnerable to this desire, and they wish to belong to a complete family. However, the recent rising trend in single-parent households plays an essential role in the propagation of crime. In Florida, a survey conducted found out that children who have grown up in fatherless households are more likely to commit crimes than children who have grown up in normal households.

The absence of a father figure to guide and mold the characters of men in their growth process results, in children raising themselves. Many youths, particularly young men, have been fooled into believing that joining a gang and killing many innocent people, is the way to prove oneself as a man. This has been detrimental in the fight against crime, seeing that many youths grow up with false notions of manhood: notions that revolve around crime, assault and violence.

The failure of parents to control, supervise and monitor their children’s habits also plays a role in crime. A family may be complete, but failure of parents to direct their children in the right paths results, in misguided children that can be easily lured into vices such as crime and prostitution. It is necessary that parents dedicate themselves to guiding their children in the right paths.

The distinct relation between poverty and crime rates cannot go overlooked. This is because it is normal to have high crime rates in neighborhoods or regions that experience high poverty levels. Poverty forces many individuals to live below the accepted standards that a human being should live in, in society. The absence, or lack thereof, of money to cater for the needs of individuals and families forces many of these members of society into crime. It is no secret that a crime has the potential of making quick, easy money, but is also no secret that it comes at a price.

Many individuals weigh their possible success against their chances of getting caught and possible punishment, and the result is a no-brainer. Many individuals think about their families staying hungry and without the basic needs and the thought of that force many of them into crime as a means of survival. Although human beings are very different from animals, the world is not much different from a jungle, and only the fittest survive.

Many individuals have to look for a means of survival in order to guarantee that they will live to see another day (Zimring, Hawkins, 2009). The high unemployment rates do little to curtail the spread of crime among the population, seeing that many individuals do not have employment that keeps them away from crime. The correlation between high unemployment rates and crime rates is outright visible, and there is a need to provide employment to many idle youths who have the potential of venturing into crime.

The affection that many Americans have to material things goes back a long time in history. This affection is not restricted to Americans only, but to the entire global population. The desire to live in good houses, drive good cars, wear fashionable clothes and live an extravagant life has a great influence on the minds of many Americans. It is not surprising then that many young Americans rarely dream of career success, but instead, of being rich.

It is the dream of many, but very few have the opportunity to witness their dreams become reality in a legal and honest manner. The bulk of the population, which is forced to contend with settling for way less than they had hoped for, is forced to look for a way of making their dreams realities, as well (Longford, 1958). Many of these individuals engage in crime as a form of getting the money they are incapable of getting legally. The result is a crime-infested society that sees countless crimes in fraud, petty theft, and robbery with violence and even burglary. This pushes the crime rate in Florida, as well as the rest of America, a couple of notches higher than it was.

Deprived neighborhoods have some of the highest crime rates in Florida. The absence of social amenities and luxuries that other, more affluent, neighborhoods enjoy forces many youths into crime. The realization that these neighborhoods are unlikely to change into the neighborhoods they ought to be, leaves only one option for many young men and women-break out of the poverty chain and move from the neighborhood.

The fact that this is a difficult feat to achieve in the right and legal manner leaves many opting for crime (Reamer, 2005). The effect that these neighborhoods have on the crime rates is very significant. It instills within the youths, a desire to breakout of the poverty chain they live in at whatever cost. Some of these youths opt to develop their talents, especially in sports and athletics while some opt for crime.

The few who make it through the use of their talent successfully breakout of the poverty chain, but the many who fail to succeed end up frustrated and still in the poverty-ridden neighborhoods they desperately wanted to leave. Many of those who fail, end up as gangsters or mobsters in their towns and neighborhoods. The result is a big boost to the crime rates of the society in which they live.

The need to have equality in all the neighborhoods, in America, is a pressing one. It is instrumental in removing the feelings of discrimination and favoritism that many individuals in deprived neighborhoods feel. The alleviation of these feelings will play a great role in the fight against crime, seeing that individuals in these neighborhoods have one-less incentive to venture into crime as a ‘career’ than they did before these feelings are removed. This will help to reduce the crime rates in Florida and the United States of America (Burkhead, 2005).

The case in Florida is not much different from that of the United States in general. Other factors among them deprived neighborhoods, corruption, poverty and unemployment also play a key role in the propagation of crime not only in Florida, but also in America.


Hypothesis

The causes of crime in Florida are the same causes of crime in the United States of America. The states of America are all similar in their economic patterns. Although some states are richer than others, in every state there are the privileged citizens and the underprivileged citizens. The incentives to commit crime are similar in all states and so the causes of crime are the same in all the states of America.


Methodology

Research Design

The research into crime and its causes are aimed at understanding the causes of crime, not in one of the states of America, but in the whole of America. It seeks to unearth the underlying causes that push many youths into the world of crime. It seeks to look at the baseline causes of crime in all the states of America and determine if the causes are the same.

Target Population

This research was conducted to highlight the causes of crime. The primary audiences that it is targeting include the Federal government, the State government, schools and youth. These organs are the key players in the propagation of crime, and possibly the key players in curbing crime, as well. It aims to enlighten these players on their roles in propagation of crime, and suggest possible ways they can help in the fight against crime.

Variables

The variables in this study remain to be crime and the causes of crime. Crime is the dependent variable while the causes of crime are the independent variables. The nature of crimes that are committed in the United States of America is very diverse. However, the underlying causes of crime are all the same.

Sources of Data

Some of the data sources include journals, research papers, and books that highlight the causes of crime in the United States of America. Census reports from the government will also be used to highlight the population composition of crime prone areas. These reports will also identify the areas most affected by crime and the possible triggers of crime in these areas. Crime reports by security agencies such as Homeland Security and the Federal Bureau of Investigation (FBI) will be instrumental in understanding the causes of crime.

Data Collection Instruments and Procedures

Data collection for this study will depend on content analysis of the data sources used. The bulk of information that will be collected on crime rates and the causes of crime will most likely be in the form of reports; warranting the application on content analysis as the preferred method of research analysis. The causes of crime in the United States of America form the unit of analysis for this study.


Data Analysis and Interpretation

The causes of crime in the United States will be sought out following a baseline approach. The causes will first be grouped as sociological, psychological or biological. This will narrow the varying causes into three groups. These causes will then be analyzed to determine if some are sub-causes of others. This will produce the main causes of crime in the United States.

Findings

The research into the causes of crime has yielded a number of causes that have appeared in all the states of America. It is noteworthy that a majority of these causes are sociological, with very few being psychological.

