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CORNELL UNIVERSITY LIBRARY 
 
THEORY 
 
 OF 
 
 LEGISLATION; 
 
 BY 
 
 JEEEMY BENTHAM. 
 
 TRANSLATED FROM THK FRENCH OF ETIENNE DrMONT, 
 
 BY 
 
 E. HILDRETH. 
 
 LONDON: 
 TRtJBNER & CO., 57 & §9, LUDGATE HILL. 
 
 MDCCCLXXVr. 
 
THEORY 
 
 LEGISLATION; 
 
 BY 
 
 JEREMY BBNTHAM. 
 
 TEANSLATED FEOM THE PIIENCH OF ETIENKE DTJUONT, 
 
 E. HILBRETH. 
 
 LONDON: 
 TRtfBNER & CO., 57 & §9, LUDGATE HILL. 
 
 . MDCCCLXXVI. 
 
BbNDON: ■ 
 
 WEETHEIMfiE, LEA AND CO., PRINTEHS, 
 
 CIRCUS PLACE, FINSBUKT CIRCUS. 
 
TEANSLATOE'S PEEFACE 
 
 Whatevee may be thouglit of the Frinciple of Utility, when 
 considered as the foundation of morals, no one now-a-days will 
 undertake to deny that it is the only safe rule of legislation. 
 
 To establish and illustrate this proposition, and to show how 
 it ought to he, and might he carried into practice, was the aim 
 and end of Bentham's life and writings. 
 
 Bacon derives his fame from the fact that he was the first who 
 fully appreciated and formally laid down the proposition, now 
 familiar to everybody, that experiment and observation are the 
 only solid bases of the physical sciences. In the moral sciences,, 
 and especially in legislation, the principle of utility is the only 
 certain guide ; and, in the estimation of an impartial posterity,, 
 Bentham will rank with Bacon, as an original genius of the first 
 order. 
 
 Already, upon the continent of Europe, his writings have at- 
 tained the highest reputation. In England and America, though 
 frequently spoken of, they are little read ; though they are often 
 criticised, or sneered at, by persons who have never seen the&, 
 and who are totally ignorant of their contents. This circum- 
 stance is easily explained. Bentham was born and bred in Eng- 
 land, and spent all his life there ; but his works, in any compact 
 
 a a 
 
IV PEEPACE. 
 
 and collected form, exist only in rrench. He published many 
 treatises in Englisli ; but for the generality of readers tbey have 
 very few attractions. He -was not skilful in the art of composi- 
 tion ; he did not possess the gift of eloquence. Though endowed 
 ■with a great genius for investigation, he lacked the talent of com- 
 municating his ideas. During a long life, devoted solely and 
 assiduously to the study of jurisprudence, besides his occasional 
 publications, he produced an immense mass of manuscripts, con- 
 taining a fund of most valuable ideas, but unshaped, unarranged, 
 and in a state quite unfit for publication. Fortunately for the 
 cause of science, these materials were not left to perish ; an inter- 
 preter, a compiler, a spokesman was found, every way worthy of 
 the task he assumed. 
 
 / Dumont, a citizen of Geneva, whom political troubles had 
 driven from his own country, after a residence of some years at 
 St Petersburg, where he gained a high reputation as a preacher 
 of the Eeformed Church, came to London under the patronage of 
 the Lansdowne family, and there made Bentham's acquaintance. 
 He became his friend and disciple, was permitted to examine and 
 to study his manuscript treatises; and, having discovered the 
 value of this hidden treasure, he solicited the task of arranging, 
 •condensing, filling out, compiling, and translating into the French 
 language. 
 
 ' But Dumont's relation to the writings of Bentham will best 
 *be explained in his own words. "If, in labouring upon these 
 manuscripts," he says,* " I had been able to confine myself to a 
 •mere translation, I should be more tranquil as to my success ; 
 'but I am not in a position so fit to inspire me with confidence. 
 I owe it to the public not to conceal my share in this compila- 
 tion ; I owe it to the author to declare, that he only yielded to 
 the solicitations of friendship, and that he often imwillingly 
 
 - Prelimiiiary Discourae to the first edition of the Treatise on Zegis- 
 
gave up to me works unflaislied, and soiDetimes materials un- 
 formed. 
 
 " In giving, a general idea of my part in this undertaking, I 
 begin with a declaration, which ought to shield me from undeserved 
 blame, as well as from the distress of unmerited praise. I declare 
 that I have no share, no claim of association, in the composition 
 of these works. They belong entirely to the author, and to him 
 alone. The more I esteem them, the more desirous am I to 
 disavow an honour which would be a usurpation, as contrary to 
 the faith of friendship as it is repugnant to my personal charac- 
 ter. This declaration, which I owe to myself, would, I know, 
 be superfluous if all readers were philosophers. Such will them- 
 selves discover, amid all the divetsity of these writio^s, the 
 impress of one mind, — a unity of plan, an original genius, as 
 analytic and profound in the general design as in the execution 
 of the parts. 
 
 "My labour, subaltern in its kind, has been limited to details. 
 It was necessary to make a choice among various observations 
 upon the same subject ; to suppress repetitions ; to throw light 
 upon obscurities; to bring together all that appertained to the 
 same subject ; and to fill up those gaps which, in the hurry of 
 composition, the author had left. I have had more to retrench 
 than to add; more to abridge than to expand. The mass|pf 
 manuscripts put into my hands was considerable, I have had 
 much to do in attaining correctness, and preserving uniformity of 
 style; little or nothing as respects the fundamental ideas. A 
 profusion of riches left me only the eare of economy. As 
 manager of this great fortune I have spared no pains to realize 
 it, and put it into circulation. 
 
 " The changes I have made have varied with the manuscripts. 
 When I have found many treatises relative to the same subject, 
 but composed at different times and with different views, it has 
 been necessary to reconcile them, and to incorporate them 
 
VI PEEPACE. 
 
 together, so as to form a perfect whole. The author perhaps 
 had thrown aside some occasional composition, which now would 
 not be interesting., or even intelligible. Unwilling that the 
 whole should perish, I have stripped it, like an abandoned house, 
 of everything worth preserving. When he has delivered him- 
 self up to abstractions too profound, to nietaphysics, I do not say 
 too subtle, but too dry, I have endeavoured to give more develop- 
 ment to his ideas, to illustrate them by applications, by facts, by 
 examples ; and I have allowed myself to scatter, with discretion, 
 some ornaments. I have been obliged to write out some entire 
 chapters, but always after hints and notes of the author; and the 
 difficulty of the ,task would have sufficed to bring me back to a 
 modest estimation of myself, if at any time I had been exposed 
 to the temptation of thinking otherwise. 
 
 "The author's Introduotion to the Frinciples of Morals and 
 Legislation, regarded by a small number of enlightened judges as 
 one of those original productions which form an epoch and a 
 revolution in science, in spite of its philosophical merit, and 
 perhaps on account of that merit, produced no sensation, and 
 remained almost unknown to the public, — though in England, 
 more than elsewhere, a useful book may come into notice, though 
 it does not happen to be easy and agreeable. In using many 
 chapters of that work to form the General Principles of Legisla-. 
 tion, I have endeavoured to avoid what prevented its success, — 
 forms too scientific, sub-divisions too much multiplied, analysis 
 too abstract. I have translated not the words, but the ideas ; I 
 have sometimes made an abridgment, and at others a commentary, 
 I have been guided by the advice and the hints of the author, 
 contained in a preface, written many years after the work itself ; 
 and I have found among his papers aU the additions of any con- 
 sequence. 
 
 " Upon considering how much this enterprise, which I 
 thought to confine to two or three volumes, has extended by 
 
degrees, and wliat a vast career I have run througli,* I regret 
 that the lahour had not fallen into abler hands; yet I am encou- 
 raged to applaud my perseverance, convinced as I am that other- 
 wise these manuscripts vsrould for a long time have remained 
 buried in their own bulk, and that the author, always rushing 
 forward, would never have found the leisure nor the courage to 
 give himself up to the ungrateful labour of a general revision. 
 
 " This ardour to produce, and this indifference to publication ; 
 this perseverance in the severest labours ; and this disposition to 
 abandon his work at the moment of completion, presents a sin- 
 gularity which needs to be explained. 
 
 " As soon as Bentham had discovered the great divisions, the 
 great classifications of laws, he embraced legislation as a whole, 
 and formed the vast project of treating it in all its parts. He 
 considered it not as composed of detached works, but as forming 
 a siagle work. He had before his eyes the general chart of the 
 science, and after that model he framed particular charts of aU 
 its departments-. Hence it follows that the most striking pecu- 
 liarity of his writings is their perfect correspondence. I have 
 found the earlier ones full of references to works which were 
 merely projected, but of which the divisions, the forms, the prin* 
 cipal ideas, existed already in separate tables. It is thus that, 
 having subjected all his materials to a general plan, each branch 
 of legislation occupies its appropriate place, aud none is to be 
 found under two divisions. This order necessarily supposes an 
 author who has for a long time considered his subject in aU its 
 relations ; who masters the whole of it ; and who is not in- 
 fluenced by a puerile impatience for renown. 
 
 " I have seen him suspend a work almost finished, and com- 
 pose a new one, only to assure himself of the truth of a single 
 proposition which seemed to lie doubtful. A problem in finance 
 
 * TMg refers to other worka of Bentham, annonnoed. by Diunont as 
 ready for publication. 
 
PKEFACE. 
 
 has carried Mm through, the whole of political economy. Some 
 questions of procedure obliged him to interrupt his principal 
 ■work till he had treated of judicial organization. This prepara- 
 tory labour, this labour in the mines, is immense. ISTo one can 
 form an idea of it except by seeing the manuscripts, the cata- 
 logues, the synoptical tables in which it is contained. 
 
 " But I am not writing a panegyric. It must be confessed that 
 the care of arrangement and correction has few attractions for the 
 genius of Bentham. While pushed on by a creative force he 
 feels only the pleasure of composition; when it becomes necessary 
 to shape, to put in order, to finish, he experiences nothing but 
 fatigue. If a work is interrupted the evil becomes irreparable ; 
 the charm vanishes; disgust succeeds; and passion, once quenched, 
 can only be rekindled by a new object. 
 
 " This same turn of mind has prevented him from taking any 
 part in the compilations which I now present to the public. It 
 was rarely that I was able to obtain any explanations, or even 
 that aid of which I was absolutely in need. It cost him too much 
 to suspend the actual course of his ideas, and to return again 
 upon old tracks. 
 
 "But it is, perhaps, to this kind of difficulty that I owe my 
 perseverance. If it had been my business only to translate, I 
 should soon have grown wearied of a task so uniform yet so diffi- 
 cult; while the labour of a free compilation flatters by a kind of 
 Ulusion, which lasts as long as it is useful, and vanishes when 
 the work is done." 
 
 Among Dumont's first publications from the manuscripts of 
 Bentham, was the treatise of which these volumes contain a trans- 
 lation. He afterwards brought out several other works, com- 
 piled in the same way, and from the same sources ; and it is only 
 in these compilations that we find anything like a clear and 
 complete development of the ideas of Bentham, or a fall exposi- 
 tion of his system of legislation. 
 
PEEFACE. IX 
 
 Public attention in America is every day more and more at- 
 tracted to the subject of Legal Eeform ; and the translator flatters 
 himself that he wiU. have performed a useful and acceptable ser- 
 vice, in restoring to its native EngKsh tongue the follovfing 
 treatise. 
 • It includes a vast field, never before surveyed upon any regu- 
 lar plan, and least of all according to such principles as Bentham 
 has laid down. In the application of those principles he has, 
 doubtless, made some mistakes ; for mistakes are of necessity inci- 
 dent to a first attempt, But he has himself furnished us with 
 the means of detecting those mistakes and of correcting them. 
 He asks us to receive nothing on his mere authority. He sub- 
 jects everything to the test of General Utility. 
 
CONTENTS. 
 
 Fi.GB 
 TfiA^fSIATOE's PEErACE ill 
 
 PEINCIPLES OP LEGISLATIOIiT. 
 
 Chapter I. The Principle of Utility . . ' . . . . 1 
 
 — n. The Ascetic Principle ....... 4 
 
 — III. The Arbitrary Principle; or, the Principle of Sym- 
 
 pathy and Antipathy 6 
 
 — IV. Operation of these Prinoiples upon Legislation . . 13 
 
 — T. Further Explanations. Objections Answered . . 15 
 
 — VI. The diflferent kinds of Pleasures and Pains . . . 20 
 
 — VII. Pains and Pleasures considered as Sanctions . . 27 
 
 — VIII. The Measure of Pleasures and Pains . . . . 31 
 
 — IX. Circumstances which Affect Sensibility ... 33 
 
 — X. Analysis of Political Good and Evil. Their Diffusion 
 
 through Society 48 
 
 — XI. Reasons for Erecting Certain Acts into Offences . . 54 
 
 — XII. The Limits which Separate Morals from Legislation . 60 
 
 — Xin. Ealse Methods of Eeasoning on the Subject of Legis- 
 
 lation ......... 66 
 
 PRINCIPL OE THE CIVIL CODE. 
 
 Introduction 88 
 
 ^art jFtrst. 
 
 Objects op the Civil Law. 
 
 Chapteb I. Eights and Obligations 93 
 
 — II. Ends of Civil Law 96 
 
XU CONTESfTS. 
 
 Chaptee III. Relations between these Ends 97 
 
 — ly. Laws relatively to Subsistence ..... 100 
 
 — V. Laws relatively to Abundance .... 101 
 
 — Yl. Pathological Propositions upon which the Good of 
 
 Equality is Pounded 102 
 
 — VII. Of Security WO 
 
 — Yin. Of Property HI 
 
 — IX. Answer to an Objection . . . . • .113 
 
 — X. Analysis of the Evils which result from Attacks upon 
 
 Property H^ 
 
 — XI. Opposition between Security and Equality . .119 
 
 — XII. Means of Uniting Security and Equality . . . 123 
 
 — XIII. Sacrifice of Security to Security .... 124 
 
 — XIY. Of some Cases liable to bo Contested . . . . 126 
 
 — XY. Examples of Attacks upon Security .... 137 
 
 — XYI. Forced Exchanges 14G 
 
 — XYII. Power of the Laws over Expectation . . . 148 
 
 Distribution or Propekty. 
 
 Chapter I. Titles which constitute Property ..... 158 
 
 — XL Title by Consent 168 
 
 — III. Title by Succession 177 
 
 — lY. Testaments ,183 
 
 — Y. .Eights to Services. Methods of acquiring them . . 187 
 
 — YI. Community of Goods, or Tenancy in Common . . . 1 94 
 
 — VII. Distribution of Loss 197 
 
 Eiguts and Obligations attached to seveual Private Conditions. 
 
 Introduction . 19& 
 
 Chaptee I. Master and Servant 1 99 
 
 — II. Of Slavery 201 
 
 — III. Guardian and Ward 209 
 
 — lY. Father and ChUd 213 
 
 — Y. OfMarriage 215 
 
CONIEIfTS. XUl 
 
 PRINCIPLES OE THE PENAL CODE, 
 ^nrt jpirst. 
 
 Of OrpENOEs. page 
 
 Introduction 239 
 
 CiiiPTERl. Classification of Offences 239 
 
 — II. Sub- division of Offences 241 
 
 — III. Some other Divisions 244 
 
 — IV. Evil of the Second Order, or Alarm .... 246 
 
 — V. Evil of the First Order — Its Influence on Alarm . . 247 
 
 — TI. The Influence of Intention on Alarm . ' . . 249 
 
 — VII. Position of the Delinquent — Its effect on Alarm . . 251 
 
 — VIII. The Influence of Motives on Alarm .... 252 
 
 — IX. Facility or Difficulty of Preventing Offences — Their 
 
 Influence on Alarm ....... 256 
 
 — X. Effect produced on Alarm by the greater or less 
 
 Facility of Secrecy 257 
 
 — XI. Effect of the Delinquent's Character on Alarm . . 258 
 
 — XII. Cases in which there is no Alarm 264 
 
 — XIII. Cases in Which there is no Greater Danger than 
 
 Alarm . '. 265 
 
 — XIV. Grounds of Justification 266 
 
 Political Eemedies against the Evil of Offences. 
 
 CiiAPTEE I. Subject of this Part 271 
 
 — II. Direct Means of Preventing Offences . . . . 272 
 
 — III. Chronic Offences 275 
 
 IV. Supressive Eemedies for Chronic Offences . . . 277 
 
 — V. Observations on Martial Law 279 
 
 — VI. Nature of Satisfaction 280 
 
 — VII. Eeasons on which the Necessity of Satisfaction is 
 
 founded 281 
 
 — VIII. The different Kinds of Satisfaction . . . . 282 
 
 — IX. The Quantity of Satisfaction 283 
 
 — X. The Certainty of Satisfaction 284 
 
 — XI. Pecuniary Satisfaction 286 
 
XIV CONXBKIS. 
 
 PAG3 
 
 ChA-PTEB XII. Restitution in Kature 288 
 
 — XIII. Attestatory Satisfaction ...... 291 
 
 — XrV. Honorary Satisfaction 294 
 
 — XT. Remedies for Offences against Honour . . . 305 
 
 — XVI. Vindictive Satisfaction 309 
 
 — XVII. Substitutive Satisfaction ; or, Satisfaction at the 
 
 Expense of a Third Person .... 310 
 
 — XVIII. Subsidiary Satisfaction at the Public Ejcpense . . 317 
 
 Or Punishments. 
 
 Chaptee I. Punishments which ought not to be inflicted . . 332 
 
 — II. Proportion between Offences and Punishments . . 324 
 
 — III. Of Prescription as regards Punishments . . . 327 
 ■I— IV. Mistaken Punishments, or Punishments misapplied . 329 
 
 — V. Of requiring Security for Good Behaviour . . 333 
 
 — VI. The Choice of Punishments ..... 336 
 
 — VII. The Kinds of Punishments 341 
 
 — VIII. Justification of Variety in Punisliments . . . 343 
 
 — IX. Examination of some Common Punishments . . 347 
 
 — X. The Power of Pardoning 355 
 
 ^art Jpourtf). 
 
 Indikect Means or Pheventings Oejences. 
 
 Introduction 35S 
 
 Chaptek ' I. Means of taMng away the Physical Power to do Harm 362 
 
 — II. Prohibition of acquiring Knowledge which may be 
 
 turned to a Bad Purpose ..... 366 
 
 — III. Indirect Means of preventing the Wish to commit 
 
 Offences 371 
 
 — IV. To change the Course of Dangerous Desires, and to 
 
 direct the Inclinations towards Amusements con- 
 formable to the Public Interest .... 373 
 
 — V. To satisfy certain Desires without Injury, or with the 
 
 least possible Injury 380 
 
 — VI. To avoid furnishing Encouragement to Crimfi . „ S93 
 
CONIENTS. XV 
 
 PAGB 
 
 Chameu VII. To increase EesponBibility in proportion as Tempta- 
 tion increases 396 , 
 
 — Tin. To diminish the Sensibility to Temptation . . 397 
 
 — IX. To strenghen the Impression, of Punishments upon 
 
 the Imagination . • 399 
 
 — S. To facilitate Knowledge of the Pact of an Offence . 402 
 
 — XI. To prevent Offences by giving to many Persons an 
 
 Interest to prevent them . .... 415 
 
 — XII. To facilitate the Means of recognising and finding 
 
 Individuals 416 
 
 — XIII. To increase the DifBonlty of Escape . . .419 
 
 — XrV. To diminish the Uncertainty of Prosecutions and 
 
 Punishments ........ 419 , 
 
 — XV. To prohibit Accessory Offences, in order to prevent 
 
 the Principal Offence 423 
 
 — XVI. Cultivation of Benevolence 427 
 
 — XVII. Employment of the Motive of Honour, or the Popu- 
 
 lar Sanction 432 
 
 — XVIII. Employment of the Jilotive of EeKgion . . . 434 
 
 — XIX. Use to be made of the Power of Instruction . . 442 
 
 — XX. Use to be made of the Power of Education . . 445 
 
 — XXI. General Precautions against Abuses of Authority . 449 
 
 — XXII. Means of diminishing the Bad Effects of Offences 
 
 General Result and Conclusion .... 467 
 
PRINCIPLES OF LEGISLATION. 
 
 CHAPTEK I. 
 The Principle of Utility. 
 
 \ 
 
 The public good ought to be the object of the legislator; generai 
 
 iriiLTir ought to be the foundation of his reasonings. To know 
 the tru e good of the community is what constitutes the science of 
 legislation ; Qie art consists in finding the means to realizelfiat 
 good. 
 
 The principle of utility, vaguely announced, is seldom contra- 
 dicted ; it is even looked upon as a sort of common-place in politics 
 and morals. But this almost universal assent is only apparent. 
 The same ideas are not attached tothis'piinciple ; the same value 
 is not given to it^ no uniform and logical manner of reasoning 
 results from it. 
 
 To give it aU the efficacy which it ought to have, that is, to 
 make it the foundation of a system of reasonings, three conditions 
 are necessary. , 
 
 First, — To attach clear and precise ideas t o the word uti lity, 
 exactly the same with aU who employ it. 
 
 Second, — To establish the unity and the sovereignty of this 
 principle, by rigorously excluding every other. It is nothing to 
 subscribe to it in general; it must be admitted without any 
 exception. 
 
 Third, ^To find the processes of a moral arithmetic by which 
 uniform results may be arrived at. 
 
 B 
 
2 PBINCIPLES OF lEOISIATIOlf. 
 
 The causes of dissent from the doctrine of utility may all bo 
 referred to two false principles , which exercise an influence, some- 
 times open and sometimes secret, upon the judgments of men. 
 If these can be pointed out and excluded, the true principle will 
 remain in purity and strength. 
 
 These three principles are like three roads which often cross 
 each ot'je?, but of which only one leads. to the wished-&r desti- 
 nation. The traveller turns often from one into another, and loses 
 in these wanderings more than half his time and strength. The 
 true route is however the easiest ; it has mile-stones which cannot 
 be shifted, it has inscriptions, in a universal language, which can- 
 not be effaced ; while the two false routes have only contradic- 
 tory directions in enigmatical characters. But without abusing 
 the language of allegory, let us seek to give a clear idea of the 
 ■true principle, and of its two adversaries. 
 
 . .Nature has placed, man imder .t]).e empire of pleasure and of 
 pain^ "W e owe to them aU our ideas; we refer to them aU our 
 judgments, and all the determinations of our life. He who pre- 
 tends to withdraw himself from this subjection knows not what he 
 says. His onLy,object is to seek pleasure and to shun pain, even 
 ' -at, tlje very, instant .that he rejects the greatest pleasures or 
 ., jembraces, pains the. most acute. ...These eternal and irresistible 
 „ sentiments .ought; to bp the great study of the jnoralist.and the 
 ,, legislatoEi The princi ple of u tiKty subjects everything to these 
 two niotives. 
 
 Z7!!i/»<y is an- abstract term. It expres ses the.pr operty or ten- 
 dency of a thisg-to. prevent some evil or to procure some' goodT 
 Ikil is pain,_or the cause of pain. Oood iB_pkasure7oFtEe'cause' 
 .. of pleasure. That which is^ conformable to the utility, or "fhe^ 
 interest pf an indivi dual , is -sfrhat tends to augment tl^e total sum 
 , of his happiness. That which is conformable to the utility, orthe 
 interest of a community,, is what tends to augment, the total sum 
 of the happiness,X)f the, individuals, that compose it. . , 
 
 A principle is a first idea, which is made the beginning or 
 basis of a system of reasonings. To illustrate it by a sensible 
 image, it is a fixed point to which the first link of a chain is 
 
. PBINCIPtES OP LEGISLAIIOlT. 8 
 
 J i JRttacliedi . ■ Such aiprinciple nrnsibe clearly evident ;— to illustrate 
 and to;Bxplain it must secure its acknowled^erlt. Suohaie'ttie 
 axioms of mathematics ; they are not proved directly-; it is enough 
 to show that they cannot be rejected without falling into 
 absurdity. 
 
 The logic of utility consists in setting out, in all the operations 
 of the judgment, fromthe calculatibn or comparison of pains and 
 pleasures, and in not allowing the interference of any other idea. 
 ™ am a, partisan of the principle of utility when I raeasure my 
 approbation or disapprobation of a public or private d6t by its 
 tendency to produce pleasure or pain ; when I' employ the words 
 jiist, un^t, morali immoral, good, lad, simply as collective terms 
 ■including the ideas of certain pains or ^pleasures ; it being always 
 understood that I use the words pain and pUasWe in their ordi - 
 nary signification-, without inventing any arbitrary definition for 
 the sake of excluding certain pleasures or denying the existekce 
 of certain pains. In this matter we want no refinement, no 
 ' metaphysics. It is not necessary to consult tlato, nor Aristotle. 
 Pain a.ndpleasure_aie what everybody feels tojbesuchr— the pea- 
 sant and the prince, the unlearned as *eU as the philosopher.' ' 
 
 He who adopts the principle of Utility, esteems virtue to be a 
 good only on account of the pleasures which result from it ; he 
 regards ticB as an- evil only because of the pains which it -pro- 
 duces. Moraljgdod is g<)od only by its teitdencyto produce phy- 
 sical good. Moral evil is evil o^ily by its tendency to produce 
 physical-evil ; but when I say physical, I mean the pains and 
 pleasures of the soul as well as the pains and pleasures of sense. 
 I have in view man, such as he is, in his actual constitutioni 
 
 If the partisan of the principle of utility finds in the common 
 list of virtues an action from Which there results more pain than 
 pleasure, he does ntft hesitate to regard that pretended virtue as 
 a vice; he will not stifier himself to be inlposed upon by'the 
 general error ; he will not lightly believe in the policy 6f employ- 
 ing false virtues tp majntaiii the true. •■'■•■■:,■ 
 
 If he finds in the common list of ofifences some indifferent 
 action, some innocent pleasure, he will not hesitate to ftansport 
 
 B 2 
 
PMKCIPLES OF LEGISLATION. 
 
 this pretended offence into the class of lawful actions ; he will 
 pity the pretended criminals, and will reserve his indignation for 
 their persecutors. 
 
 CHAPTER II. 
 
 The Ascetic Principle.* 
 
 This principle is exactly the rival, the antagonist of that which 
 we have just been examining. Those who follow it h ave a Jiraror 
 of pl easures. Everyttiing which gratifies the senses, in their 
 view, is odious and criminal. They found morality upon priva- 
 tions, and virtue upon the renouncement of one's self. In one 
 word, the reverse of the partisans of utility, they approve every- 
 thing which tends to diminish enjoyment, they blame everything 
 which tends to augment it. 
 
 This p rinciple has be en more or jess followed by two classes of 
 men, who in other respects have scarce any resemblance, and who 
 even affect a mutual contempt. The one cl ass are philos ophers, 
 the other, devotees. The ascetic philosophers, animated by the 
 hope of applause, have flattered themselves with the idea of seem- 
 ing to rise above humanity, by despising vulgar pleasures. They 
 expect to be paid in reputation and iu glory, for all the sacrifices 
 which they seem to make to the severity of their maxims. The 
 , ascetic devotees are foolish people, tormented by vain terrors. 
 .Han, in their eyes, is but a degenerate being, who ought to punish, 
 "himself without ceasing for the crime of being bom, and never to 
 turn off his thoughts from that gulf of eternal misery which is 
 ready to open beneath his feet. Still, the martyrs to these absurd 
 opinions have, like all others, a fund of hope. Independent of 
 the worldly pleasures attached to the reputation of sanctity, these 
 atrabUious pietists flatter themselves that every instant of volun- 
 tary pain here below wUl procure them an age of happiness in 
 
 * Ascetic, by its etymology, signifies one who exercises. It was ap- 
 plied to the monks, to indicate their favourite practices of devotion and 
 penitence. 
 
PBINCIPLES OP lEGISLATIOlf. 5^) 
 
 another life. Thus, even the ascetic principle reposes upon some 
 false idea of utility. It acquired its ascendancy only through 
 mistake.* 
 
 The devotees have carried the ascetic principle much further 
 than the philosophers. The philosophical party has confined 
 itself to censuring pleasur es ; the religious sects have turned the 
 infliction of pain into a du ty. The stoics said thaFpalnwas not 
 an evil ; the Jansenists maintained that it was actually a good. 
 The philosophical party never reproved pleasures in the mass, hut 
 only those -which it called gross and sensual, while it exalted the 
 pleasures of sentiment and the understanding. It was rather a 
 preference for the one class, than a total exclusion of the other. 
 Always despised or disparaged imder its true name, pleasure 
 was received and applauded when it took the titles of honov/r, 
 ghry, reputation, decorum, or self-esteem. 
 
 Not to be accused of exaggerating the absurdity of the ascetics, 
 I shall mention the least u nrea sonable or igin which can be assigned 
 to their syst em. 
 
 It wa s early perceived tha t the attraction of pleasur e might 
 s educe into pernicious a cts ; that is, acts of which the good was 
 not equivalent to the evil. To forbid, these pleasures, in consi- 
 deration of their bad effects, is the object of sound morals and 
 good laws.. But the ascetics have made a mistake, for t hey have 
 a ttacked pleasure itself; th ey have condemned it in generajj. 
 they have made it the object of a universal prohibition, the sign 
 of a reprobate nature ; and it is only out of regard for human 
 weakness that they have had the indulgence to grant some parti- 
 cular exemptions. 
 
 * This mistake consists in representing the Deity in words, as a being 
 of infinite benevolence, yet ascribing to him prohibitions and threats 
 which are the attributes of an implacable being, who uses his power only 
 to satisfy his malevolence. 
 
 We might ask these ascetic theologians what life is good for, if not for 
 the pleafinres it procures us ? — and what pledge we have for the good- 
 ness of God in another life, if he has forbidden the enjoyment of this ? 
 
6 psurcrPLES 07 LEei»LAiioir. 
 
 CHAPTER III. 
 
 Seciion I. 
 
 The '2.rbitrary Principle; or the Principle of Sympathy and 
 
 Antipathy. 
 T31S principle consists in_ approvpg or Warning by sentmm 
 -mthout giyjng any other reason for the decision except ^ejegi-^ 
 sion itself . I love, I hate ; such is the pivot on which this prin- 
 ciple turns. An action is j udged to he g ood or bad, not because 
 it is conformable, or the contrary, to the interest of those whom 
 it affects, but because it pleases or displeases him who judges. 
 He pronounces sovereignly ; he admits no appeal; he does not 
 think himself obliged to justify his opinion by any consideration 
 leiative to the gpod of society. " It is my interior persuasion ; 
 it is my intimate conviction ; I feel it ; sentiment consults no- 
 body ; the worse for him who does not agree with me — he is not 
 .a man, he is a monster- in human shape." Such is the despotic 
 "tone of these decisions. 
 
 But, it may be asked, are there men so unreasonable as to dic- 
 tate their particular sentiments as laws, and to arrogate to them- 
 selves the privilege of infaUibUity ? What you call the principle 
 of sympathy and antipathy is not a principle of reasoning ; it is 
 rather the negation, the annihilation of all principle. A true 
 anarchy of ideas results from it; since every man. having an 
 equal right to give his sentiments as a universal 1 rule, there will 
 no longer be any common measure, no ultimate tribunal to which 
 we can appeal. 
 
 Without doubt the absurdity of this principle is sufficiently 
 manifest. No man, therefore, is bold enough to say openly, " I 
 wish you to think as I do, without giving me the trouble to 
 reason with you." Every one would revolt against a pretension 
 BO absurd. Therefore, recourse is had to diverse inventions of 
 disguise. Despotism is veiled under some ingenious phrase. Of 
 this the greater part of philosophical systems are a proof. 
 
 One man tells you that he has in himself something which has 
 
rBIWCIEEES OF LKlISLATIOIf.; 
 
 been given him to teaeh-wiiatis gaodiBnd-.wlialasevil.;, asd this 
 lie calls either his conscietw exn ^hia moral. senie.: 'iTheHy; workings, 
 at his ease, he decides such a thing ta b& good, sneh anothei'to: ' 
 he bad. "Why? Because my .moral sense, tella '.me so. j- because 
 my conscience, approves or^disapproves. it. .' ; ■ ' -■/ 
 
 Another comes and the <phrase; changes, i It ^ is mo longer. -the 
 moral sense, — it is comm^Uiseme. which, tells him wl^ is good and: . 
 what is badi This common' isense^ig-a sensie, ,;he- aays, which be- 
 longs to everybody ; but then he. .takes good care in speaking of 
 everybody.tomake no account of those who do not .think as he does.. 
 
 Another! tells' you that this moral sense an^this common sense 
 are but dreams; that the understanding determines what is good 
 and what isibad:.. His understanding teUs lum.'so and so; all' 
 good and wise men have just'suoh .aniunierstanding' as he has.- ' 
 As to thoseiwho do not think in the same-wayyitSsacleai" proofe 
 that theirumd^^tandings are defective or, corrupt. 
 