Among the psychological causes of crime in the United States of America are poor judgment and psychological weakness. Many of the perpetrators of crimes are, more often than not, the handymen or women. The crime bosses do very little to soil their hands. The fact that many of these individuals give into pressures to join criminal gangs, is enough evidence of the apparent psychological weakness that many of these individuals suffer.

Their inability to stand their ground is responsible for their recruitment into crime. Many individuals that venture into crime do it as a means of survival, and rarely view their actions as crimes. Their actions are centered on their survival, and as long as they are not caught, they do not view their actions as criminal offences. This is the most common flaw that criminals share.

The sociological causes of crime are the main causes of crime. These causes can be further divided into causes within the institution of the family and causes within the society in general. The causes of crime that stem from the family include lack of love to children, generational cycles and poor parenting. The failure of parents to show their children love results in many children looking for avenues of overcoming the feelings of neglect they bear.

More often than not, the avenue is crime. In many families, crime also seems to be a ‘hereditary’ aspect of their lives. Many individuals, who have ever been convicted of or taken part in crimes, have at least one family member that has experienced the same thing. It is not possible to prove whether this is a genetically hereditary trait, however. The high rates of absentee fathers push many young men into crime. These fathers are absent either due to abandonment, neglect or serving jail terms. These factors contribute to crime by affecting the institution of the family.

The general aspects of society that are responsible for crime include corruption, media violence, deprived neighborhoods and poverty and unemployment. Corruption in government security agencies plays a primary role in criminal activity. The inability of security agencies to tackle crime effectively due to vices such as bribery and conflict of interest is a common feature in America (Tipp, Buggey, 2001). Many security officers receive bribes from criminals or have stakes in criminal activities such as drug trafficking.

This makes the fight against crime a difficult one. Many young children get their perceptions of violence from the media. From the deep affection of the American public towards crime-fighting superheroes to movies and videogames that depict violence, many youths itch to live out these fantasies. The result is a group of youth that will commit crimes as a result of the actions they witness.

Deprived neighborhoods are huge influences on the lives of many youths. The fact that the youths in these neighborhoods are incapable of accessing some basic social amenities leaves many of them frustrated. The inability of the government to provide these amenities is countered with a youth force ready to engage in crime to obtain that which the government has failed to provide. Another common feature of these neighborhoods is high unemployment and poverty rates. These only serve as incentives for the youths to commit crimes, seeing that many desperately desire to escape poverty.

Discussion

The decreased levels of crime over the past two decades are a blessing to the American society, albeit with a catch. This is because even though the crime rates in America have dropped, crime still remains a constant headache to the government and citizens alike. Many individuals continue suffering at the hands of a few individuals that have taken up crime as their ‘careers’. Insofar as punishing criminals is concerned, the government performs remarkably well.

However, addressing the underlying factors that are responsible for crime in society are waters the government is reluctant to sail. This is because the government is in charge of these issues, and admitting these problems would mean the government will be its own critic. Many of the sociological factors that are causes of crime can be dealt with squarely by the government, but stiff resistance from the government is a hurdle that still must be overcome.

The states of America are all identical when it comes to their criminal genes. Each state may have different crime rates and different age groups of criminals, but the underlying factors remain the same. The problem of child neglect is one that America continues to grapple with daily. The looming collapse of the institution of the family plays a keynote role in the perpetuation of crime in America. Many children are molded and raised up by society, rather than by their parents. In the event that the society is one rotten with countless vices, it does not take a rocket scientist to project the future of these children. The desire of parents to fulfill their dreams in their academics, careers and businesses, at the expense of their children, leaves many children to raising themselves. This is a role that any rotten society hardly passes out on taking. The lack of good role models in the family and society plays a central in encouraging crime within the youths of America.

The growing popularity of violence in society is also a leading factor in the propagation of crime in society. Many children grow up witnessing violence in their societies, and in different forms of media, to the point that it no longer surprises them. Many children now perceive violence as a part of society that they have to accept and possibly adopt. The result is a large number of innocent youths engaging in violent acts either to prove themselves as strong, or to mimic what the media fraternity has taught them to hold as true. Cases of assault continue to rise with each passing day, highlighting the precarious position society is in today.

The causes of crime in the United States of America include poverty unemployment, peer influence, psychological weaknesses, deprived neighborhoods, media violence, poor parenting, corruption and generational cycles. The sad reality remains that these problems cut across all 50 states of the USA, as a testament of the deep rooted nature of the causes of crime in America.

Conclusion

America finds herself at a very critical time in history. The causes of crime are no longer platonic, but instead have become traits that many in society today consider social norms. Crime now gets plenty of praise and is regarded as a means of survival by a significant number of youth. This highlights the danger society faces. Seeing that many of the causes of crime are deeply rooted in society, the fight against crime in the USA is now tougher than it previously was.

The society has reached a point of inflection, in which it must question its morals and social norms if the fight against crime must be won (Farrington, Welsh, 2007). The recent drops in crime rates do not count for anything; if all the government does is punish criminal offenders. Too much of anything is poison, and the government has focused on punishment for too long a time. The time has come for the government to consider a different approach to tackling crime. This new approach dictates addressing the causes of crime in the United States of America.

Recommendations

The government should consider introducing programs that teach the youth how to deal with peer pressure into the education curriculum as early as grade school.
The institution of the family must receive more attention from the government than it previously did. The government pays a lot of attention to the plight of children in the event of a divorce or death of parents. It is time that the government also pays attention to the upbringing that children in America receive.

Unemployment continues to be an impediment to the fight against crime. The government should create more jobs than it already has, to stop idle youth from engaging in criminal activity.

Equality is a central factor of American culture, seeing that it is also enshrined in the Declaration of Independence. This equality should not stop at people, and neighborhoods must also be made equal. The government should ensure that all neighborhoods in America have access to the same facilities and social amenities (Bohm, Walker, 2005).

The government should set up more stringent regulations governing the display of violence in different forms of media, among them the internet, television and videogames than the present ones. The government must address corruption in security agencies to help in the fight against crime.

References

Bohm, R. M., & Walker, J. T. (2005). Demystifying Crime and Criminal Justice. Oxford: Oxford Univ Press.
Burke, R. J., Tomlinson, E. C., & Cooper, C. L. (2011). Crime and corruption in organizations: Why it occurs and what to do about it. Farnham, Surrey: Ashgate.
Burkhead, M. D. (2005). The search for the causes of crime: A history of theory in criminology. Jefferson, NC: McFarland & Co.
Crutchfield, R. D. (2000). Crime. Thousand Oaks, Calif: Pine Forge Press.
Darrow, C. (2009). Crime: Its cause and treatment. New York: Kaplan.
Domin, N. (2013). 10 causes of crime.
Dressler, J. (2002). Encyclopedia of crime & justice: 2. New York: Macmillan Reference USA.
Farrington, D. P., & Welsh, B. (2007). Saving children from a life of crime: Early risk factors and effective interventions. Oxford: Oxford University Press.
Law.jrank.org (2013). Causes of Crime - Explaining Crime, Physical Abnormalities, Psychological Disorders, Social And Economic Factors, Broken Windows, Income And Education.
Longford, F. P. (1958). Causes of crime. London: Weidenfeld and Nicolson.
Reamer, F. G. (2005). Heinous crime: Cases, causes, and consequences. New York: Columbia University Press.
Riedel, M., & Welsh, W. N. (2011). Criminal violence: Pattern, causes, and prevention. New York: Oxford University Press.
Sellin, T., & Busey, P. R. (1942). Crime: The causes and extent of criminal behavior, its prevention and treatment. Washington, D.C: National council for the social studies, National Association of secondary-school principals, departments of the National education Association.
Thesocietypages.org (2013). Six Social Sources of the U.S. Crime Drop » The Society Pages.
Tipp, S. L., & Buggey, J. A. (1991). Causes of crime: Distinguishing between fact and opinion. San Diego, CA: Greenhaven Press.
Weatherburn, D. J., & New South Wales. (2001). What causes crime?. Sydney: NSW Bureau of Crime Statistics and Research.
Zimring, F. E. (2007). The great American crime decline. Oxford: Oxford University Press.
Zimring, F. E., & Hawkins, G. (1999). Crime Is Not the Problem: Lethal Violence in America. New York: Oxford University Press.

AN ESSAY ON CRIMES AND PUNISHMENTS.

CHAPTER I.: OF THE ORIGIN OF PUNISHMENTS.

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 Edition: current; Page: [16] 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 endeavour 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 punishment established against the infractors of the laws. I say that motives of this kind are necessary; because experience shews that, the multitude adopt no established rules 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 impression of present objects.

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CHAPTER II.: 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, intrusted 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 indeliable 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, Edition: current; Page: [18] 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 exempt 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 chuse 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 the original state of barbarity. All punishments, which exceed the necessity of Edition: current; Page: [19] preserving this bond, are in their nature unjust. We should be cautious how we associate with the word justice, an idea of anything 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 of another kind, and refers immediately to rewards and punishments in a life to come.

CHAPTER III.: 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 Edition: current; Page: [20] 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 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.

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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 IV.: 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 Edition: current; Page: [22] 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 chuses 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. Edition: current; Page: [23] 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 abused, or on his connections with the judge; and on all those 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 humour 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 Edition: current; Page: [24] 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 inconveniencies, 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 fact, 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 Edition: current; Page: [25] cruelty of a tyrant is not in proportion to his strength, but to the obstacles that oppose him.

These are the 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 inconveniencies 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.

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CHAPTER V.: 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 the ignorance and uncertainty of punishments.

Hence it follows, that without written laws, no society will ever acquire a fixed form of government, Edition: current; Page: [27] 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 shew 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 Edition: current; Page: [28] 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, in the name of the God of all mercy. 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 VI.: 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 be more powerful, in proportion as they are destructive of the public safety and happiness, and as the inducements to commit them are stronger. Therefore there Edition: current; Page: [29] ought to be a fixed proportion between crimes and punishments.

It is impossible to prevent entirely all the disorders which the passions of mankind cause in society. These disorders increase in proportion to the number of people, and the opposition of private interests. If we consult history, we shall find them increasing, in every state, with the extent of dominion. In political arithmetic, it is necessary to substitute a calculation of probabilities to mathematical exactness. That force which continually impels us to our own private interest, like gravity, acts incessantly, unless it meets with an obstacle to oppose it. The effects of this force are the confused series of human actions. Punishments, which I would call political obstacles, prevent the fatal effects of private interest, without destroying the impelling cause, which is that sensibility inseparable from man. The legislator acts, in this case, like a skilful architect, who endeavours to counteract the force of gravity by combining the circumstances which may contribute to the strength of his edifice.

The necessity of uniting in society being granted, together with the conventions, which the opposite interests of individuals must necessarily require, a scale of crimes may be formed, Edition: current; Page: [30] of which the first degree should consist of those which immediately tend to the dissolution of society, and the last, of the smallest possible injustice done to a private member of that society. Between these extremes will be comprehended, all actions contrary to the public good, which are called criminal, and which descend by insensible degrees, decreasing from the highest to the lowest. If mathematical calculation could be applied to the obscure and infinite combinations of human actions, there might be a corresponding scale of punishments, descending from the greatest to the least; but it will be sufficient that the wise legislator mark the principal divisions, without disturbing the order, lest to crimes of the first degree, be assigned punishments of the last. If there were an exact and universal scale of crimes and punishments, we should then have a common measure of the degree of liberty and slavery, humanity and cruelty, of different nations.

Any action, which is not comprehended in the above mentioned scale, will not be called a crime, or punished as such, except by those who have an interest in the denomination. The uncertainty of the extreme points of this scale, hath produced a system of morality which contradicts the laws; Edition: current; Page: [31] a multitude of laws that contradict each other; and many which expose the best men to the severest punishments, rendering the ideas of vice and virtue vague and fluctuating, and even their existence doubtful. Hence that fatal lethargy of political bodies, which terminates in their destruction.

Whoever reads, with a philosophic eye, the history of nations, and their laws, will generally find, that the ideas of virtue and vice, of a good or a bad citizen, change with the revolution of ages; not in proportion to the alteration of circumstances, and consequently conformable to the common good; but in proportion to the passions and errors by which the different lawgivers were successively influenced. He will frequently observe, that the passions and vices of one age, are the foundation of the morality of the following; that violent passion, the offspring of fanaticism and enthusiasm, being weakened by time, which reduces all the phenomena of the natural and moral world to an equality, become, by degrees, the prudence of the age, and an useful instrument in the hands of the powerful or artful politician. Hence the uncertainty of our notions of honour and virtue; an uncertainty which will ever remain, because they change with the revolutions of time, Edition: current; Page: [32] and names survive the things they originally signified; they change with the boundaries of states, which are often the same both in physical and moral geography.

Pleasure and pain are the only springs of action in beings endowed with sensibility. Even among the motives which incite men to acts of religion, the invisible Legislator has ordained rewards and punishments. From a partial distribution of these will arise that contradiction, so little observed, because so common; I mean, that of punishing by the laws the crimes which the laws have occasioned. If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter men from committing the greater, as often as it is attended with greater advantage.