 Another tells you that he has an eternal and immutable rule of-- 
 right, which rule commands/this and forbids that ; then he retails 
 to you his own particular .sentiments, which yoa are obliged to 
 receive as so many branches of the 'eternal Tule of right;' 
 
 Tou hear a multitude of pisofessors,' of jurists, of magistrate^, 
 of philosophers, who make the law of natwre e6!aio in your ears. 
 They aU. i dispute, it is ; trufej upon i every poiat of their system ; 
 but no'Biatter-^e&ch one proceeds with the same confident intre- 
 pidity, and u±ter9 his opinion as so ; many ehapters-of the law of 
 nature. The phrase is sometimesjmodffied, and we.flnd in its 
 T^lwoB,- natural rigJit, natural leqUii^ the rights- of man, &c. 
 
 One philosopher undertakes to bmld a moral system upon what: 
 he calls truth : according to him,; the only pvil in the. world is 
 lying. If you kill your father,- ^ou commit a crime, because it 
 is a particular fashion of saying th^t he is not your father. 'Every-= 
 thing which this philosopheii does not Uke, he disapproves under 
 the pretext that it is a sort ^ of falsehood-^anoe it amounts to 
 asserting that we ought to. do what ought not to be done. 
 
 The most candid--ef th ese despots are those who say openly, 
 " I am one of the elect ; and God takes care to enlighten the elect 
 
8 PEINCTPIES OF LEGISIAIION. 
 
 as to what is goqd and what is evil. He reveals himself to me, 
 and speaks by my mouth. AU you who are in doubt, come and 
 receive the oracles of God." 
 
 AH these systems, and many more, are at bottom only the 
 mrlitrary principle, the principle of sympaihy and, antipathy, 
 masked under different forms of language. The object is, to 
 make our opinions triumph without the trouble of comparing 
 them with the opinions of other people. These pretended prin- 
 ciples are but the pretext and the support of despotism, — at 
 least of that despotism of disposition which has but too much 
 incliaation to develop itself in practice whenever it can do so 
 with impunity. The result is, that with the purest intentions 
 a man torments himself, and becomes the scourge of his fellows. 
 If he is of a melancholy disposition, he falls into a sullen taci- 
 turnity, and bitterly deplores the foUy and the depravity of man. 
 If he is of an irascible temper, he declaims furiously against 
 all who do not think as he does. He becomes one of those 
 ardent persecutors who do evil in the spirit of holiness; who 
 blow the fires of fanaticism with that mischievous activity which 
 the persuasion of duty always gives; and who brand with the 
 reproach of perversity or of bad faith all who do not blindly adopt 
 , the opinions which they hold sacred. 
 
 However, it is essential to observe that the principle of sym- 
 pathy and an tipathy must often coincide with the principle of 
 utility. 'To love what benefits us, to hate what hurts us, is a 
 universal principle of the human heart. It thus happens that, 
 from one end of the world to the other, acts beneficent or 
 hurtful are regarded with the same sentiments of approbation 
 or dislike. Morality and jurisprudence, led by this kind of 
 instinct, have often reached the great end of utility without 
 having a clear idea of it. But these sympathies and these anti- 
 pathies are not a sure and invariable guide. Let a man refer 
 his happiness or his misery to an imaginary cause, and he 
 becomes subject to tinfounded loves and unreasonable hates. 
 Superstition, charlatanism, the spirit of sect and party, repose 
 almost entirely upon blind sympathies and blind antipathies. 
 
PBINCIPLES OF lEGISLATIOir. 9 
 
 Incidents the most frivolous, — a difference in fasHon, a slight 
 diversity of opinion, a variety ia taste, are enough to present, a 
 man to the eyes, of another under the aspect of an enemy. 
 What is history, hut a collection of the ahsurdest animosities, 
 the most useless persecutions ? A prince conceives an antipathy 
 against certain men who use some indifferent expressions; he 
 calls them Arians, Protestants, Sociniaiis, Deists. He builds 
 scaffolds ; the ministers of the altar array the executioners ; 
 the day on -which the heretics perish in the flames is celebrated 
 as a national festival. In Eussia a civil war -was undertaken 
 to settle a long controversy as to the number of fingers which 
 ought to be used in making the sign of the cross. The citizens 
 of Kome and Constantinople were divided into implacable fac- 
 tions about players, charioteers, and gladiators; and to give 
 importance to such shamefol quarrels, it was pretended that the 
 success of the greens or of the llues presaged abundance or famine, 
 victories or reverses to the empire. 
 
 Antipathy may sometimes be found in unison with the prin- 
 ciple of utility ; but even then it is not a good basis of action. 
 When a person through resentment' prosecutes a robber before 
 the tribunals, the action is certainly good, but the motive is 
 dangerous. If it sometimes produces good actions, more often 
 its fruits are fatal. The sole basis of action always surely good 
 is the consideration of utility. Good is often done from other 
 motives ; it is never constantly done except from that considera- 
 tion alone. Sympathy and antipathy must be subjected to it, to 
 prevent them from becoming hurtful ; but the principle of utility 
 is its own regiilator ; it admits no other ; and it is impossible to. 
 give that principle too great extension. 
 
 To sum up ; — the ascetic pnneiple attacks utility in front. The 
 principle of sympathy neither rejects it nor adioits it ; it pays no 
 attention to it ; it floats at hazard between good and evil. The 
 ascetic principle is so unreasonable, that its most senseless fol- 
 lowers have never attempted to carry it out. The principle of 
 sympathy and antipathy does not prevent its partisans from hav- 
 ing recourse to the principle of utility. This last alone neither 
 
1 ■ PEiif ciPLES; or . lEGisiajJiaN'. ; 
 
 asks, nor admits any lexeeption-f i-^i mmauh me:.eontra me; that 
 ■wliicli is not nnder meis against me ; .suoliis its mottp. Accordr: 
 ing to this principle^ ta legislate is an affair of observation and 
 calculation ; according to the asoetics^it is.an affair of fainatioism; . , 
 according to the primeiplei ofsjmipaliiy aiid..flntipaHiy,' itis: a^ 
 matter of humour, ofimaginationji of taste. . The.firstcmethodis 
 adapted to philosophers^ the second to monks j.'ihelhird. is the_ 
 favourite of mts, of ordiaiary moralists, of meniof ithej.worldj-Of 
 the multitude. . ,> ;,i ,, . < . i ' ,; 
 
 Sectiok il. 
 ^Causes of Antvpathy, . ,.., , , . . -^ ,. 
 
 Antipathy exercises so powerful an influence over -morals: and 
 legislation, that it is important, to investigate the. principles ■whixdi' 
 give birth to it. , i n . . . ■">■ ■ ' : i ,. ■■ * 
 
 TiKST Catse. — iJ«^M^»«>*c«o//S««««.r*-N'othing; is more, common . 
 than the transition irom a physical ta ajmorali antipathy, .espe- 
 cially ■with feeble min^s.i A multitude of innocent animals suffer i 
 a cantinual persecutionj because. they, have the misfortune to be 
 thought ugly. Everything unusual lias the, power of excitijig in 
 us a sentiment of. disgust and hatred.,, What.is called a mowter 
 is only a being which differs a . little irom. others of its kind. 
 Hermaphrodites, whose sex is .undeterminedv are regarded with 
 a sort of horror, only, because they are rare. 
 
 Second Cause. — Wounded Pride,— ^&,mhp does not adopt my 
 opinion, indirectly declares that he has but little respect for my 
 knowledge upon the point.in dispute. Such a declaration offends 
 my self-love, and shows me an ^adversary in-this man, who not 
 only testifies a degree of contempt for me, but who will propa- 
 gate that contempt in proportion as his opinion triumphs over 
 mine. ■. ,, . , 
 
 Thieb Caxise. — Bower ■eontT'OUed. — Even when our vanity does 
 not suffer, we perceive Jjy the differenceof tastes, by the resistance 
 of opinions, by the.shocki of interests,, that our power is limited, 
 that our dominion, which we desire to extend everywhere, is 
 
PMNCIPUES or lEGISLATIOlf. 11-- 
 
 bounded OH! eyerysidej Tlids eompulsive feeling of, our own 
 weakness is a secret pain, a germ of diseontent against 
 othiers. 
 
 PouKTH: CA.vsE:-^CodJidineem ti»/mtifr»iio^i;ened ardestroyec^,, 
 — We love toTbelieTe that men are such as we < imagine. our Jiap- 
 piness, requires:- tkemi-to, be. Every apt on, their part whichtends 
 to-diminish our confidence in; theig, .cannot but give us a secret 
 disgust..! An eixMnple,' of felsehood makes us see that we cannot 
 always. rely upon what they say, or, what, they promise; an 
 example of absurdity inspires a general doubt as to their reason, 
 and consequently as totheii conduct. . An act of caprice, or of 
 levity, makes us conclude that we cannot rely on their affections. 
 
 I"iFTH Cattse.^ — The desire of /unanimity^ — lUnanimity pleases 
 us. This harmony of sentiment is the only pledge we can have, 
 apart fi»m our own reason, ;of the.trn.Jih of our opinions, ,and of 
 the utUity of the actions founded upon those opinions. .Besides, 
 we love to dwell upon subjects to our taste; it is a source of 
 agreeable recollections and of pleasing hopijs. The conversation 
 of persons whose taste conforms to ours, augments this fund of 
 pleasure^ by fixing our attention upon .agreeable objects, and pre- 
 senting them to us under new points of. view. 
 
 Sixth CussE.'^Enmy. — ^HeVho, enjoys himself without doing 
 harm, to anybody, ought not, it -would seem, to have enemies. 
 Tetitmaybe said that his, enjoyment impoverishes those who 
 do not partake it. 
 
 It is a common observation; that envy acts with most 
 force against recent advantages, while it spares older ones. 
 Thus it is, that the -woxi-iuf start always has an injurious accep- 
 tation. It expresses a new success; envy adds, as accessory 
 ideas, humbling recoUectiona and.a feigned contempt. 
 
 Envy makes ascetics. The differences of age, of wealth, o f 
 circumstances, prevent all men from* having equal enjoyments; 
 but the severity of privation can reduce all to the same level. 
 Envy inclines us towards rigid.. speculations in morals, as a 
 means of reducing tiie am'ount of pleasures. It has been said, — 
 and with reason, — that a man who should be born with an organ 
 
12 PEINCrPLES OF LEGISLATION. 
 
 of pleasure, -which the rest of us do not possess, would be pur- 
 sued as a monster. 
 
 Such is the origin of antipathy ; such is the collection of sen- 
 timents of -which it is composed. To moderate its -sdolence, let 
 us recollect that there is no such thing as a perfect conformity- 
 even bet-ween two individuals j that if we yield to this imso- 
 ciable sentiment, it -will al-ways go on increasing, and -wUl con- 
 tract more and more the circle of our good--will and of our plea- 
 sures ; that, in general, our antipathies re-act against ourselves ; 
 that it is in our power to enfeeble, and even to extinguish them, 
 by banishing from our minds the ideas of those objects by which 
 they are excited. Fortunately , the causes of sy mpathy a re con- 
 stant and natural, while the causes of antipath y arc accidental 
 and transitory. 
 
 Moral -writers may be arranged in two classes ; those who 
 labour to extirpate the venomous plants of antipathy ; and those 
 who seek to propagate them. The first class are apt to be calum- 
 niated ; the others gaia respect and popularity, because, under 
 the specious veil of morals, they are in the service of vengeance 
 and of en-^y. The books which attain the most speedy celebrity, 
 are those which the demon of antipathy has dictated, such as 
 libels, works of party, satirical memoirs, &o. Tehmachus 
 did not owe its brilliant success to its morality, or to the charm 
 of its style ; but to the general opinion that it contained a satire 
 upon Louis XIV. and his Court. When Hume, in his History, 
 wished to calm the spirit of party, and to treat the passions like 
 a chemist who analyzes poisons, tihe mob of readers rose up 
 against him; they did not like to see it proved that men were 
 rather ignorant than wicked, and that past ages, always extolled 
 to depreciate the present, had been far more fertile in misfortunes 
 and crimes. » 
 
 Fortunate for himself, fortunate is the writer who can give 
 himseK up to these two false principles ; to him belong the field 
 of eloquence, the employment of figures, the vehemence of style, 
 exaggeration of expressions, and all the vulgar vocabulary of the 
 passions. AU his opinions are dogmas, eternal, immutable truths. 
 
PBINCIPLES OP lEGISLAIIOir. 13 
 
 as immoveaHe as God and nature. As a writer, lie exercises 
 the power of a despot, ^nd proscribes those who dJ^ agree with 
 him. 
 
 The partisan of the principle of utility is in a position by no 
 means so favourable to eloquence. His means are as different as 
 his object. He can neither dogmatize, dazzle; nor astonish. He 
 is obliged to define all his terms, and always to employ the same 
 word in the same sense. He consumes a long time in getting 
 ready, in making sure of his foundation, in preparing his instru- 
 ments ; and he has everything to fear from that impatience which 
 grows weary with preliminaries, and which wishes to arrive in a 
 moment at great results. However, this slow and cautious 
 advance is the only one which leads to the end desired ; for if 
 the power of spreading truth among the multitude belongs, to 
 eloquence, the power of discovering it appertains only to 
 analysis. 
 
 CHAPTER IV. 
 
 Operation of these principles upon Legislation, 
 
 The principle of utility has ne ver yet been well developed, nor 
 well followed out by an y legi slat or ; but, as we have already 
 mentioned, it has penetrated from time to time into laws, from 
 its occasional alliance with the principles of sympathy and anti- 
 pathy. The general ideas of vice and virtue, founded upon a 
 confused perception of good and evil, have been sufficiently uni- 
 form in every essential point ; and the early laws, without which 
 no society can exist, have been made in conformity with these 
 popular ideas. 
 
 The ascetic principle, though embraced with warmth by its 
 partisans in their private conduct, has never had much direct 
 influence upon the operations of government. On the contrary, 
 every government has had for its system and its object the acqui- 
 sition of strength and prosperity. The rulers of states have never 
 made evil an end ; they have been seduced into it by false views 
 
.14 . rKINCrPLES OF lEOISlATIOir. 
 
 . <rf gre^tnessiaud ppwer, pr Ijy priy3,te passiojis which, have resulted 
 in public evilsi. • 2!he .system adqpted at Spafta7-.a discipline 
 which well entitles that community to be called a convent of 
 warriors — ^in relation to the circumstances of that state, was 
 necessary to its preservation, or, at least, was esteemed so by its 
 legislator;, .and under that aspect, was conformable to the prin- 
 ciple of utility. , Many Christian states have permitted the estab- 
 lishment of monastic orders; but the vows are supposed to be 
 voluntary. To torment .one's self was esteemed a work of merit; 
 to torment another against his will has been always regarded as 
 a crime. St. Louis wore .sackcloth, but he obliged none of his 
 subjects to. wear it. 
 
 The principle wiich has exercised the greatest influence upon 
 governments, is that of, sympathy and antipathy. In fact, we 
 must refer to that principle aU those specious, objects which 
 governments pursue, without having the general good for a single 
 and independent aim ; such as good morals, equality, liberty, 
 justice, power, commerce, religion; objects respectable in them- 
 selves, and which ought to enter into the views of the legislator ; 
 but which too often lead him astray, because he regards them as 
 ends, not as means. He substitutes them for public happiness, 
 instead of making them subordinate to it. 
 
 Thus, a government, entirely occupied with wealth and com- 
 merce, looks upon society as a workshop, regards men only as 
 productive machines, and cares little how much it torments them, 
 provided, it makes them rich. The customs, the exchanges, the 
 stocks, absorb all its thpughts. It looks with indifference upon 
 a multitude of evils which, it might easily cure. It wishes only 
 for a great, production of the means of enjoyment, while it is con- 
 stantly putting new obstacles in the way of enjoying. 
 
 Other governments esteem ppwer and glory as the sole means 
 of public good. .Full of).djsd8un for those states which are able 
 to be happy in a peacefiil security, they must , have intrigues, 
 negotiations, wars and conquests; They do not consider of what 
 misfortunes this glory is composed, and how many victims these 
 bloody triumphs require. The icht of victory, the acquisition 
 
PKtSCIPLES 01' LEGISLATION. 15 
 
 :of aprovinfce, conceal from ihem the deSolatioa pt their country, 
 and make them 'mistake the true end-of gove;rnmenti 
 
 Many persons do not inquire if a state he well administered ; 
 if the laws p'rotect property and persons ; if the people are happy. 
 What they require; ■without giving attention to anything else, is 
 political liberty— that is, the most equal distribution which can 
 be imagined of political power. "Wherever they do not see the 
 form of government to which they are attached, they see nothing 
 but slaves ; and if these pretended slaves are well satisfied with 
 their condition, if they do not desire to change it, they despise 
 and insult them; In their fenaticism they are always ready to 
 stake all the happiness of a nation upon a, civil war, for the sake 
 of transporting power into the hands of those whom an invin- 
 cible ignorance will not permit to use it, except for their own 
 destruction, i - , ■ ■ ' ' r ' 
 
 These are examples, of some of the phantasies which are sub- 
 stituted in politics, instead of the true search after . happiness. 
 They do not grow out of an opposition to happiness ; they are the 
 flniits of inadvertence or mistake. A small part of the plan of 
 utility is seized uponj an exclusive attachment is evinced for 
 that small; part J in the .pursuit of some particular branch of the 
 public good, the- general happiness is disregarded; it is forgotten 
 •that -all these particulaf objects have only 'a' relative value, and 
 that happiness-alone ias a v^ue which is intrinsic. 
 