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CHAPTER VII.: OF ESTIMATING THE DEGREE OF CRIMES.

The foregoing reflections authorise me to assert, that crimes are only to be measured by the injury done to society.

They err, therefore, who imagine that a crime is greater, or less, according to the intention of the person by whom it is committed; for this will depend on the actual impression of objects on the senses, and on the previous disposition of the mind; both which will vary in different persons, and even in the same person at different times, according to the succession of ideas, passions, and circumstances. Upon that system, it would be necessary to form, not only a particular code for every individual, but a new penal law for every crime. Men, often with the best intention, do the greatest injury to society, and with the worst, do it the most essential services.

Others have estimated crimes rather by the dignity of the person offended, than by their consequences to society. If this were the true standard, Edition: current; Page: [34] the smallest irreverence to the divine Being ought to be punished with infinitely more severity, than the assassination of a monarch.

In short, others have imagined, that the greatness of the sin should aggravate the crime. But the fallacy of this opinion will appear on the slightest consideration of the relations between man and man, and between God and man. The relations between man and man are relations of equality. Necessity alone hath produced, from the opposition of private passions and interests, the idea of public utility, which is the foundation of human justice. The other are relations of dependence, between an imperfect creature and his Creator, the most perfect of beings, who has reserved to himself the sole right of being both lawgiver and judge; for he alone can, without injustice, be, at the same time, both one and the other. If he hath decreed eternal punishments for those who disobey his will, shall an insect dare to put himself in the place of divine justice, to pretend to punish for the Almighty, who is himself all-sufficient; who cannot receive impressions of pleasure or pain, and who alone, of all other beings, acts without being acted upon? The degree of sin depends on the malignity of the heart, which is impenetrable to finite being. How Edition: current; Page: [35] then can the degree of sin serve as a standard to determine the degree of crimes? If that were admitted, men may punish when God pardons, and pardon when God condemns; and thus act in opposition to the Supreme Being.

CHAPTER VIII.: OF THE DIVISION OF CRIMES.

We have proved, then, that crimes are to be estimated by the injury done to society. This is one of those palpable truths, which, though evident to the meanest capacity, yet, by a combination of circumstances, are only known to a few thinking men in every nation, and in every age. But opinions, worthy only of the despotism of Asia, and passions armed with power and authority, have, generally by insensible and sometimes by violent impressions on the timid credulity of men, effaced those simple ideas which perhaps constituted the first philosophy of infant society. Happily the philosophy of the present enlightened Edition: current; Page: [36] age seems again to conduct us to the same principles, and with that degree of certainty which is obtained by a rational examination, and repeated experience.

A scrupulous adherence to order would require, that we should now examine and distinguish the different species of crimes, and the modes of punishment; but they are so variable in their nature, from the different circumstances of ages and countries, that the detail would be tiresome and endless. It will be sufficient for my purpose, to point out the most general principles, and the most common and dangerous errors, in order to undeceive, as well those who, from a mistaken zeal for liberty, would introduce anarchy and confusion, as those who pretend to reduce society in general to the regularity of a convent.

Some crimes are immediately destructive of society, or its representative; others attack the private security of the life, property or honour of individuals; and a third class consists of such actions as are contrary to the laws which relate to the general good of the community.

The first, which are of the highest degree, as they are most destructive to society, are called crimes of Leze-majesty.* Tyranny and ignorance, Edition: current; Page: [37] which have confounded the clearest terms and ideas, have given this appellation to crimes of a different nature, and consequently have established the same punishment for each; and on this occasion, as on a thousand others, men have been sacrificed victims to a word. Every crime, even of the most private nature, injures society; but every crime does not threaten its immediate destruction. Moral, as well as physical actions, have their sphere of activity differently circumscribed, like all the movements of nature, by time and space; it is therefore a sophistical interpretation, the common philosophy of slaves, that would confound the limits of things established by eternal truth.

To these succeed crimes which are destructive of the security of individuals. This security being the principal end of all society, and to which every citizen hath an undoubted right, it becomes indispensably necessary, that to these crimes the greatest of punishments should be assigned.

The opinion, that every member of society has a right to do anything that is not contrary to the laws, without fearing any other inconveniencies than those which are the natural consequences of the action itself, is a political dogma, which Edition: current; Page: [38] should be defended by the laws, inculcated by the magistrates, and believed by the people; a sacred dogma, without which there can be no lawful society; a just recompence for our sacrifice of that universal liberty of action, common to all sensible beings, and only limited by our natural powers. By this principle, our minds become free, active and vigorous; by this alone we are inspired with that virtue which knows no fear, so different from that pliant prudence worthy of those only who can bear a precarious existence.

Attempts, therefore, against the life and liberty of a citizen, are crimes of the highest nature. Under this head we comprehend not only assassinations and robberies committed by the populace, but by grandees and magistrates; whose example acts with more force, and at a greater distance, destroying the ideas of justice and duty among the subjects, and substituting that of the right of the strongest, equally dangerous to those who exercise it, and to those who suffer.

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CHAPTER IX.: OF HONOUR.

There is a remarkable difference between the civil laws, those jealous guardians of life and property, and the laws of, what is called, honour, which particularly respects the opinion of others.

Honour is a term which has been the foundation of many long and brilliant reasonings, without annexing to it any precise or fixed idea. How miserable is the condition of the human mind, to which the most distant and least essential matters, the revolution of the heavenly bodies, are more distinctly known, than the most interesting truths of morality, which are always confused and fluctuating, as they happen to be driven by the gales of passion, or received and transmitted by ignorance! But this will cease to appear strange, if it be considered, that as objects, when too near the eye, appear confused, so the too great vicinity of the ideas of morality, is the reason why the simple ideas, of which they are composed, are easily confounded; but which must be separated, before Edition: current; Page: [40] we can investigate the phenomena of human sensibility; and the intelligent observer of human nature will cease to be surprised, that so many ties, and such an apparatus of morality are necessary to the security and happiness of mankind.

Honour, then, is one of those complex ideas, which are an aggregate not only of simple ones, but of others so complicated, that, in their various modes of affecsing the human mind, they sometimes exclude part of the elements of which they are composed; retaining only some few of the most common, as many algebraic quantities admit one common divisor. To find this common divisor of the different ideas attached to the word honour, it will be necessary to go back to the original formation of society.