 ' CHAPTER Y. 
 .1., . .Fiirthm^ McpJamtions. — Oljectiom mtioerei. , 
 
 Some trifling objections, some little verbal difficulties, maybe 
 raised- against 'the principle of utility ; Jaut, p.oi6si' ot distinct 
 . objection can he opposed to it.- In fact, how can it be contested 
 except by reasons taken from itself ? To sajr that it is a dangerous 
 principle, is to say that it would be contrary to utility to consult 
 utility, .! -. ' 
 
 The difficulty upon this question grows out of a kind of per- 
 
16 PKINCIPLES OF LEGISLATIOir. 
 
 version of language. It has been customary to speak of virtue jn 
 opposition to utility. Virtue is described as the sacrifice of our 
 i nterest to our duties. 
 
 To convey clear ideas upon this subject, it should be explained, 
 that there are interests of different orders, and that different 
 interests, in certain circumstances, are incompatible. Virtue is 
 the sacrifice of a less interest to a greater, of a momentary to a 
 durable, of a doubtful to a certain interest. Every idea of virtue 
 not derived from this- iiotion, is as obscure in conception as it is 
 precarious in motive. 
 
 Those who, for the sake of accommodation, are willing to dis- 
 tinguish between politics and morals, to assign utility as the 
 principle of the one, and justice as the foundation of the other, 
 announce nothing but confused ideas. The only difference 
 between politics and morals is, that one directs the operations of 
 governments, and the other the actions of individuals ; but their 
 object is common ; it is happiness. That which is politically 
 good cannot be morally bad, imless we suppose that the rules of 
 arithmetic, true for large numbers, are false for small ones. 
 
 While we imagine that we follow the principle of utility, we 
 may nevertheless do evil. A feeble and narrow soul deceives 
 itself by taking into consideration but a small part of evil or of good. 
 An ardent disposition deceives itself by giving an extreme im- 
 portance to a particular good, by which aU consecutive evils are 
 concealed from its sight That which constitutes a bad man, is 
 the habit of pleasures injurious to others ; but this very habit 
 supposes the absence of many kinds of pleasure. One ought not 
 to hold utility responsible for mistakes contrary to its nature, and 
 which it alone is able to rectify. If a man calculates badly, it is 
 not arithmetic which is in fault ; it is himself. If the charges 
 which are alleged against Machiavel are well founded, his errors 
 did not spring from having consulted the principle of utility, but 
 from having applied it badly. This fact, the author of the Anti- 
 Machimel has clearly perceived. He refutes the Prince by 
 making it appear that its maxims are fatal; and that bad faith is 
 bad policy. 
 
PEDfCIPlES OF LEGISLATIOlf. llf ' 
 
 Those who, from reading Cicero's Offices and the Platonic 
 moralists, have a confused notion of the weful as opposed to the 
 honest, often quote that ohservation of Aristides upon the scheme 
 which Themistooles was unwilling to disclose, except to him alone. 
 " The project of Themistooles \svery advantageous," said Aristides 
 to the assembled people, " but it is very unjust." Here seems to 
 be a decided opposition between the useful and the just, Not so. 
 It is only a comparison of good and evU. JJryust is a term 
 which presents the coUectiye idea of all those evils which result 
 from a situation in which men can no longer trust one another. 
 Aristides might have said, " The project of Themistooles would be 
 useful for a moment, but injurious for ages ; what it would give 
 is nothing in comparison with what it would take away."* 
 
 It is sometimes said that the principle of utility is only a 
 revival of epicureanism. TEe^favages wEioh that docSine'madF'" 
 in morals are well known. It was adopted by the most corrupt 
 of men. 
 
 I t is true that Epicurus alone^of all the ancients had the merit 
 of having known the true source of morals ; but to suppose that 
 his doctrine leads to the consequences that have been imputed to 
 it, is to suppose that happine ss may bec ome the enemy of happi- 
 ness. Sio prasentihus utaris voluptaiibm, ut futuris non noceas, 
 — So use present pleasures as not to lessen those which are to 
 come. In this sentiment Seneca coincides with Epicurus; and 
 what more can morality desire than the retrenchment of every 
 pleasure injurious to one's self . or to others ? Now this is the 
 very principle of utility. 
 
 But, it is again objected, every one makes hi mself the judge 
 of his own utility, and upon this system everyjobUgatioiL will__ 
 lose its force the moment people cease to see their interest in 
 regSdrng^ST 
 
 * This anecdote is not worth being cited except to clear np the sense 
 of words. Its falsity has been proved. See Mitford's History of 
 Greece. Plutarch wished to compliment the Athenians ; but he would 
 have been much embarrassed to reconcile the greater part of their history 
 with this noble sentiment.. 
 
 C 
 
18 PEINCIPLES OP lECISIATIOlJ-. 
 
 Every one makes himself the judge of his own utility ; such 
 is the fact, and such it ought to be ; otherwise man would not 
 be a rational agent. He who is not a judge of what is agreeable 
 to him, is less than a child ; he is an idiot. The obligation 
 which binds men to their engagements is nothing but the percep- 
 tion of a superior interest, which prevails over an inferior- inte- 
 rest. A man is bound not only by the particular utility of such 
 or such an engagement; but when the engagement becomes 
 onerous to one of the parties, he is still boimd. by the general 
 utility of, engagements ; by the confidence in his word which 
 every sensible man wishes to inspire, in order that he may be 
 considered a man of truth, and enjoy the advantages incident to 
 the reputation of probity. It is not the engagement itself which 
 constitutes the obligation ; for some engagements are void, and 
 some are unlawful. "Why? Because they are esteemed inju- 
 rious. It is, then, the utility of a contract which gives force 
 to it. 
 
 It is easy to reduce to a calculation of good and of evil aU the 
 acts of the most , exalted virtue ; and virtue is. neither degraded 
 nor weakened by being represented as an effect of reason, and 
 being explained in a simple and intelligible manner. 
 
 If we refuse to acknowledge the principle of utility, we fall 
 into a complete circle of sophistry. I oughtto.keep mypromise. 
 "Why ? Because my conscience bids me do it. How do you 
 know that your conscience bids you do it? Because I have 
 an ii^terior feeling to that effect. Why ought you to obey your 
 ■conscience ? Because God is the author of my nature, and to 
 obey my conscience is to obey God. Why ought you to obey 
 Ood ? Because it is my first duty. How do you know that? 
 My conscience tells me so, &c., &c. We can never get out of 
 this circle, which presently become§ ifete source of obstinate and 
 inveterate error, Tor if we judge or everything by feeling, there 
 is no means left to distinguish the dictates of an enlightened con- 
 science from those of a blinded one. AU persecutors wiU have 
 the same pretence ; aU fanatics the same right. 
 
 If you desire to reject the principle of utility because it may 
 
PETNCIPiES OF LEGISLATION. 19 
 
 be lU. aj^li'ed, what is there to put i n its plac6? JiVTiete is the 
 rule which oamiot he abused ? -Where is this infallible guide ? 
 
 "VVill you substitute for it some despotic principle, which, 
 orders men, like passive slaves, to act so and so, without knowing 
 why?' \ " ' ;■' ' -" ^ ■'■ ■ " 
 
 Will ydii Bubstiliute for it some fluctuating and capricious 
 principle, founded only upon your owa intimate' and particular 
 feelings? 
 
 If so, what inotives will- yoii hold out' to induce people to 
 follow you? ShaU these motives be independent of interest? 
 In that case, if people do not 'agree with you, how will you' 
 reason with tKem, — how bring them to terms? "Whither will 
 you cite all the sects, all the systems,- all the coiitradictions that : 
 cover the world, if not to the tribunal of a common interest? 
 
 The most obstinate opposers of the principl e! of utility are those 
 who,-take' their stand u pon w hat they call ih& religious principle. 
 They profess to take the will of G6d for the only rule of good 
 and iBvil. ' It is the only rule, they Saj^j whichhas all the req[Ui- 
 site characters ; which is infallible, 'universal, sovereign, and so 
 on. I answer t hat th e religious piiUeiple is not a distract prin - 
 cipl e by itself. ; it is only a partifaular form of one or the other of 
 those above described. TJnl&s'G-od-'Bxplains himself to each 
 individual by iiuinediate acts and particular revelations, what is 
 called, his will ca n only be what we presume to be suchi How 
 does a man presume the will of God? Prom his own. Now 
 his particular wUl is always directed by one • of the three prin- 
 ciples above described. How do you know that God forbids 
 such and such a thing? "Because it would be prejudicial to 
 the happiness of mankind," answers the partisan of utility. 
 "Because it includes a gross' and; sensual pleasure," says the 
 ascetic. "Because it wounds the conscience, is contrary to 
 natural sentiments, and ought to be detested without stopping to 
 examine it," — such is the language of antipathy. 
 
 But revelation, it will be said, is the direct expression of the 
 will of God. There is nothing left to be questioned or disputed. 
 Here is a guide far preferable to human reason. 
 
 c 2 
 
20 PEINCIPLES OF LEGISLATIOlf. 
 
 I do not answer indirectly that revelation is not universal ; 
 that even among Christian nations there are many persons who 
 do not admit it ; and that in morals and politics, some principle 
 of reasoning is necessary, which is common to all men. But I 
 reply that re velation i s not a system of politics nor^ofjiorals ; 
 that aU its precepts need to be explained, modified, and limited, 
 one by the other ; that, taken in a literal sense, they would over- 
 turn the world, annihilate self-defence, industry, commerce, 
 reciprocal attachments ; and that ecclesiastical history is an in- 
 contestable proof of the fiightful evils which have resulted from 
 religious maxims badly understood. 
 
 "What a difference between the Protestant and Catholic theolo- 
 gians—between the moderns and the ancients ! The gospel 
 morality of Paley is not the gospel morality of Nicole. That of 
 the Jansenists was not that of the Jesuits. 
 
 The interpreters of Scripture may be divided into three classes. 
 The first class have the principle of utility for their rule of 
 criticism ; the second class are ascetics ; the third class follows 
 the mixed impressions of sympathy and antipathy. The first, 
 far from excluding pleasure, quote it as a proof of the goodness 
 of God. The ascetics are its mortal enemies ; if they ever permit 
 it, it is not for itself, but only in view of some certain necessary 
 end. The last approve it, or condemn it, according to their 
 fancy, without being guided by the consideration of consequences. 
 It seems, then, that revelation is not a principle by itself? for 
 nothing can be properly called a principle except that which 
 needs no proof, and which serves to prove everything else. 
 
 CHAPTER VI. 
 
 The different Tcinds of Pleasures and Pains. 
 
 We experience without cessation a variety of sensations which 
 do not interest us, and which glide by without fixing our atten- 
 tion. Thus, the greater part of the objects which are familiar 
 to us no longer produce a sensation sufficiently vivid to cause us 
 
PEIlfCIPLES OF LEGISLATIOK. 21 
 
 either pain or pleasure. These names cannot be given except to 
 sensations 'which attract our attention ; which make themselves 
 noticeable in the crowd ; and of which we desire the continuance 
 or the end. These pleasurable perceptions are either simple or 
 complex : simple, when they cannot be decomposed' into others ; 
 complex, when they are composed of several simple pains or 
 simple pleasures, or perhaps of a mixture of pleasures and pains. 
 What determines us to regard several pleasures as a complex 
 pleasure, and not as' so many simple pleasures, is the nature of 
 the cause which excites them. "We are led to consider all the 
 pleasures which are produced by the action of the same cause as 
 • a single pleasure. Thus a theatrical show which gratifies many 
 of our senses at the same time by the beauty of decorationb 
 music, company, dresses, and the action of performers, constitutes 
 a complex pleasure. 
 
 It has cost a great labour of analysis to prepare a complete 
 catalogue of the simple pleasures and pains. This catalogue has 
 a dryness which will repulse many readers, for it is not the work 
 of a writer of romance, who only seeks to please and move ; it is 
 a bin of particulars, it is the inventory of our sensations. 
 
 SECIIOlf I. 
 
 Simple Pleasures. 
 
 1st. Fleaswes of Sense. — Those which can be immediately 
 referred to our organs independently of all associations, viz., the 
 pleasures of taste, of smell, of sight, of hearing, of touch, especially 
 the blessing of health, that happy flow of spirits, that perception 
 of an easy and unburdensome existence, which cannot be referred 
 to any of the senses in particular, but which appertains to all the 
 vital functions ; finally, the pleasures of novelty, those which we 
 experience when new objects are applied to our senses. They do 
 not form a separate class, but they play so conspicuous a part, 
 that it is necessary to mention them expressly. 
 
 2nd. Pleasures of Riches — ^meaning thereby that kind of pleasure 
 
,22 ^EnrCIPtES OF lEiUISLATIOlf. 
 
 , , wljioli; ye derive ftojn t|iQ .possession of a. thipg, Tvliicji-is a means 
 
 ,;,of: eiyojpient.fir peqiirity,^— a jj.easure ■vyMch.as most lively at the 
 
 , moment of acquisition. , ■ 
 
 ,3x^. Flefisure^; of Address. — Those, whicli result ^from. some 
 
 ; diffipnlty oyercome> frpm Bome,:relati'^e perfeetipnin the handling 
 find emplpy of the jn^tfuments, ^:srhioh aid in, the attainment of 
 pleasure gv utility^, A person yhp touches ij<.haipsichorii„ for 
 example, experiences a pleasure. perfectly distinct from that of 
 
 . hearing the SEtme piece of music executed by another. • 
 
 , A^. Pleasures' o/,^«>»(?(!A«j?..—Ihose, which- accompany the 
 
 , persuasipit of popsessing ^ the gpod ■will of suph and such indi- 
 ,:jdduals, :Ei,nd the right of ex;pecting frpm>hem,,jya cpnsequence, 
 sppntanepus, andigratnitous services. , , , , 
 
 , ,5th. . Pleaswes of a good ^flp?«^(?^«p»^— Thpge wl^oh., a.ccpmpany 
 the possession or acquisition of the esteem and gppd will.pf the 
 people about us, rthe, persons with whom jfe may have relations 
 
 ,.pr common, interests,; and as a fruit of this-4ispositJpn on their 
 part, the right of expecting their ypluntary ^d gratuitous ser- 
 
 , vices, shpuld we happen to need them. 
 
 6th. Pleasures of Ppwfr.-r-Those which a man e^P(grie|i;pes \rho 
 perceives in himself the means of disposing others to serve him 
 through their hopes or their fears ; that is, by the fear of some 
 evil, or the hope of some good which he can do them. 
 
 7th. Pleasures of Piety. — Those which accompany the per- 
 suasion of acquiring or possessing the favour of God ; and the 
 power, dnr. consequence, of expecting particular favours from him, 
 either in this life or in another. 
 
 Wa..PleasmesofBen&volence.- — Pleasures which we are sensible 
 of .tgsting,^ when we contemplate the happiness of those who love 
 us. They may also be called pleasures of ^ympafhy or pleasures 
 of the social affeptions. . Their force is more or less expansive. 
 They have the power of concentrating themselves inta a narrow 
 circle, or of spreading over entire humanity. Benevolence extends 
 itself to animals of which we love the species or individuals ; the 
 signs of their happiness affect us agreeably. 
 
 9th. Pleasures of Malevolence. — They result from the sight or 
 
PKINCrPLES as lEGISIATION. ■ "^3 
 
 the, thought' of pain, endured by those beings ■who do not love ns, 
 ■whether men or. animals. They may also be called jpfeoxwr^q/ 
 the irascible passions, of antipathy, or of the anti-social affections. 
 