The first laws, and the first magistrates, owed their existence to the necessity of preventing the disorders, which the natural despotism of individuals would unavoidably produce. This was the object of the establishment of society, and was either in reality or in appearance, the principal design of all codes of laws, even the most pernicious. But the more intimate connections of men, and the progress of their knowledge, gave rise to an infinite number of necessities, and mutual acts of friendship, between the members Edition: current; Page: [41] of society. These necessities were not foreseen by the laws, and could not be satisfied by the actual power of each individual. At this epocha began to be established the despotism of opinion, as being the only means of obtaining those benefits which the law could not procure, and of removing those evils against which the laws were no security. It is opinion, that tormentor of the wise and the ignorant, that has exalted the appearance of virtue above virtue itself. Hence the esteem of men becomes not only useful, but necessary, to every one, to prevent his sinking below the common level. The ambitious man grasps at it, as being necessary to his designs; the vain man sues for it, as a testimony of his merit; the honest man demands it as his due; and the most men consider it as necessary to their existence.

Honour, being produced after the formation of society, could not be a part of the common deposite, and therefore, whilst we act under its influence, we return, for that instant, to a state of nature, and withdraw ourselves from the laws, which in this case are insufficient for our protection.

Hence it follows, that in extreme political liberty, and in absolute despotism, all ideas of honour disappear, or are confounded with others. In the first case, reputation becomes useless from Edition: current; Page: [42] the despotism of the laws; and in the second the despotism of one man, annulling civil existence, reduces the rest to a precarious and temporary personality. Honour, then, is one of the fundamental principles of those monarchies, which are a limited despotism, and in these, like revolutions in despotic states, it is a momentary return to a state of nature, and original equality.

CHAPTER X.: OF DUELLING.

From the necessity of the esteem of others, have arisen single combats, and they have been established by the anarchy of the laws. They are thought to have been unknown to the ancients; perhaps because they did not assemble in their temples, in their theatres, or with their friends, suspiciously armed with swords; and, perhaps, because single combats were a common spectacle, exhibited to the people by gladiators, who were slaves, and whom freemen disdained to imitate.

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In vain have the laws endeavoured to abolish this custom, by punishing the offenders with death. A man of honour, deprived of the esteem of others, foresees that he must be reduced, either to a solitary existence, insupportable to a social creature, or become the object of perpetual insult; considerations sufficient to overcome the fear of death.

What is the reason that duels are not so frequent among the common people, as amongst the great? Not only because they do not wear swords, but because to men of that class reputation is of less importance than it is to those of a higher rank, who commonly regard each other with distrust and jealousy.

It may not be without its use to repeat here, what has been mentioned by other writers, viz., that the best method of preventing this crime is to punish the aggressor, that is, the person who gave occasion to the duel, and to acquit him, who, without any fault on his side, is obliged to defend that, which is not sufficiently secured to him by the laws.

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CHAPTER XI.: OF CRIMES WHICH DISTURB THE PUBLIC TRANQUILLITY.

Another class of crimes are those which disturb the public tranquillity and the quiet of the citizens; such as tumults and riots in the public streets, which are intended for commerce and the passage of the inhabitants; the discourses of fanatics, which rouse the passions of the curious multitude, and gain strength from the number of their hearers, who, though deaf to calm and solid reasoning, are always affected by obscure and mysterious enthusiasm.

The illumination of the streets, during the night, at the public expense; guards stationed in different quarters of the city; the plain and moral discourses of religion, reserved for the silence and tranquillity of churches, and protected by authority; and harangues in support of the interest of the public, delivered only at the general meetings of the nation, in parliament, or where the sovereign resides; are all means to prevent the dangerous effects of the misguided passions of the people Edition: current; Page: [45] These should be the principal objects of the vigilance of a magistrate, and which the French call Police; but if this magistrate should act in an arbitrary manner, and not in conformity to the code of laws, which ought to be in the hand of every member of the community, he opens a door to tyranny, which always surrounds the confines of political liberty.

I do not know of any exception to this general axiom, that Every member of the society should know when he is criminal, and when innocent. If censors, and, in general, arbitrary magistrates, be necessary in any government, it proceeds from some fault in the constitution. The uncertainty of crimes hath sacrificed more victims to secret tyranny, than have ever suffered by public and solemn cruelty.

What are, in general, the proper punishments for crimes? Is the punishment of death, really useful, or necessary for the safety or good order of society? Are tortures and torments consistent with justice, or do they answer the end proposed by the laws? Which is the best method of preventing crimes? Are the same punishments equally useful at all times? What influence have they on manners? These problems should be solved with that geometrical precision which the mist of Edition: current; Page: [46] sophistry, the seduction of eloquence, and the timidity of doubt are unable to resist.

If I have no other merit than that of having first presented to my country, with a greater degree of evidence, what other nations have written, and are beginning to practise, I shall account myself fortunate; but if, by supporting the rights of mankind and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or of ignorance, equally fatal; his blessings, and tears of transport, will be a sufficient consolation to me for the contempt of all mankind.

CHAPTER XII.: OF THE INTENT OF PUNISHMENTS.

From the foregoing considerations it is evident, that the intent of punishments is not to torment a sensible being, nor to undo a crime already committed. Is it possible that torments, and useless cruelty, the instruments of furious fanaticism, or Edition: current; Page: [47] of impotency of tyrants, can be authorized by a political body? which, so far from being influenced by passion, should be the cool moderator of the passions of individuals. Can the groans of a tortured wretch recal the time past, or reverse the crime he has committed?

The end of punishment, therefore, is no other, than to prevent others from committing the like offence. Such punishments, therefore, and such a mode of inflicting them, ought to be chosen, as will make strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.

CHAPTER XIII.: OF THE CREDIBILITY OF WITNESSES.

To determine exactly the credibility of a witness, and the force of evidence, is an important point in every good legislation. Every man of common sense, that is, every one whose ideas have some connexion with each other, and whose sensations Edition: current; Page: [48] are conformable to those of other men, may be a witness; but the credibility of his evidence will be in proportion as he is interested in declaring or concealing the truth. Hence it appears, how frivolous is the reasoning of those, who reject the testimony of women on account of their weakness; how puerile it is, not to admit the evidence of those who are under sentence of death, because they are dead in law; and how irrational, to exclude persons branded with infamy: for in all these cases they ought to be credited, when they have no interest in giving false testimony.

The credibility of a witness, then, should only diminish in proportion to the hatred, friendship, or connexions subsisting between him and the delinquent. One witness is not sufficient; for whilst the accused denies what the other affirms, truth remains suspended, and the right that every one has to be believed innocent, turns the balance in his favour.

The credibility of a witness is the less, as the atrociousness of the crime is greater, from the improbability of its having been committed; as in cases of witchcraft, and acts of wanton cruelty. The writers on penal laws have adopted a contrary principle, viz., that the credibility of a witness is greater, as the crime is more atrocious. Behold Edition: current; Page: [49] their inhuman maxim, dictated by the most cruel imbecility. In atrocissimis, leviores conjecturæ sufficiunt, & licet judici jura transgredi. Let us translate this sentence, that mankind may see one of the many unreasonable principles to which they are ignorantly subject. In the most atrocious crimes the slightest conjectures are sufficient, and the judge is allowed to exceed the limits of the law. The absurd practices of legislators are often the effect of timidity, which is a principal source of the contradictions of mankind. The legislators, (or rather lawyers, whose opinions, when alive, were interested and venal, but which after their death become of decisive authority, and are sovereign arbiters of the lives and fortunes of men), terrified by the condemnation of some innocent person, have burdened the law with pompous and useless formalities, the scrupulous observance of which will place anarchical impunity on the throne of justice; at other times, perplexed by atrocious crimes of difficult proof, they imagined themselves under a necessity of superseding the very formalities established by themselves; and thus, at one time, with despotic impatience, and at another with feminine timidity, they transform their solemn judgments into a game of hazard.

But to return. In the case of witchcraft, it Edition: current; Page: [50] is much more probable, that a number of men should be deceived, than that any person should exercise a power which God hath refused to every created being. In like manner, in cases of wanton cruelty, the presumption is always against the accuser, without some motive of fear or hate. There are no spontaneous or superfluous sentiments in the heart of man; they are all the result of impressions on the senses.

The credibility of a witness may also be diminished, by his being a member of a private society, whose customs and principles of conduct are either not known, or are different from those of the public. Such a man has not only his own passions, but those of the society of which he is a member.

Finally, the credibility of a witness is null, when the question relates to the words of a criminal; for the tone of voice, the gesture, all that precedes, accompanies and follows the different ideas which men annex to the same words, may so alter and modify a man’s discourse, that it is almost impossible to repeat them precisely in the manner in which they were spoken. Besides, violent and uncommon actions, such as real crimes, leave a trace in the multitude of circumstances that attend them, and in their effects; but words Edition: current; Page: [51] remain only in the memory of the hearers, who are commonly negligent or prejudiced. It is infinitely easier then to found an accusation on the words, than on the actions of a man; for in these, the number of circumstances, urged against the accused, afford him variety of means of justification.

CHAPTER XIV.: OF EVIDENCE AND THE PROOFS OF A CRIME, AND OF THE FORM OF JUDGMENT.

The following general theorem is of great use in determining the certainty of fact. When the proofs of a crime are dependent on each other, that is, when the evidence of each witness, taken separately, proves nothing; or when all the proofs are dependent upon one, the number of proofs neither increase nor diminish the probability of the fact; for the force of the whole is no greater than the force of that on which they depend; and if this fails, they all fall to the ground. When the proofs are independent on each other, Edition: current; Page: [52] the probability of the fact increases in proportion to the number of proofs; for the falsehood of one does not diminish the veracity of another.

It may seem extraordinary that I speak of probability with regard to crimes, which, to deserve a punishment, must be certain. But this paradox will vanish, when it is considered, that, strictly speaking, moral certainty is only probability; but which is called a certainty, because every man in his senses assents to it from an habit produced by the necessity of acting, and which is anterior to all speculation. That certainty which is necessary to decide that the accused is guilty, is the very same which determines every man in the most important transactions of his life.

The proofs of a crime may be divided into two classes, perfect and imperfect. I call those perfect which exclude the possibility of innocence; imperfect, those which do not exclude this possibility. Of the first, one only is sufficient for condemnation; of the second, as many are required as form a perfect proof: that is to say, that though each of these, separately taken, does not exclude the possibility of innocence, it is nevertheless excluded by their union. It should be also observed, that the imperfect proofs of Edition: current; Page: [53] which the accused, if innocent, might clear himself, and does not, become perfect.

But it is much easier to feel this moral certainty of proofs, than to define it exactly. For this reason, I think it an excellent law which establishes assistants to the principal judge, and those chosen by lot; for that ignorance, which judges by its feelings, is less subject to error, than the knowledge of the laws which judges by opinion. Where the laws are clear and precise, the office of the judge is merely to ascertain the fact. If, in examining the proofs of a crime, acuteness and dexterity be required; if clearness and precision be necessary in summing up the result; to judge of the result itself, nothing is wanting but plain and ordinary good sense, a less fallacious guide than the knowledge of a judge accustomed to find guilty, and to reduce all things to an artificial system, borrowed from his studies. Happy the nation, where the knowledge of the law is not a science!

It is an admirable law which ordains, that every man shall be tried by his peers; for when life, liberty and fortune are in question, the sentiments, which a difference of rank and fortune inspire, should be silent; that superiority with which the fortunate look upon the unfortunate, and that Edition: current; Page: [54] envy with which the inferior regard their superiors, should have no influence. But when the crime is an offence against a fellow-subject, one half of the judges should be peers to the accused, and the other peers to the person offended. So that all private interest, which, in spite of ourselves, modifies the appearance of objects, even in the eyes of the most equitable, is counteracted, and nothing remains to turn aside the direction of truth and the laws. It is also just, that the accused should have the liberty of excluding a certain number of his judges. Where this liberty is enjoyed for a long time, without any instance to the contrary, the criminal seems to condemn himself.

All trials should be public, that opinion, which is the best, or, perhaps, the only cement of society, may curb the authority of the powerful, and the passions of the judge; and that the people may say, “We are protected by the laws; we are not slaves;” a sentiment which inspires courage, and which is the best tribute to a sovereign who knows his real interest. I shall not enter into particulars. There may be some persons who expect that I should say all that can be said upon this subject; to such, what I have already written must be unintelligible.

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CHAPTER XV.: OF SECRET ACCUSATIONS.

Secret accusations are a manifest abuse, but consecrated by custom in many nations, where, from the weakness of the government, they are necessary. This custom makes men false and treacherous. Whoever suspects another to be an informer, beholds in him an enemy; and, from thence, mankind are accustomed to disguise their real sentiments; and from the habit of concealing them from others, they at last even hide them from themselves. Unhappy are those, who have arrived at this point! Without any certain and fixed principles to guide them, they fluctuate in the vast sea of opinion, and are busied only in escaping the monsters which surround them; to those, the present is always embittered by the uncertainty of the future; deprived of the pleasures of tranquillity and security, some fleeting moments of happiness, scattered thinly through their wretched lives, console them for the misery of existing. Shall we, amongst such men, find Edition: current; Page: [56] intrepid soldiers to defend their king and country? Amongst such men shall we find incorruptible magistrates, who, with the spirit of freedom and patriotic eloquence, will support and explain the true interest of their sovereign; who, with the tributes, offer up at the throne the love and blessing of the people, and thus bestow on the palaces of the great, and the humble cottage, peace and security; and to the industrious a prospect of bettering their lot, that useful ferment and vital principle of states?