 IQth. When, we apply our mentalfaeulties to the acquisition 
 of n&yr ideas, and discover, or think we discover, interesting 
 truths. in, the .moral or physical sciences,- the pleasure which we 
 experience may be called ihs pleasw^e of Icnowledge. - The trans- 
 port of joy which Archimedes felt at the solution of a difficult 
 problem, is easily understood by all those who have sipplied 
 themselves to abstract studies. 
 
 llth. "When we have tasted such or such- a pleasure, and in 
 .certain cases even, when, we have suffered such or such a pain, 
 we love, to retrace them,, exactly in. the precise order of all their 
 cireumptances. ^'h.Bse axe ^ih&phasmes of memory. They are as 
 yaried asithe recollections in.which they originate. ■ 
 , .12th.,. But Bometimesmeniory suggests ceut^in pleasures, which 
 we arrange in a different order, according to our desire's; and to 
 which we join the inost agreeable circumstances we have noticed, 
 either va. our own life or inthat-of .oiiers. Theseiare pleaswres- 
 of the imagination. The painter, who. copies after nature, repre- 
 sents the operations of, memory ; he who selects groups here and. 
 there, and arranges them to i suit himself, represents the woriings 
 of the imaginajtion. Ifew ideas in the arts and sqiences, and aU 
 discoveries which interest our curiosity, contribute to the pleasures 
 of the imagination, which sees in these discoveries an extension 
 of its field-of enjoyments. • .','' 
 
 13th. The idea of a future pleasure, joined to the expectation 
 of presently enjoying it, constitutes ^epleaswte oflwpe. 
 
 14th. pleasures of Association. — An object may be unable to 
 give any pleasure in itself; but if it is connected in the mind 
 with some other object which is agreeable, it participates in the 
 charm of that object. Thus the different incidents of a game of 
 , chance, when we play for nothing, derive their interest from an 
 association with the pleasure of gaining. 
 
 15th. Lastly, there are pleasures founded upon pains. When 
 one has, suffered, the cessation or diminution of the pain is itself 
 
24 PEINCrPIES OP lEGISLAirON. 
 
 a pleasure, and often a very lively one. These may be called 
 pleaswrei of relief , or of deliverance. - They are as various as our 
 
 . pEuns. 
 
 Such are the" materials of all our enjoyments. They unite, 
 combine, and modify each other in a thousand ways, so that it 
 requires some little attention and experience to discover, in a 
 complex pleasure, aU the simple pleasures which are its 
 elements. 
 
 The delight which a country landscape gives, is composed of 
 different pleasures — pleasures of the senses, of the imagination, 
 and of sympathy. The variety of objects and their various 
 colours, the flowers, the trees, the intermixture of light and 
 shade, gratify the sight ; the ear is soothed by the song of birds, 
 the murmur of fountains, and the gentle rustling which the wind 
 makes among the leaves ; the air, embalmed with the perfume of 
 fresh vegetation, wafts agreeable odours ; while its elastic purity 
 makes the circulation more rapid and exercise more agreeable. 
 Imagination and benevolence unite to embellish the scene, by 
 presenting ideas of wealth, of abundance) of fertility. The inno- 
 cence and happiness of the birds, the flocks, and the domestic 
 
 '■ animals, furnish an agreeable contrast to the recollection of the 
 fatigues and agitations of human life. "We transfer to the in- 
 habitants of the country all the pleasures with which the novelty 
 of these objects inspires us. Finally, a sentiment of gratitude to 
 that eternal Being, whom we regard as the author of all these 
 benefits, augments our confidence and our admiration. 
 
 Seciioit II. 
 
 Simple Pains. 
 
 1st. Pains of Privation. — These correspond to all the plea- 
 sures whose absence excites a sentiment of chagrin. They exist 
 in three principal modifications. First, if we desire a certain 
 pleasure, but have more fear of wanting it than hope of obtaining 
 , it, the pain that results inay be called j»»m of desire, or of unsatisfied 
 
PEnfCIPIES OF lEGISIATION'. 25 
 
 desire. Second, if we have had strong hopes of enjoying the 
 pleasure question, but these hopes have suddenly failed, this 
 privation is' a pain of disappointment. Third, if we have enjoyed 
 a good, or, what amounts to the same thing, if we have counted 
 strongly upon its possession, and then lose it, the sentiment 
 which this loss produces is called regret. That languor of soul 
 described by the word ennui is a paia of privation which cannot 
 be referred to any particular object, but to the absence of every 
 agreeable sensation. 
 
 2nd. Pains of Sense. — There are nine kinds : those of "hunger 
 and thirst ; those of taste, of smell, of touch, produced by the 
 application of substances which excite disagreeable sensations ; 
 those of hearing and sight, produced by sounds or images which 
 offend those organs, independently of association ; excess of cold 
 or heat, — unless these pains ought to be referred to the sense of 
 touch ; diseases of all kinds ; finally, fatigue, whether of mind 
 or body. 
 
 3rd. Pains of Mal-address. — Those which are sometimes ex- 
 , perienced in fruitless attempts or laborious efforts to apply to 
 their different uses the various kinds of tools or instruments, 
 whether of pleasure or pain. 
 
 4th. Pains of JEnmity. — Those which a man feels when he 
 , believes himself an object of malevolence on the part of certain 
 individuals, and apprehends that he may be exposed in conse- 
 quence to experience the practical feffects of their hatred. 
 
 5th. Pains of a Bad Reputation. — Those which a man feels 
 when he believes himself actually an object of the malevolence or 
 contempt of the world which surrounds him, or exposed to become 
 so. They may also be called ^ams of dishonow, ov pains of the 
 popular sanction. 
 
 6th. Pains of Piety. — They result from the fear of having 
 
 , offended the Supreme Being, and of incurring his chastisements, 
 
 either in this life or in the life to come. If they are thought to 
 
 be well founded, they are called religious fears, — if iU founded, 
 
 ■ they are denominated superstitious fears. 
 
 7th. Pains of Benevolence. — These are the pains which we 
 
, 26 PBUCCIPLiES OF LBMSEtTiaK'. 
 
 , experieiiee at the sight or ithoTlghttif the suffering whether of 
 men or, lanimals.; ..The emotions of pity make us weep at the 
 miseries of others, as 'well as, 'at our own. They may also be 
 
 i .OAlled pains of syinipathy, pains t)f the social qffeetions. 
 ■ ,«,'8.th.T(Z'flms ofMaievolmee. — These'arethe pains -we'experiehce 
 at reflecting. on the happiness of those we hate, They'may also 
 tie called pains of antipathy, pains of the antisocial- affections. 
 
 ,9thj 10th, and 11th. Tht pains of memory, oiihB imagination, 
 and oifear, are the exact reverse and counterpart of the pleasures 
 ofcorresponding names. ' ' 
 
 i : ThQilaboijr of.-prepai^ingthis catalogue of pleasures and pains 
 is dry, but! its, utility is great. ■ The whok^^^temMsfjiiorals, Jhe 
 w hole system of legis lation, rests -upbn a. Single basis, and that 
 basis is, the inoialedge if , pains and pleaswes. •- It is the" billy 
 , foundation. 'of,; clear ideas upon those subjects. "When we'spfeak 
 
 , of vices and virtues, of, , actions iunQcent or criminal', of a eysteia 
 remuneratory or penal, what. is it that we speak of? Of pdilis 
 and pleasures, gnd of ^gthiiig else, . A reason in morals or politics, 
 
 ^ which oajin()tbo!t^aEi§late.d. by the simple words ^«m ov pleasure, 
 
 ^is an obscure aud. s,opliistioal,;reason, froln which nothing.can.be 
 concluded. 
 
 , Tou wish,, for example,, to study, the subject of offences, — that 
 great objept which .directs aJl legislation. This study, at bottom, 
 wiU be nothing ,but axiomparison, a calculation, of pains and plea- 
 sures. . TgUiConsiderthe cnitninaUty or the evil of certain actions, 
 —that is, the pains which, result from them to such and such 
 individuals; the motive of > the delinquent,— -that is, the expec- 
 tation of pleasure which led him to commit the action in q^uestion ; 
 the advantage of the offence,' — that is, the acquisition of pleasure 
 which has resulted from it ; the legal punishment which ought to 
 be inflicted, — that is, what pain the gnUty person ought to 
 undergo. It thus appearsrthat the theory of pains' and pleasures 
 iSjthe sole foundation of all knowledge upon the subject of legis- 
 lation. 
 
 The more these two catalogues; are examined, the more matter 
 for reflection they wiUbe found to contain. 
 
.TOUfCIEIiES 0V> lEGISEATION. 27 
 
 Jt ip pb yjous .at on ce, that pleasures and pains may be divided 
 
 . into, two . clagsea ;. fiha^ wtes '<'>^j^_gi^'£j[ wMch relate to ethers; — 
 
 p lea^WfS) md pains ^purely personal. Those of benevolence and of 
 
 malevolence compose the first class; all theiest belongto the second. 
 
 It is worthy of observa,tion that many kinds of' pleasnre exist 
 
 wit hout having, corresponding pa ins. 1 st. Phaswes of novelty. 
 
 The sight of new objects is a source of pleasures, whUethe simple 
 
 absence of new objects is not felt as a pain. 2nd. Pleasures of 
 
 low,- The want, of them is not attended with positive pain, 
 
 except when there is. disappointment. ' Some temperameiits may 
 
 J suffer from this- want, but ,in general continence is in the- power 
 
 of every one,, and is very far from.; being a state of ^ain. 3rd. 
 
 . JPlea^ures ofr.'^ohesmd ofacquisitions ;ithey have no corresponding 
 
 ,.pains except where there is disappointment. To acquire is always 
 
 agreeable,; simple non-acquisition is not felt as a pain. 4th. It 
 
 is the same with \!aR pleasures of power. Their possession is a 
 
 good ; their mere absence is not an evil ; it is only felt as an evil 
 
 by reason of some particular circumstance, such as privation or 
 
 ■disappointment. | .. •. . 
 
 CHAPTER VII. 
 , "Prnm and Pleasures considered as Sanctions. 
 The wiU cannot be influenced except by, motives; but when we 
 speak of motives-, we speak otpleamFes plains. A being whom 
 WB could not affect either by.. painful or pleasurable emotions 
 would be completely independent of; us.' 
 
 The pain or pleasu re which is, attached to a law form what is 
 called its sanction. , The laws of one state are not laws in another 
 because theyhive no sanction there, no obligatory force. 
 Pleasures and pains may be distinguished into four classes ; 
 1st. Physical. 
 2nd, Moral.' 
 3rd. Political. 
 4th. Eeligious. 
 
28 PRiifcrpiEs or ieoisxatioit. 
 
 Consequently, when we come to consider pains and pleasures 
 under the character of punishments and rewards, attached to 
 certain rules of conduct, we may distinguish four sanctions. 
 
 1st. Those pleasures and pains which may be expected in the 
 ordiaary course of nature, acting by itself, without human inter- 
 vention, compose the natural or physical sanction. 
 
 2nd. The pleasures or pains which may be expected from the 
 action of our fellow-men, in virtue of their Mendship or hatred, 
 of their esteem or their contempt — in one word, of their spon- 
 taneous disposition towards us, compose the moral sanction ; or it 
 may be called the popular sanction, sanction of public opinion, 
 sanction of honour, sanetionof the pains and pleasures of sympathy. 
 
 3rd. The pleasures or pains which may be expected fi-om the 
 action of the magistrate, in virtue of the laws, compose the poli- 
 tical sanction ; it may also be called the legal sanction. 
 
 4th. The pleasures or pains which may be expected in virtue 
 of the threats or promises of religion, compose the religious 
 
 A man's house is destroyed by fire. Is it in consequence ot 
 his imprudence ? — It is a pain of the natural sanction. Is it by 
 the sentence of a judge? — It is a pain of the political sanction. 
 Is it by the malice of his neighbours ? — It is a pain of the popu- 
 lar sanction. Is it supposed to be the immediate act of an offended 
 Divinity? — In such a case it would be a pain of the religious 
 sanction, or, vulgarly speaking, a judgment of God. 
 
 It is evident from this example that the same sort of pains 
 belong to all the sanctions. The only difference is in the circum- 
 stances which produce them. 
 
 This classification will be very useful in the course of this work. 
 It is an easy and uniform nomenclature, absolutely necessary to 
 distinguish and describe the different kinds of moral powers, 
 those intellectual levers which constitute the machinery of the 
 human heart. 
 
 These four sanctions do not act upon all men iu the same 
 manner, nor with the same degree of force. They are sometimes 
 rivals, sometimes allies, and sometimes enemies. "When they 
 
PBINCIPLES OF LEGISIATXOIT. 29 
 
 agree, they operate with an irresistible power ; when they are in 
 opposition, they mutually enfeeble each other ; when they are 
 rivals, they produce uncertainties and contradictions in the con- 
 duct of men. 
 
 Four bodies of laws may be imasined, corresponding to these 
 four sanctions . Thg highest point of perfectio n would be reached 
 if these four cod^s constitute d but one. This perfection, however, 
 is as yet far distant, though it may not be impossible to attain it. 
 But the legislator ought always to recoUect that he can operate 
 directly only by means of the political sanction. The three 
 others must necessarily be its rivals or its allies, its antagonists or 
 its ministers. If he neglects them in his calculations, he will be 
 deceived in his results ; but if he makes them subservient to his 
 views, he will gain an immense power. There is no chance of 
 uniting them, except under the standard of utility. 
 
 The natural sanction is the only one which always acts ; the 
 only one which works of itself; the only one which is unchange- 
 able in its principal characteristics. It insensibly draws aU the 
 others to it, corrects their deviations, and produces whatever 
 uniformity there is in the sentiments and the judgments of men. 
 
 The popular sanction and the religious sanction are more 
 variable, more dependent upon human caprices. Of the two, the 
 popular sanction is more equal, more steady, and more constantly 
 in accordance with the principle of utility. The force of the 
 religious sanction is more unequal, more apt to change with times 
 and individuals, more subject to dangerous deviations. It grows 
 weak by repose, but revives by opposition. 
 
 In some respects the political sanction has the advantage of 
 both. It acts upon all men with a more equal force ; it is clearer 
 and more precise in its precepts ; it is surer and more exemplary 
 in its operations ; finally, it is more susceptible of being carried 
 to perfection. Its progress has an immediate influence upon the 
 progress of the other two ; but it embraces only actions of a cer- 
 tain kind ; it has not a sufficient hold upon the private conduct of 
 individuals; it cannot proceed except upon proofs which it is 
 often impossible to obtain ; and secrecy, force, or stratagem are 
 
30 PEINOIPLES OP lEGISIATlOir. 
 
 able to escape it. It ttus appears, from considering -what eacli 
 of these sanctions can effect, and what they cannot, that neither 
 ought to be rejected, but that all should be employed and directed 
 towards the same end. They are like magnets, of which the 
 virtue is destroyed when they are prfesehted' to each other by their 
 contrary poles, while their power is doubled when theiy are united 
 by the poles which correspond. 
 
 It may be observed, in passing, that the systems wiich^have 
 most divided men have been founded upon an exclusive preference 
 given to one or the other of these sanctions. Each has had its 
 partisans, who have wished to exalt it above the others. Each 
 has had its enemies, who have sought to degrade it by showing 
 its weak side, exposing its errors, and developing all the evUs 
 which have resulted from it, without making any mention of its 
 good effects. Such is the true theory of aU those paradoxes 
 which elevate nature against society, politics against religion, 
 region against nature and government, and so on. . ■ 
 
 Each of these sanctions is suscfeptible of error, that is to say, of 
 some applications contrary to the principle of utility.' But by 
 applying the nomenclature above explained, it is easy to indicate 
 by a single word the seat of the evU. Thus, for example, the 
 reproach which after the punishment of a criminal falls upon an 
 innocent family is an error of the popular sanction. The offence ' 
 of usury, that is, of receiving interest above the legal interest, is 
 an error of the political sanction. Heresy and riiagic' are errors 
 of the religious sanction. Certain sympathies and antipathies are 
 errors of the natural sanction. The first germ of mistake exists 
 in some single sanction, whence it commonly spreads into the 
 others. It is necessary, in all these cases, to discover the origin 
 of the evil before we can select or apply the remedy. 
 
PBINCIPLES OF lEOISLAIION. 31 
 
 CHAPTEE VIII. " ■'■■ 
 
 The measure of Pleasures and Pains. 
 
 The sole object of tie legislator is to urieirease pleasures and to 
 preyent pains ; and for tiis purpose he ought to be ■well acquainted 
 with their respective values. As pleasures and pains are the 
 only instruments which he employs, he ought carefuUy to study 
 their power. 
 
 If we examine the vahte of a pleasure, considered in itself, and 
 in relation to a single individual, we shall find, that it depends 
 upon four circumstances, — 
 
 1st. Its intensity. 
 2nd. Its duration. 
 3rd. Its certainty. 
 4th. Its proximity. 
 The value of a pain depends upon the same circumstances. 
 
 But it is not enough to examine the value of pleasures and 
 pains as if they, were isolated and independent. Pains and 
 pleasures may have other pains and pleasures as their con- 
 sequences. Therefore, if we wish to calculate the tendency of an 
 act from which there results an immediate pain or pleasure, we 
 must take two additional circumstances into the. account, viz. — 
 5th. Its productiveness. 
 6th. Its purity. ' 
 A productive pleasure is one which is likely to be followed by 
 other pleasures of the same kind. 
 