Who can defend himself from calumny, armed with that impenetrable shield of tyranny, secrecy? What a miserable government must that be, where the sovereign suspects an enemy in every subject, and, to secure the tranquillity of the public, is obliged to sacrifice the repose of every individual?

By what arguments is it pretended, that secret accusations may be justified? The public safety, say they, and the security and maintenance of the established form of government. But what a strange constitution is that, where the government, which hath in its favour not only power but opinion, still more efficacious, yet fears its own subjects? The indemnity of the informer. Do not the laws defend him sufficiently; and are there subjects more powerful than the laws? TheEdition: current; Page: [57]necessity of protecting the informer from infamy. When secret calumny is authorised, and punished only when public. The nature of the crime. If actions, indifferent in themselves, or even useful to the public, were called crimes, both the accusation and the trial could never be too secret. But can there be any crime, committed against the public, which ought not to be publicly punished? I respect all governments; and I speak not of any one in particular. Such may sometimes be the nature of circumstances, that when abuses are inherent in the constitution, it may be imagined, that to rectify them, would be to destroy the constitution itself. But were I to dictate new laws in a remote corner of the universe, the good of posterity, ever present to my mind, would hold back my trembling hand, and prevent me from authorising secret accusations.

Public accusations, says Montesquieu, are more conformable to the nature of a republic, where zeal for the public good is the principal passion of a citizen, than of a monarchy, in which, as this sentiment is very feeble, from the nature of the government, the best establishment is that of commissioners, who, in the name of the public, accuse the infractors of the laws. But in all governments as well in a republic as in a monarchy, Edition: current; Page: [58] the punishment, due to the crime of which one accuses another, ought to be inflicted on the informer.

CHAPTER XVI.: OF TORTURE.

The torture of a criminal, during the course of his trial, is a cruelty, consecrated by custom in most nations. It is used with an intent either to make him confess his crime, or explain some contradictions, into which he had been led during his examination; or discover his accomplices; or for some kind of metaphysical and incomprehensible purgation of infamy; or, finally, in order to discover other crimes, of which he is not accused, but of which he may be guilty.

No man can be judged a criminal until he be found guilty; nor can society take from him the public protection, until it have been proved that he has violated the conditions on which it was granted. What right, then, but that of power, can authorise the punishment of a citizen, so long Edition: current; Page: [59] as there remains any doubt of his guilt? The dilemma is frequent. Either he is guilty, or not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary. If he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent, whose crime has not been proved. Besides, it is confounding all relations, to expect that a man should be both the accuser and accused; and that pain should be the test of truth, as if truth resided in the muscles and fibres of a wretch in torture. By this method, the robust will escape, and the feeble be condemned. These are the inconveniencies of this pretended test of truth, worthy only of a cannibal; and which the Romans, in many respects barbarous, and whose savage virtue has been too much admired, reserved for the slaves alone.

What is the political intention of punishments? To terrify, and to be an example to others. Is this intention answered, by thus privately torturing the guilty and the innocent? It is doubtless of importance, that no crime should remain unpunished; but it is useless to make a public example of the author of a crime hid in darkness. A crime already committed, and for which there can be no remedy, can only be punished by a Edition: current; Page: [60] political society, with an intention that no hopes of impunity should induce others to commit the same. If it be true, that the number of those, who, from fear or virtue, respect the laws, is greater than of those by whom they are violated, the risk of torturing an innocent person is greater, as there is a greater probability that, cæteris paribus, an individual hath observed, than that he hath infringed the laws.

There is another ridiculous motive for torture, namely, to purge a man from infamy. Ought such an abuse to be tolerated in the eighteenth century? Can pain, which is a sensation, have any connection with a moral sentiment, a matter of opinion? Perhaps the rack may be considered as a refiner’s furnace.

It is not difficult to trace this senseless law to its origin; for an absurdity, adopted by a whole nation, must have some affinity with other ideas, established and respected by the same nation. This custom seems to be the offspring of religion, by which mankind, in all nations and in all ages, are so generally influenced. We are taught by our infallible church, that those stains of sin, contracted through human frailty, and which have not deserved the eternal anger of the Almighty, are to be purged away, in another life, by an Edition: current; Page: [61] incomprehensible fire. Now infamy is a stain, and if the punishments and fire of purgatory can take away all spiritual stains, why should not the pain of torture take away those of a civil nature? I imagine that the confession of a criminal, which in some tribunals is required, as being essential to his condemnation, has a similar origin, and has been taken from the mysterious tribunal of penitence, where the confession of sins is a necessary part of the sacrament. Thus have men abused the unerring light of revelation; and in the times of tractable ignorance, having no other, they naturally had recourse to it on every occasion, making the most remote and absurd applications. Moreover, infamy is a sentiment regulated neither by the laws nor by reason, but entirely by opinion. But torture renders the victim infamous, and therefore cannot take infamy away.

Another intention of torture is, to oblige the supposed criminal to reconcile the contradictions into which he may have fallen during his examination; as if the dread of punishment, the uncertainty of his fate, the solemnity of the court, the majesty of the judge, and the ignorance of the accused, were not abundantly sufficient to account for contradictions, which are so common to men even in a state of tranquillity; and which must Edition: current; Page: [62] necessarily be multiplied by the perturbation of the mind of a man, entirely engaged in the thought of saving himself from imminent danger.

This infamous test of truth is a remaining monument of that ancient and savage legislation, in which trials by fire, by boiling water, or the uncertainty of combats, were called judgments of God; as if the links of that eternal chain, whose beginning is in the breast of the first cause of all things, could never be disunited by the institutions of men. The only difference between torture, and trials by fire and boiling water, is, that the event of the first depends on the will of the accused; and of the second, on a fact entirely physical and external: but this difference is apparent only, not real. A man on the rack, in the convulsions of torture, has it as little in his power to declare the truth, as, in former times, to prevent, without fraud, the effect of fire or of boiling water.

Every act of the will is invariably in proportion to the force of the impression on our senses. The impression of pain, then, may increase to such a degree, that, occupying the mind entirely, it will compel the sufferer to use the shortest method of freeing himself from torment. His answer, therefore, will be an effect as necessary as that of fire or boiling water; and he will Edition: current; Page: [63] accuse himself of crimes of which he is innocent. So that the very means employed to distinguish the innocent from the guilty, will most effectually destroy all difference between them.

It would be superfluous to confirm these reflections by examples of innocent persons, who from the agony of torture have confessed themselves guilty: innumerable instances may be found in all nations, and in every age. How amazing, that mankind have always neglected to draw the natural conclusion! Lives there a man who, if he have carried his thoughts ever so little beyond the necessities of life, when he reflects on such cruelty, is not tempted to fly from society, and return to his natural state of independence?

The result of torture, then, is a matter of calcution, and depends on the constitution, which differs in every individual, and is in proportion to his strength and sensibility; so that to discover truth by this method, is a problem which may be better resolved by a mathematician than a judge, and may be thus stated: The force of the muscles, and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make him confess himself guilty of a given crime.

The examination of the accused is intended to Edition: current; Page: [64] find out the truth; but if this be discovered with so much difficulty, in the air, gesture, and countenance of a man at ease, how can it appear in a countenance distorted by the convulsions of torture. Every violent action destroys those small alterations in the features, which sometimes disclose the sentiments of the heart.

These truths were known to the Roman legislators, amongst whom, as I have already observed, slaves, only, who were not considered as citizens, were tortured. They are known to the English, a nation in which the progress of science, superiority in commerce, riches and power, its natural consequences, together with the numerous examples of virtue and courage, leave no doubt of the excellence of its laws. They have been acknowledged in Sweden, where torture has been abolished. They are known to one of the wisest monarchs in Europe, who, having seated philosophy on the throne, by his beneficent legislation, has made his subjects free, though dependent on the laws; the only freedom that reasonable men can desire in the present state of things. In short, torture has not been thought necessary in the laws of armies, composed chiefly of the dregs of mankind, where its use should seem most necessary. Strange phenomenon! that a set of men, hardened by Edition: current; Page: [65] slaughter, and familiar with blood, should teach humanity to the sons of peace.

It appears also, that these truths were known, though imperfectly, even to those by whom torture has been most frequently practised; for a confession made during torture is null, if it be not afterwards confirmed by an oath; which, if the criminal refuses, he is tortured again. Some civilians, and some nations, permit this infamous petitio principii to be only three times repeated, and others leave it to the discretion of the judge; and therefore of two men equally innocent or equally guilty, the most robust and resolute will be acquitted, and the weakest and most pusillanimous will be condemned, in consequence of the following excellent method of reasoning. I, the judge, must find some one guilty. Thou, who art a strong fellow, hast been able to resist the force of torment; therefore I acquit thee. Thou, being weaker, hath yielded to it; I therefore condemn thee. I am sensible, that the confession which was extorted from thee, has no weight: but if thou dost not confirm by oath what thou hast already confessed, I will have thee tormented again.

A very strange but necessary consequence of the use of torture, is that the case of the innocent is worse than that of the guilty. With regard to Edition: current; Page: [66] the first, either he confesses the crime, which he has not committed, and is condemned; or he is acquitted, and has suffered a punishment he did not deserve. On the contrary, the person who is really guilty has the most favourable side of the question; for if he supports the torture with firmness and resolution, he is acquitted, and has gained, having exchanged a greater punishment for a less.

The law by which torture is authorised, says, Men, be insensible to pain. Nature has indeed given you an irresistible self-love, and an unalienable right of self-preservation, but I create in you a contrary sentiment, an heroical hatred of yourselves. I command you to accuse yourselves, and to declare the truth, midst the tearing of your flesh and the dislocation of your bones.

Torture is used to discover, whether the criminal be guilty of other crimes besides those of which he is accused: which is equivalent to the following reasoning: Thou art guilty of one crime, therefore it is possible that thou mayst have committed a thousand others: but the affair being doubtful, I must try it by my criterion of truth. The laws order thee to be tormented, because thou art guilty, because thou mayst be guilty, and because I chuse thou shouldst be guilty.

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Torture is used to make the criminal discover his accomplices; but if it has been demonstrated that it is not a proper means of discovering truth, how can it serve to discover the accomplices, which is one of the truths required. Will not the man who accuses himself, yet more readily accuse others? Besides, is it just to torment one man for the crime of another? May not the accomplices be found out by the examination of the witnesses, or of the criminal; from the evidence, or from the nature of the crime itself; in short, by all the means that have been used to prove the guilt of the prisoner? The accomplices commonly fly when their comrade is taken. The uncertainty of their fate condemns them to perpetual exile, and frees society from the danger of further injury; whilst the punishment of the criminal, by deterring others, answers the purpose for which it was ordained.

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CHAPTER XVII.: OF PECUNIARY PUNISHMENTS.

There was a time when all punishments were pecuniary. The crimes of the subjects were the inheritance of the prince. An injury done to society was a favour to the crown; and the sovereign and magistrates, those guardians of the public security, were interested in the violation of the laws. Crimes were tried, at that time, in a court of Exchequer, and the cause became a civil suit between the person accused and the crown. The magistrate then had other powers than were necessary for the public welfare, and the criminal suffered other punishments than the necessity of example required. The judge was rather a collector for the crown, an agent for the treasury, than a protector and minister of the laws. But, according to this system, for a man to confess himself guilty, was to acknowledge himself a debtor to the crown; which was, and is at present (the effects continuing after the causes have ceased) the intent of all criminal causes. Thus, the criminal Edition: current; Page: [69] who refuses to confess his crime, though convicted by the most undoubted proofs, will suffer a less punishment than if he had confessed; and he will not be put to the torture to oblige him to confess other crimes which he might have committed, as he has not confessed the principal. But the confession being once obtained, the judge becomes master of his body, and torments him with a studied formality, in order to squeeze out of him all the profit possible. Confession, then, is allowed to be a convincing proof, especially when obtained by the force of torture; at the same time that an extra-judicial confession, when a man is at case and under no apprehension, is not sufficient for his condemnation.

All inquiries, which may serve to clear up the fact, but which may weaken the pretensions of the crown, are excluded. It was not from compassion to the criminal, or from considerations of humanity, that torments were sometimes spared, but out of fear of losing those rights which at present appear chimerical and inconceivable. The judge becomes an enemy to the accused, to a wretch, a prey to the horrors of a dungeon, to torture, to death, and an uncertain futurity, more terrible than all; he inquires not into the truth of the fact, but the nature of the crime; he lays Edition: current; Page: [70]

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