 A productive pain is one which is likely to be fdUowed by 
 other pains of the same kind. 
 K pure p}easwre is one which is not likely to produce pains. 
 K pure pain is one which is not likely to produce pleasures. 
 "When the calculation is to be made in relation to a collection 
 of individuals, yet another element is necessary, — 
 
 7th. Its extent. 
 That is, the number of persons who are likely to find themselves 
 affected by this pain or pleasure. 
 
32 PBIVCIFLES OF LESISIATIOK. 
 
 Wlien we -wisli to value an action, we must follow in detail all 
 the operations above indicated. These are the elements of moral 
 calculation ; and legislation thus becomes a matter of arithmetic. 
 The evil produced is the outgo, the ffood which results is the 
 income. The rules of this calculation are like those of any other. 
 This is a slow method, but a sure one; while what is called 
 sentiment is a prompt estimate, but apt to be deceptive. It is 
 not necessary to recommence this calculation upon every occasion. 
 "Wlien one has become familiar with the process ; when he has 
 acquired that justness of estimate which results from it ; he can 
 compare the sum of good and of evil with so much promptitude 
 as scarcely to be conscious of the steps of the calculation. It is 
 thus that we perform many arithmetical calculations almost 
 without knowing it. The analytical method, in all its details, 
 becomes essential, only when some new or complicated matter 
 arises ; when it is necessary to clear up some disputed point, or 
 to demonstrate a truth to those who are yet unacquainted with it. 
 
 This theory of moral calculation, though never clearly ex- 
 plained, has always been followed in practice ; at least, in every 
 case where men have had clear ideas of their interest. What is 
 it, for example, that makes up the value of a landed estate ? Is 
 it not the amount of pleasure to be derived from it ? and does 
 not this value vary according to the length of time for which the 
 estate is to be enjoyed ; according to the nearness or the distance 
 of the moment when the possession is to begin ; according to the 
 certainty or uncertainty of its being retained ? 
 
 Errors, whether in legislation or the moral conduct of men, 
 may be always accounted for by a mistake, a forgetftdness, or a 
 false estimate of some one of these elements, in the calculation of 
 good , and eviL 
 
PBINCITLES OP LEGISUnOK. S3 
 
 CHAPTEE IX. 
 
 Sjjciion I. 
 
 Cireumatances which affect SemihiUty. 
 
 Alt, causes of pleasure do not giye the same pleasure to all ; 
 all causes of pain do not always produce the same pain. It is in 
 this that difference of sensibility consists. This difference is in 
 degree, or in kind : in degree, when the impression of a given 
 cause upon many indi-viduals is uniform, hut imequal ; in kind, 
 when the same cause produces opposite sensations in different 
 individuals. 
 
 This difference of sensihUity depends upon certain circum- 
 stances which influence the physical or moral condition of indi- 
 viduals, and which, being changed, produce' a corresponding 
 change in their feelings. This is an experimental fact. Things 
 do not affect us in the same manner in sickness" and in health, in 
 plenty and in poverty, in infancy and old age. But a view so 
 general is not sufficient ; it is necessary to go deeper into the 
 human heart, lyonet wrote a quarto volume upon the anatomy 
 of the caterpillar ; morals are in need of an investigator as patient 
 and philosophical. L have not courage to imitate Lyonet. I 
 shall think it sufficient if I open a new point of view — ^if I 
 suggest a surer method to those who wish to pursue this subject. 
 
 1st. The foundation of the whole is temperament, or the 
 original constitution. By this word I understand that radical and 
 primitive disposition which attends us from our birth, and which 
 depends upon physical organization, and the nature of the soul. 
 
 But although this radical constitution is the basis of all the 
 rest, this basis lies so concealed that it is very difficult to get at 
 it, so as to distinguish those varieties of sensibility which it 
 produces from those which belong to other causes. 
 
 It is the business of the physiologist to distinguish these tem- 
 peraments ; to follow out their mixtures ; and to trace their 
 effects. But these grounds are as yet too little known to justi^ 
 the moralist or legislator in founding anything upon them. 
 
 n 
 
I!4 PBKfCJPIES OF lEGISLATION. 
 
 2ncl. Eealih. — ^We can hardly define it except negatively. It 
 is the absence of aU sensation of paip. or. uneasiness of -which the 
 first seat can he referred to some part of the body. As to sensi- 
 bility in general, it is to be observed, that, when sick, we are less 
 sensible to the causes of pleasure, and more so to those of pain. 
 
 ' -3rd. Strength.— ;Thov^^h. conaeoted with health, this is a sepa- 
 rate circumstance,; since a man may .be feeble compared, with the 
 average., of men, and yet, not, be an invalid. The degree of 
 strength' may be measured exactly enough by the weight one can 
 lift, or in other ways. i?fe«Wewess is sometimes a negative term, 
 signifying the absence of strength.; sometimes a relative term, 
 signifying that such an individual is not so strong as such 
 another, with whom he is compared. 
 
 4th. Corporal Imperfections. — I mean some remarkable de- 
 formity; the want of some limb or some faculty which other 
 men enjoy. Its particular effects upon sensibility depend upon 
 the kind of imperfection. Its general effect is, to diminish more 
 or less agreeable impressions, and to aggravate those which are 
 painful. , . 
 
 ■ 5th. The degree of Knoieleige. — ,That is, the .amount of ideas 
 :Which an individual possesses of a na,ture calculated to exercise 
 an iiiifluenee upon his happiness, or that of others. The man of 
 knowledge is he who possesses many of these important ideas ; 
 the ignorant, he whPi has .buj; few,; and, .those few of minor 
 iijiportanee. , 
 
 6th. Strength of the Intellectual Faculties. — That is, the degree 
 pf facUity-in recaUiag ideas already acquired, or in acquiring new 
 ones. Different qualities pf mind may be referred to this head, 
 such as exactness of memory, capacity of attention, clearness of 
 discernment, vivacity of imagination, &c. , 
 , I 7th>. tFirmness of Soul. — This quality is attributed to a man 
 when he is less affected by immediate pleasures or pains, than by 
 greajt .pleasures or great p3.ins, which are distant or uncertain. 
 Turenne lacked firmness of soul when he was prevailed upoji by 
 the prayers of a woman to betray a state secret. The young 
 Lacedaemonians, who suffered themselves to be scourged to death 
 
PEINCIPLES OF lEGISLATIOlf, 3$ 
 
 ^efc^e tliG. altar of yDiana,, without uttering a single cry, proved 
 that tlie feaB of shamp s^ad the hope of glory had roore-influenee 
 oyer thepi than present pain, of , the most piercing kind.' - -.n 
 
 8th. Perseveranoe, — This; circumatanoe relates to the 'lenfUk 
 of time during which a.givien. motiye acts upon ithe wiU with a 
 oopftinuqusiforoe., iWe say of a man that he wants perseverance 
 ■jyhen, the motiye which makes him act loses all its force without 
 the happening qf any external ;event, or the occurrence of any 
 reason wjijcfe ought to weaken it j or when he is susceptihle; of 
 yielding by turns to. a great variety of -motives. It is thus that 
 children are dielighted with plajrthings, yeb soon grow tired of 
 them. ,, • 
 
 9th. The lent of Inclination. — The ideas we have previously 
 formed: of a pleasure or a pain, have a great influence upon the 
 manner in which we are affected,- when we come to experience 
 that pleasure fir that pain. The ■ iCffect does not always "answer 
 the expectation, though it commonly does so. The pleasure 
 ■whi(jh:resjjlt8;frQm theipossegsioR of a woman is not to be mea- 
 sured by her beauty, but by the passion of her lover. The incli* 
 na,txons of a man being knowp, we can calculate with. tolerable 
 certaifity the pleasure or the pain which a givenevent will cause 
 him.^' 
 
 - 10th. 'Ifbtions of.Sonmr. — Bj honow is meant that sensi* 
 bility to pains aujd pleasures, which spriings from the opinion of 
 9ther men; that is, from their esteem or their, contempt. i The 
 ,ideas,j0f ,hp?io.ur vary mijch with : nations; and withi individuals;, 
 so that it befioflses necessary to distiaguish, in' the first place, thp: 
 force of this motive, in the second place, its direction. 
 
 llthf. Notions of Meligion. -7-lt iis well known to what ai 
 degree the entire system i of sensibility may be affected by relit 
 gious ideas.; , It is at the birQi of a. religion that its greatest 
 effects appear,. }£ild,nations have. become bloody; pusillanimous 
 nations have grown bold;,,BlayeaJiaTe regained their freedom ;: 
 
 * ■ TKe four following caroiunstarices are only sub-divisions of this head ; 
 they are passions — that is, inclinations, considered in reference to cerfcairt 
 given pleasures and pains. • 
 
 s 2 
 
36 PEINCIPLES OV lESISLATIOlf. 
 
 and savages have submitted to the yoke of civilization. There 
 is not any cause which has produced such sudden and extraor- 
 dinary effects upon mankind. There is also an astonishing diver- 
 sity in the particular bias which religion gives to individuals. 
 
 12th. Sentiments of Sympathy. — I call synvpathy that dispo- 
 sition which makes us find pleasure in the happiness of others, 
 and compels us to share their pains. When this disposition 
 extends to a single individual only, it is caHeA friendship : when 
 it acts in relation to persons in pain, it is called pity or compas- 
 sion ; if it embraces an entire class of individuals, it constitutes 
 what is called esprit de corps, or party spirit; if it embraces a 
 whole nation, it is public spirit or patriotism ; if it extends to 
 all men, it is humanity. 
 
 But the kind of sympathy which plays the greatest part in 
 common life is that which binds the affections to certain fixed 
 individuals, such as parents, children, a husband, a wife, an inti- 
 mate friend. Its general effect is to augment the sensibility, 
 -whether to pains or pleasures. The individual acquires more 
 ' extension ; he ceases to be solitary ; he becomes collective. "We 
 ^«ee ourselves, so to speak, doubled in those we love ; and it is by 
 -J no means impossible to love ourselves better in these others 
 than in our actual self; and to be less sensible to the events 
 ^ which concern us, by reason of their immediate effect upon our- 
 r selves, than on account of their operation upon those connected 
 ■ with us ; to feel, for example, that the most bitter part of an 
 ; affliction is the pain it wiU cause our Mends, and that the 
 .-■greatest charm of personal success is the pleasure we shall take 
 lin their joy. Such is the operation of sympathy. These senti- 
 iments received and paid back, increase by coinmunication. 
 They may be compared to mirrors, so arranged as mutually to 
 transmit the rays of light, collect them in a common focus, and 
 produce an increase of heat by their reciprocal reflections. The 
 force of these sympathies is one of the reasons which has made 
 legislators prefer married men to bachelors, and fathers of a 
 family to those who have no children. The law has more power 
 over those who expose a greater surface to its operations. Such 
 
PEINCIPLE8 OF LEGISLATION. 37 
 
 men, through an interest in the happiness of those who are to 
 succeed them, look to the future as well as the present ; while 
 men who have not the same ties are satisfied with a transitory- 
 possession. 
 
 "With regard to the sympathy whibh the paternal relation pro- 
 duces, it may be sometimes observed to act independently of any 
 affection. The honour acquired by the father extends to the son ; 
 the disgrace of the son spreads back to the father. The members 
 of a family, although disunited by interest and inclination, have 
 a common sensibility for all that appertains to the honour of 
 each. 
 
 13th. Antipathies. — These are the reverse of those expansive 
 and affectionate sentiments, of which we have been speaking. 
 It is fortunate that the sources of sympathy are constant and 
 natural ; they are found everywhere, at all times, and under aU 
 circumstances; while antipathies are accidental, and of course 
 transitory. They vary according to times> places, events, and 
 persons ; and they have nothing fixed nor determinate. StiU|, 
 these two principles sometimes coalesce and act together. Hu- 
 manity makes us hate the inhuman ; friendship renders us hos- 
 tile to the adversaries of our friends ; and antipathy itself becomes 
 a cause of imion between two persons who have a common 
 enemy. 
 
 1 4th. Folly, or Disorder of Mind. — Imperfections of mind may 
 be reduced to ignorance, feebleness, irritability, and inconstancy. 
 What is called folly is an extraordinaiy degree of imperfection, 
 as striking to all the world as the most obvious corporal defect. 
 It not only produces, aU the imperfections above mentioned, and 
 carries them to excess ; but, in addition, it gives an absurd and 
 dangerous turn to the inclinations. 
 
 The sensibility of a maniac becomes extreme upon a certain 
 point, while in other respects it is quite benumbed. He seems 
 to have an excessive distrust, a hurtful malignity, a cessation of 
 every sentiment of benevolence ; he has no respect for himself 
 nor for others; he braves all decorum and propriety; he is not 
 insensible to fear, nor to good treatment — he yields to firmness' 
 
38 PKnfCrPlES OF UBGISIATIOlf. 
 
 at the same time that mildness makes him tractable ; but he has 
 hardly any regard for the future, and can only be acted upon by 
 immediate means. 
 
 15th. Pecuniary Circumstanees. — They consist of the sum 
 total of means, compared with the sum total of wants. Means 
 comprise, Isty property, that which is possessed independently of 
 labour;, 2nd, the profits of labour; 3rd, the pecuniary aids which 
 we may expect from our relations and friends. 
 
 Wants depend upon four circumstances : 1 st. Habits of expense. 
 What is beyond these, habits is superfluity, what is within them 
 is privation. The greater part of our desires exist only ia the 
 recollection of some past enjoyment. 2nd. The persons with 
 whose support we are charged, either by the laws or by opinion, 
 children, poor relations, old servants. ' 3rd. Unexpected wants. 
 Afgiven sum may.have amuoh greater value at one moment than 
 another; if it is needed, for instance, for an important lawsuit, 
 or for a journey upon which the fate of a family depends. 4th. 
 i^xpectations of a profit, of an inheritance, &,c. It is evident that 
 the hopes of fortune, in proportion to their force, are true wants; 
 and that their loss may affect us almost as much as that of a pro- 
 perty abeady ia possession. 
 
 Section II. 
 Secondary Circumstances which affect Sensibility. 
 
 Authors who have wished to account for differences of sensi- 
 bility have ascribed them to circumstances of which no mention 
 has yet been made, viz., sex, age, rank, education, habitual occu- 
 pations, climate, race, government, religion — circiunstances all 
 very apparent, very easy to observe, and very convenient for 
 explainiQg the different phenomena of sensibility. StiU, they are 
 but secondary circumstances ; I mean that in themselves they are 
 not reasons, but must be explained by the circumstances described 
 in the first section, which are here represented and combined ; 
 each secondary circumstance containing in itself many primary 
 
HtlNCIPIES OF lEGISLATlON. 33 
 
 circumstances. As a matter of cbliTenieiice;' we spekk of tte 
 influtoce Df 'sex upon sensibility ; including ia tHat single' plrasl 
 all tlie primary circumstances of stfengthy knowledge, firnmess of 
 soul, perseverance, ideas of honour, sSentitnents- of sytopatltyj' &c; 
 Bo we speak of the influence of rank ? — ^We mean by it a certain 
 assemblage of primary circumstatices, s1ich as 'the degree of know- 
 ledge, ideas of honour, connections of family*,' habitual'dfefcupatiOliSi 
 pecuniary circumstances, * It is the same 'With M theotherSl 
 Uaeh of these'-seoOndary' circumstances inay'b'e trsinSlkfed by a 
 certain number lof ■ the primary. This distinction, though esseiir 
 tial, has not yet been analyzed. Let us pasB to a inore particular 
 examination; '• > . ••(■■■:■ ; '/ 
 
 • Ist. Sex. — The sensibility of women seenls to be ^§ater than 
 that of meti. Their health is niore delioateC' They are generally 
 inferior in strength of body; knowledge, the ifitelleotiiarfaoulties, 
 and 'firmness of soul. Their moral and 'feligious 'sensibility is 
 more lively; sympathies and antipathies' have a greater empire 
 over them. The honour of 'a woman consists mdre id modesty 
 and chastity ; that of mian in probity and coitrage. 'The religion 
 of a woman mote easily 'deviates towards- 'superstition ; that is, 
 towards minute observances-.' Her affections for her o'vra -children 
 are stronger during their whole life^ and especially during their 
 early youth. "Women are more compassionate for those whose 
 sufferings they see ; and the' very pains they take to relieve them 
 form a- new bond of attachment. But their beiievdienijei's locked 
 up in a narrower circle, and is less governed by thfe- principle of 
 ' utility. It is rare that they embrace in their affections the well- 
 being of their country, much less that of mankind; and the 
 interest which they take • in a party depends almost always upon 
 some Jirivate sympathy. ' There enters into fell theit attachments 
 and antipathies more of caprice and imagination ; -while men have 
 more regard to personal interests or public utility. Their habitual 
 amusements are more quief and sedentaiy. On the whole, 
 woman is better fitted for the family, and man for matters out of 
 doors. The domestic economy is best placed in the hands of the 
 women ; the principal management of affairs in those of the men. 
 
40 PEIIfCIPIES OP lEGISLAIION. 
 
 2nd. Age. — ^Each period of life acts differently upon sensibility; 
 but it is extremely difficult to state particulars, since the limits 
 of the different ages vary with individuals, and, in fact, ara 
 arbitrary with regard to all. In considering infancy, adolesc- 
 ence, youth, maturity, decline, and decrepitude as divisions of 
 human life, we can only speak of them vaguely, and in general 
 terms. The different imperfections of mind, which we harve 
 mentioned, are so striking in infancy, thatit needs a vigilant and 
 constant -protection. The affections of adolescence and early 
 youth are prompt and lively, but are seldom governed by the 
 principle of prudence. The legislator is obliged to protect this 
 age from the errors into which the want of experience or the 
 vivacity of the passions are apt to lead it. As to decrepitude, in 
 many respects it is only a return to the imperfections of infancy. 
 
 3rd. Banh — This circumstance depends so much for its effects 
 upon the political constitution of states, that it is almost impos- 
 sible to announce any proposition with respect to it which is 
 universally true. In general it may be said that the amount of 
 sensibility is greater in the upper ranks than in the lower ; the 
 ideas of honour in particular are more predominant. 
 
 4th. Education. — Health, strength, robustness, may be referred 
 to physical education; to intellectual education belong the amount 
 of knowledge, its kind, and, to a certain degree, firmness of soul, 
 and perseverance ; to moral education appertain the bent of the 
 inclinations, the ideas of honour and religion, the sentiments of 
 sympathy, &3. To education in general may be referred the 
 habitual occupations, amusements, attachments, habits of expense, 
 and pecuniary resources. But when we speak of education, we 
 ought not to forget that its influence in all these respects is so 
 modified, either by a concurrence of external circumstances or by 
 natural disposition, that it is often impossible to calculate its 
 effects. 
 
 5th. Sabitual occupations, whether of profit or of amusement 
 and choice. They influence all the other causes — ^health, strength, 
 knowledge, inclinations, ideas of honour, sympathies, antipathies, 
 fortune, &c. Thus we see common traits of character in certain 
 
FBINCIPLES OF LEaiSLAIION. 41 
 
 professions, especially in those whicli constitute a class or con- 
 dition, such as ecclesiastics, soldiers, sailors, lawyers, magis- 
 trates, &c. 
 
 6th. Climate.— 'Formerly too much was attributed to this cause ; 
 it has since been underrated. What renders this examination 
 difficult, is the circumstance that a comparison of nation with 
 nation can only be made as to some great facts, which may be 
 explained in different ways. It seems to be proved that in warm 
 climates men are less strong, less robust ; they have less need to 
 labour, because the earth is more fertile ; they are more inclined 
 to the pleasures of love, a passion which in those latitudes mani- 
 fests itself earlier, and with more ardour. All their sensibilities 
 are quicker ; their imagination is more lively ; their spirit is more 
 prompt, but less vigorous and less persevering. Their habitual 
 occupations announce more of indolence than of activity. They 
 have probably at their birth a physical organization less vigorous, 
 and a temperament of soul less firm and less constant. 
 
 7th.. £aee. — A negro bom in France or England is in many 
 respects a different being from a child of the French or English 
 race. A Spanish child bom in Mexico or Peru at the hour of its 
 birth is very different from a Mexican or Peruvian child. The 
 race may perhaps have an influence upon that natural disposition, 
 which serves as a foundation for all the rest. Afterwards it 
 operates much more sensibly upon the moral and religious bias, 
 upon the sympathies and antipathies. 
 
 8th. Government. — This circumstance exercises an influence of 
 the same sort with that of education. The magistrate may be 
 considered as a national instructor; and under a vigilant and 
 attentive government the particular preceptor, even the father 
 himself, is but a deputy, a substitute for the magistrate, with this 
 difference, that the authority of the father has its limit, while 
 that of the magistrate extends through the whole life. 
 
 The influence of this cause is immense ; it extends to almost 
 everything ; in facty it embraces everything except temperament, 
 race, and climate ; for even health may depend upon it in many 
 respects, bo far as relates to regulations of police, the abundance 
 
42 PEINCrPLES OF lESISlATIOIT. 
 
 of provisions, and the. removal of apparent causes of '-disease. 
 The method of education, the plan .folio-wed in the, dispgssl of 
 offices, and the scheme of rewards and punishments, will deter? 
 mine in a great measure the physical and moral qualities of a 
 nation. 
 
 Tinder a government well constituted, or only weU admini^ered, 
 though with a bad constitution, it will be seen that men are 
 generally more governed by honour, and that- honour is placed in 
 actions more conformed to public utility. Eeligious sensibility 
 will be more exempt from fanaticism and intolerance, more free 
 from superstiti'on and servile reverence. A common sentiment 
 of patriotism springs up. Men perceive the existence r of /a 
 nationar interest. Enfeebled factions wUl see ancient '.rallying ( 
 signs losing their.power. The popular- affection will be rather 
 directed towards the magistrate than towards the heads, of a 
 party, and towards the whole country rattier than towards any- 
 thing else. Private revenge will neither be protracted, nor wiU. 
 it spread through Society; the national taste will be 'diEected 
 towards useful expenses, such as voyages of discovery,, the per- 
 fecting of agriculture, improvements in the • sciences, and. the 
 embellishment of the country. There wiU be perceptible, even in 
 the productions of' human genius, a general disposition to discuss 
 with calmness important questions, of publie good., 
 
 9th. Meligious Profession.-^We may derive from this source 
 pretty clear indications with respect to religious, sensibility, 
 sympathy, antipathy, and the ideas of honour and virtue. In 
 certain cases we may even .judge of the inteU^ence,. the strength 
 or weakness of mind, and the disposition of an individual from 
 the sect to which he belongs. I admit thatr it is common to 
 profess in pubHo, from motives, of convenience or jgood breeding, 
 religious opinions which are not very sincerely, entertained 
 But in these cases the influence of religious profession, though 
 weakened, is not destroyed. Early habits, the ties of society, 
 the power of example^ continue to operate even after the prin- 
 ciple upon which they are founded ceases to exist. ' 
 
 The man who at heart has ceased to -be a Jew, a Quaker, an 
 
PUXKCIIPLES OF LEeiSLAIIOX. 43 
 
 Anabaptist, a Calvinist, or a Luthepan> -will still be apt to -retain 
 a partiality for tbose of the denominditi-on. to wHcli be nominally 
 belongs, and a corresponding antipathy for those of every other. 
 
 Seotiok III. 
 Practical apjpUcatfon of this, Theory. 
 
 We cannot calculate the motion of a vessel without .knowing 
 the circumstances which influence her sailing, such as the force 
 of the widd, tb« resistance of the water, the model of the huU, 
 the weight of the, lading, &c. In like manner we cannot operate 
 with any certainty upon a question of legislation without con^ 
 sidering all the circumstances which affect the sensibility. 
 
 I confine myself here to what concerns thepenalcode.,.. In all 
 its. parts a scrupulous attention to thi* diversity of circumstances 
 is necess9,ry. > 
 
 1st. To ascertain the JTml. of an Offence. — The same nominal 
 offence is not in fact the same real offence, when the sensibility 
 of the injured individual is not the same. > An action, for.example, 
 might be a serious insult to a woman, whiehto a man would be 
 whoUy indifferent. A corporal, injury, which, if done to an 
 invalid, woul^ put his life in danger, would-be of little com- 
 parative consequence to a man in full health. An imputation 
 which might ruin the honour or the fortune, of one individual 
 might do no harm to another. 
 
 2nd. To give a proper Satisfaction to the Individual injured. — 
 "Where the sensibility iS' different, the same nominal satisfaction 
 is not the same real satisfaction. A pecuniary satisfaction for an 
 a&ont might be agreeable or offensive, according to. the rank of 
 the person affronted, according to his fortune, or according to pre- 
 vailing prejudices. Am I insulted? — my pardon, publioly asked, 
 would be a sufficient satisfaction on the part of my superior^ or 
 my equal ; but not so on the pait of my inferior. 
 
 3rd. To estimate the force of Funishments and their Impression 
 upon Delinquents. — When the sensibility is essentially different. 
 
44 FSIXCIFLES OF LEGISLATION. 
 
 the same nominal punishment is not the same real punishment. 
 Exile is not the same thing to a young man and to an old man; 
 to a bachelor and to the father of a family; to an artisan who has 
 no means of subsistence out of his country, and to a rich man 
 ■who would only find himself obliged to change the scene of his 
 pleasures. Imprisonment would not be an equal punishment for 
 a man and for a woman, for an invalid and for a person in health; 
 for a rich man whose family would not suffer in his absence, and 
 for one who lives only by his labour, and who would leave his 
 children in distress. 
 
 4th. To transplant a Law from one Country to another. — The 
 same verbal law would not be the same real law, if the sensibility 
 of the two nations was essentially different. A law on which 
 depends the happiness of European families, transported into 
 Asia, would become the scourge of society. Women in Europe 
 are accustomed to enjoy liberty, and even a sort of domestic 
 empire ; women in Asia are prepared by their education for the 
 imprisonment of the seraglio, and even for servitude. Marriage 
 is not a contract of the same kind in Europe and in the East; 
 and, if it'vere submitted to the same laws, the unhappiness of aU 
 parties would certainly ensue. 
 
 The same punishments, it is said, for the same offences. _ This 
 adage has an appearance of justice and impartiality' which seduces 
 the superficial observer. To give it a reasonable sense, we must 
 determine beforehand what is meant by the same punishments 
 and the same offences. An inflexible law, a law which should 
 regard neither age, nor fortune, nor rank, nor education, nor the 
 moral and religious prejudices of individuals, would be doubly 
 vicious, at once inefficacious and tyrannical. Too severe for one, 
 too indulgent for another ; always failing through excess or de- 
 ficiency; under the appearance of equality, it conceals an in- 
 equality the most monstrous. 
 
 "When a man of great wealth, and another of a moderate con- 
 dition, are condemned in the same fine, is the punishment the 
 same? Do they suffer the same evil? Is not the manifest 
 inequality of this treatment rendered yet more odious by its de- 
 
PBISCIPLES OP lEGISLATION. 45 
 
 lusive equality? And does not the law fail in its object; since 
 the one may lose all his resources of living, while the other pays, 
 and walks off in triumph ? Let a robust youth and a weak old 
 man be both condemned to wear irons for the same number of 
 years — a reasoner skilM in obscuring the most evident truths 
 might undertake to prove the equality of this punishment ; but 
 the people, who are little given to sophistry, the people, faithfiil 
 to nature and to sentiment, would feel an internal murmuring of 
 spirit at the sight of such injustice; and their indignation, 
 changing its object, would pass from the criminal to the judge, 
 and from the judge to the legislator. 
 
 There are some specious objections which I do not wish to dis- 
 semble. " How is it possible to take account of all the circum- 
 stances which influence the sensibility ? How can we appreciate 
 internal and secret dispositions, such as strength of mind, know- 
 ledge, inclinations, sympathies? How can we measure these 
 different qualities ? The father of a family, in the treatment of 
 his children, may consult these interior dispositions, these diver- 
 sities of character ; but a public instructor, though charged with 
 but a limited number of pupils, cannot do it. A legislator, who 
 has a numerous people in view, is obliged to confine himself stiU. 
 more to general laws ; and he is bound to take care how he in- 
 creases their complication by descending into particulars. If he 
 leaves to the judges the right of varying the application of the 
 laws according to the infinite diversity of circumstances and 
 characters, there will be nothing to restrain them from the most 
 arbitrary judgments. Under pretext of observing the true spirit 
 of the legislator, the judges will make the laws an instrument of 
 caprice or antipathy." 
 
 To aU this; there needs less an answer than an explanation ; 
 for it is rather an objection than a decisive attack. The principle 
 is not denied, but its application is thought to be impossible. 
 
 1st. I allow that the greater part of these differences in sensi- 
 bility cannot be appreciated ; that it would be impossible to prove 
 their existence in individual cases, or to measure their strength 
 and degree. But, happily, these interior and secret dispositions 
 
46 PEINCIPLE3 OF LEGISLATION. 
 
 tave certain outward and^ manifest indications. ; vThese are th.e 
 secondary circumstances above /enumeratedy viz., iex, (tge^ xmkj 
 race,' oUmate, governmenti edueation, religious .profession ; — ^paln 
 pable and evident circumstances, whioih represent interior dis- 
 positions. TM'- ' 1 ',■ 
 
 Thus tJie legislator is tdded- astetHe-most difficult- point. He 
 need not trouble bimself witb metaphysical or moral qualities ; 
 he may confine himself to circumstances' that are obvious. For 
 example, he directs a given: punishment to be modified, not in 
 proportion to the sensibilityjof the criminal, his perseverance, his 
 strength of mind, his knowledge,' &c,, but according to sex or age. 
 It is true that presumptions drawn from these circumstances are 
 liable to error. A child of fifteen may have more knowledge 
 than a man of thirty; an. individual woman may have more 
 courage or less modesty than an individual man ; but these pre- 
 sumptions are in general ju^t enough for the aroidance of tyran- 
 nical laws, and willbe sufficient to ''gain for the legislator the 
 suffrages of opinion. . ; 
 
 2nd. These secondary, circumstances are not only easy to 
 seize; but they are few in number> and they form general iclasses. 
 They furnish' grounds of justification j of extenuation, or of aggra- 
 vation. Thus the difficulty disappears, and simplicity pervades 
 the whole.' "■' "' '••'< '<'• ■ ''■■■ :i " ■ ' ' . ■ . ■ 
 
 3rd. In'this'there is nothirag-i arbitrary. < It is not- the judge, 
 it is the law which modifies such and such a punishment, accord- 
 ing to the sex, the age, the' religious profession. As to other 
 circumstances of which the examination must be -absolutely left 
 to the' judge, as the more or less oi derangementi of mind, the 
 more or less of strength, the more or less of fortune, the legislator, 
 who cannot decide upon individual cases, wiU direct the tribunals 
 by general rtiles'j and wilMeave them a ^certain latitude in order 
 that they may proportion theif judgment to the particular nature 
 of the circumstances. u., '. 
 
 What is here recommended is not a Utopian idea. There has 
 scarcely been a 'legislator so barbarous- or so stupid, as entirely 
 to neglect the circumstances which influence sensibility. A more 
 
pmNCIPLBS OS lEeiSLATIOK . 47 
 
 or less coijftseiisfeeling of ttem has guided, the establishmejit of 
 civil and, political rights 5 -aij4: more or -less? of regard to these 
 circumstanees has, always been 'Sho.w;B.ip. the, institution.of punish- 
 ments. Hence the .differences -wrhich have be.en admitted ,m the 
 ease of women, children, freemen, slavfes, soldiers, priests, &e. 
 
 -Brcioo seems to have been the only penal legislator who rejected 
 ,aE these ' considerations. .In hi^ viev-aU. crimes were equal, 
 .because they were all violations of the law. He condemned ajl 
 ■delinquents to death,, without i distinction. He ..confounded, he 
 overturned all principles of human seissibility. ,j His horrible work 
 .enduredbut a short time /nor is it probable .that, his laws were 
 ever literally followed. 'Without falling into this extreme, how 
 many faults of the same kind have been committed ? I should 
 never finish were I to cite examples. It is notorious that "there 
 have been sovereigns who haye preferred to lose provinces, and 
 to make blood flow iu streams, rather than humour a particular 
 sensibility, rather than tolerate a custom indifferent in itself, 
 rather than respect an ancient prejudice in favour of a certain 
 dress, or a. eertain fonn, of prayer, .,,. 
 
 A prince of our -times,^ active, enlightened, and animated by 
 the desire of glory, and a wish to. promote th^ happiness' of his 
 subjects, undertook to reform everything. in his territories 1; and, 
 iu so doing, excited all to oppose him. On the eve of his death, 
 recalling aU the vexations he had experienced, he vnshedit to be 
 inscribed upon his tomb, that he had been unfortunate in all his 
 enterprises. It would have been well to add^ for the instruction 
 of posterity j that he' had never known how to respect and to 
 humour the prejudices, the inclinations, the sensibilities of men. 
 
 "Wtien a legislator studies the human heart, when he makes 
 provision for the different degrees, the different kinds of sensi- 
 bility, by exceptions, limitations, and mitigations, these tempera- 
 ments of power charm us as a paternal condescension. It is the 
 foundation of that approval which we give to the laws, under the 
 names, a little vague it istrue, of humanity, equity, adaptation, 
 moderation, wisdom. 
 
 * Joseph II. of Austria. 
 
48 PHiirciPij;s op iegislation. 
 
 We may here discover a striking analogy between the art of 
 the legislator and that of the physician. A catalogue of circum- 
 stances -which influence sensibility, is alike necessary to these 
 two sciences. That which distinguishes the physician from the 
 empiric, is an attention to everything which constitutes the par- 
 ticular state of the individual. But it is especially ia maladies 
 of the soul, in those where the inoral nature is affected, and 
 where it is necessary to surmoimt injurious habits and to form 
 new ones, that it is necessary to study everything which influ- 
 ences the disposition of the patient. A single error here may 
 change eSl the results, so that what were intended as remedies, 
 may prove to be aggravations. 
 
 CHAPTER X. 
 
 Analym of Political Good and Evil. — How they are diffused 
 through Society. 
 
 It is with government as with medicine ; its only business is the 
 choice of evils. Every law is an evil, for every law is an in- 
 fraction of liberty. Government, I repeat it, has but the choice 
 of evils. In making that choice, what ought to be ^e object of 
 the legislator ? He ought to be certain of two things : Ist, that 
 in every case the acts which he undertakes to prevent are really 
 evils ; and, 2nd, that these evils are greater than those which he 
 employs to prevent them. 
 
 He has then two things to note — the evil of the offence, and 
 the evil of the law ; the evil of the malady, and the evil of the 
 remedy. 
 
 An evil seldom comes alone. A portion of evil can hardly fall 
 upon an individual, without spreading on every side, as from a 
 centre. As it spreads, it takes different forms. "We see an evil 
 of one kind coming out of an evil of another kind ; we even see 
 evil coming out of good, and good out of evil. It is important 
 to know and to distinguish all these kinds of evil, for in this the 
 very essence of legislation consists. But, happily, these modifi- 
 
pnnrciPLES of lEaisLiiiosf. 49 
 
 cations are few in number, and their differences are strongly- 
 marked. Three principal distinctions, and two sub-divisions, 
 will be enough to solve the most difficult problems. 
 
 Miil of the first order. 
 
 Eoil of the second order. 
 
 Ikil of the third order. 
 
 Primitive Dvil — Derivative Evil. 
 
 Immediate Evil — Consequential Evil. 
 
 Extended Evil — Divided Evil. 
 
 Permanent Evil — Evanescent Evil. 
 These are the only new terms which it wiU. be necessary to 
 employ to express the variety of forms which evil may take. 
 
 The evil resulting from a bad action may be divided into two- 
 principal parts : — 1st, That which falls immediately upon such 
 and such assignable individuals, I call evil of thefvrst order; 2nd, 
 That which takes its origin in the first, and spreads through the 
 entire community, or among an indefinite number of non-assign- 
 able individuals, I call efoil of the second order. 
 
 Evil of the first order may be distinguished into two branches, 
 viz., 1st, the primitive evil, which is peculiar to the individual 
 injured, to the first sufferer — the 'person, for example, who is 
 beaten or robbed ; 2nd, the derivative evil, that which falls upon 
 certain assignable individuals, as a consequence of the primitive 
 evU, by reason of some relation between them and the first suf- 
 ferer, whether it be a relation of personal interest or merely of 
 sympathy. 
 
 Evil of the second order may also be distinguished into two 
 branches : 1st, alarm; 2nd, danger. Alarm is a positive pain, a 
 pain of apprehension, the apprehension of suffering the same evil 
 which we see has abeady fallen upon another. Danger is the- 
 probability that a primitive evU vpiU produce other evils of the- 
 same kind. 
 
 These two branches of evil are closely connected, yet they are 
 so distinct as to be capable of a separate existence. There may 
 be alarm where there is no danger, there may be danger where 
 there is no alarm. We may be frightened at a conspiracy pursly 
 
so .PHINGIPLES OP LEGISLATIOlf. 
 
 imaginarj-j, we may remain secure in the midst of a conspiracy- 
 ready to break ont. i^ut, commonly, alarm and danger go 
 together, as natural effects of the same cause. The evil that has 
 happened makes us anticipate other evils of the same kind, by 
 rendering them probable. The evil that has happened produces 
 danger; danger produces alarm. A bad action is dangerous as an 
 example ; it prepares the way for other bad actions — 1st, By sug- 
 gesting the idea of their commission ; 2nd, By augmenting the 
 force of temptation. 
 
 Let us follow the train of thought which may pass in the mind 
 of an individual when he hears of a successftil robbery. Perhaps 
 he did not know of this means of subsistence, or never thought of 
 it. Example acts upon him like instruction, and gires him the 
 first idea of resorting to the same expedient. He sees that the 
 thing is possible, pi^ovided it be well managed ; and, executed by 
 another, it appears to him less difficult and less perilous than it 
 really is. Example is a track which guides him. along where he 
 never would have dared to be the first explorer. Such an example 
 has yet another effect upon him, not less remarkable. It weakens 
 the strength of the motives which restrain him. The fear of the 
 laws loses a part of its force so long as the culprit remains un- 
 punished; the fear of shame diminishes in the same degree, 
 iDecause he sees accomplices who afford him an assurance against 
 the misery of beiag utterly despised. This is so true, that 
 ■wherever robberies are frequent and unpxmished, they are as little 
 a matter of shame as any other means of acquisition. The early 
 '<3'reeks had no scruples about them ; they are gloried in by the 
 Arabs of the present day. 
 
 Let us apply this theory. You have been beaten, wounded, 
 insulted, and robbed. The amount of your personal sufferings, 
 so far as they relate to you alone, forms the primitive evil. But 
 you have friends, and sympathy makes them share your pains. 
 You have a wife, children, parents ; a part of the indignity which 
 you have suffered, of the affront to which you have been subjected, 
 faUs upon them. You have creditors, and the loss you have 
 e^erienoed obliges them to wait. AH these persons suffer a less 
 
■PHINCrPLES OP LESISIATIOIT. 51 
 
 or greater' btU, derivative from yoiors; and these two portions of 
 evil, yours' and theirs, compose together the &vil of the^first ordei^ 
 
 But this is not all. The newsof the robbery, with all its circum ■ 
 stances, spreads from mouth to mouth. An idea of danger springs 
 up, and ald/rm akrng with it. ' This alarm' is greater oi; less, 
 according to what is known of the character of 'the robbers, of 
 the personal injuries they have inflicted, of their means' and their 
 number; according as we are near the placfe or distant from it; 
 according to our strength and courage ; according to: our peculiar 
 circumstances, such' as travelling' alone, or with a family, carry- 
 ing little money with us, or being intrusted with valuable effects. 
 This danger and alarm constitute the evil of the second order. 
 
 If the evil which has been done to.you is of a nature to spread 
 of itself— fbr example, if you have been defaaiedby an imputa- 
 tion which envelops a class of individuals more or less nume- 
 rous, it is no longer an ' evil simply private, it ■ becomeB an 
 extended evil. It is augmented in proportion to the number of 
 those'who'participate in it. > ■ V - ' ;• 
 
 If the money of "which you were fobbed did not belong' to 
 you, but to a- society, oi' to the State, the loss would b© a divided 
 evil. This case differs from the former in the important circum- 
 stance, that here, the evil is diminished in: proportion to the 
 numbeik among whom' it is shared. 
 
 If, in consequence of' thSwoTind you have received, youisuffer 
 an additional evil distiuct from the- first,' -sucb as the abandone 
 ment of a lucrative business, the loss ^of a marriage, or the 
 ■Mlure to- obtain a profitable situation; that is a conseqmnticS, 
 eviL A jpermamnt evil is that which, once don^ cannot be 
 ■remediedy such as an irreparable personal iiijury, an amputation, 
 death; &o. An evanescent' evil is that which may jpass away 
 altogether, such as a wound which may be' healed, or a loss 
 which may be entirely made up. * ' 
 
 These distinctions, though partly new, ' are far from being use- 
 less: subtilties. jt ig only-by their means that we can appreciate 
 the differenoa of malignity in different : Offences, ' and regulate 
 accordingly the proportion of punishment. 
 
 E 3 
 
B2 PEINCIPLES OF LEGISIAIIOlf. 
 
 This analysis will famish us a moral criterion, a means of 
 decomposing human actions, as we decompose the mixed metals, 
 in order to discover their intrinsic value, and their precise 
 quantity of alloy. 
 
 If among bad actions, or those reputed to be so, there are some 
 which cause no alarm, what a difference between these actions 
 and those which do cause it ! The primitive evil affects but a 
 single individual ; the derivative evil can extend only to a small 
 number ; but the evil of the second order may embrace the whole 
 of society. Let a fanatic commit an assassination on account of 
 what he caUs heresy, and the evil of the second order, especially 
 the alarm, may exceed many million times the evil of the first order. 
 
 There is a great class of offences of which the entire evil con- 
 sists in danger. I refer to those actions which, without injuring 
 any particular individual, are injurious to society at large. Let 
 us take, for an example,,. an offence against justice. The bad 
 conduct of a judge, of an accuser, or a witness, causes a criminal 
 to be acquitted. Here is doubtless an evil, for here is a danger ; 
 the danger that impunity wiU harden the offender, and excite 
 him to the commission of new crimes ; the danger of encouraging 
 other offenders by the example and the success of the first. Still, 
 it is probable that this, danger, great as it is, will escape the 
 attention of the public, and that those who by the habit of refiec- 
 tion are capable of perceiving it, will not derive from it any 
 alarm. They do not fear to see it realized upon anybody. 
 
 But the importance of these distinctions can only be perceived 
 in their development. "We shall presently see a particular appli- 
 cation of them. 
 
 If we carry our views still further, we shall discover another 
 evU, which may result from an offence. When the alarm reaches 
 a certain point, and lasts a long time, the effect is not limited to 
 the passive faculties of man ; it extends to his active faculties ; 
 it deadens them ; it throws them into a state of "torpor and" de- 
 crepitude. Thus, when vexations and depredations have become 
 habitual, the discouraged labourer only works to save himself 
 from starvation ; he seeks in idleness the only consolation which. 
 
JEHfCIPLES OP LEGISLATIOlf. 53 
 
 his misfortunes allow ; industry fails with, hope, and brambles 
 gain possession of the most fertile fields. This branch of evU ii 
 the evil of the third order. 
 
 "Whether an evil happens by human agency, or whether it 
 results from an event purely physical, all these distinctions are 
 equally applicable. 
 
 Happily, this power of propagation and of diffusion does not 
 appertain to evil only. Good has the same prerogatives. Follow 
 an analogous division, and you will see coming out of a good 
 action, a good of the first order, divisible into primitive and deriva- 
 tive; and a good of the second order, which produces a certain 
 degree of confidence and security. 
 
 The good of the third order is manifested in that energy, that 
 gaiety of heart, that ardour of action, which remuneratory motives 
 alone inspire. Man, animated by this sentiment of joy, finds in 
 himself a strength which he did not suspect. 
 
 The propagation of good is less rapid and less sensible than that 
 of evil. The seed of good is not so productive in hopes as the 
 seed of evil is fruitful in alarms. But this difference is abun- 
 dantly made up, for good is a necessary result of natural causes 
 which operate always ,* while evil is produced only by accident, 
 and at intervals. 
 
 Society is so constituted that, in labouring for our particular 
 good, we -labour also for the good of the whole. "We cannot 
 augment our own means of enjoyment without augmenting also 
 the means of others. Two nations, like two individuals, grow 
 rich by a mutual commerce ; and aU exchange is founded upon 
 reciprocal advantages. 
 
 It is fortunate also that the effects of evU are not always evil. 
 They often assimie the contrary quality. Thus, juridical punish- 
 ments applied to offences, although they produce an evil of the 
 first order, are not generally regarded as evils, because they pro- 
 duce a good of the second order. They produce alarm and danger, 
 — ^but for whom ? Only for a class of evU-doers, who are volun- 
 tary sufferers. Let them obey the laws, and they wiU be exposed 
 neither to danger nor alarm. 
 
44 EEINCXPLES OP LEGISI.ATIOB'. 
 
 Wa, should never be able to subjugate, hove-^er imperfectly, 
 tbe vast empire of evil, had -we, not learned the method of com- 
 bating one evil by another. It has been necessary to= enlist 
 auxiliaries among pains, to oppose other pains which attack us on 
 every side,, So, in the art of curingi pains of another sort, poisons 
 vrell applied have proved to be remedies. ; • ■ 
 
 CHAPTER XI. 
 
 Seasons for erecting certaih Acts info Offences. 
 
 "We have made an analysis of evil, , That analysis shows us that 
 there are acts from which there results "more of evil than of good. 
 It is acts of this nature, or at lea^t acts reputed to be suoh^ that 
 legislators have prohibited. A prohibited act iswhat we call an 
 offence. To cause these prohibitions to be respected, it is_ neces- 
 sary to establish ^unuhments. i , 
 
 But is it necessOTyto erect certain acts into offences ?. or, in 
 other words, is it necessary to subject them to legal punishments ? 
 
 What a question! Is not all the world agreed on this matter ? 
 "Why seek to prove a truth universally acknowledged, and so 
 firmly rooted in the minds of men ? i 
 
 Doubtless, all the world is agreed upon this mp,tter. But on 
 what is their agreement founded r Ask Jiis reasons of every, man 
 who assents, and you will see a strange diversity of sentiments, 
 and principles ; and that not only among the people, but; ajnong 
 philosophers. WiU it be a waste of time to seek out some uniform 
 basis. of consent upon a subject so important? 
 
 The agreement which actually exists is only founded upon 
 prejudices, which vary accprding to times and places, customs 
 and opinions. I have alw3.ys been told that such an action is a 
 crime, and I think that it is so ; such is the guide of t^e people, 
 and even of legislators. But, if usage has erected innocent actions 
 into crimes ; if it has made trifling offences to be considered as 
 grave ones, and grave ones as trifling.; if it has varied every- 
 where, it is plain that usage ought to be subjected to some rule. 
 
PMNCIPLJiS OF LEGISLATION. 65 
 
 and ought not to be taken as a rule itself. Let us appeal, then, to 
 the principle of utility. It wiU confirm the decrees of prejudice 
 when they are just ; it will annul them when they are wrong. 
 
 I suppose myself a stranger to all the common appellations of 
 vice and virtue. I am called upon to consider human actions 
 only with relation to their good or bad effects. I open two 
 accounts ; I pass to the account of pure profit aU the pleasures, I 
 pass to the account of loss aU the pains: I faithfedly weigh the 
 interests of all parties. The man whom prejudice brands as 
 yiciousj and he whom it extols as virtuous, are, for the moment^ 
 equal in my eyes, I wish to judge prejudice itself; to weigh 
 aU. actions in a new balance, in order to form a catalogue of 
 those which ought to be permitted, and of those which .ought to 
 be forbidden. This operation, which appears at first so compli- 
 cated, is rendered easy by tl^e distinction between evils of the 
 first, second, and third orders. 
 
 Am I to examine an act which attacks the security of an 
 individual ? I compare all the pleasure, or, in other words, all 
 the profit, which results to the author of the act, with all the 
 evil, or all the loss, which results to the party injured. I see at 
 once that the evil of the first order surpasses the good of the first 
 or^der. But I do not stop there. The action under consideration 
 produces throughout, society danger and alarm. The evil which 
 at first was only individual spreads everywhere, under the form 
 ,of fear. The pleasure resulting from the action belongs solely to 
 the actor ; the pain reaches a thousand-^ten thousand — all. 
 This disproportion, already prodigious, appears infinite upon 
 passing to the evil of the third order, and considering that, if the 
 act in question is not suppressed, there wiU result from it a 
 imiversal and durable discouragement, a cessation of labour, andy 
 at last, the dissolution of society. 
 
 I will now run through the strongest of our desires, those 
 whose satisfaction is accompanied with the greatest pleasures; 
 and we shall see that, when brought about at the expense of 
 security, their gratification is much more fertile in evil than in good. 
 
 I. In the first place let us consider the passion of haired. 
 
56 PEINCIPLES OP LfeoIStAtlOlf. 
 
 This is tte most fruitiul cause of assaults upon the honour and 
 the person. I have conceived, no matter why, an enmity against 
 you. Passion bewilders me. I insult you ; I humble you ; I 
 ■wound you. The sight of your pain makes me experience, at 
 least for a time, a feeling of pleasure. But, even for that time, 
 can it be believed that the pleasure which I taste is equivalent 
 to the pain you suffer ? If every atom of your pain separately 
 painted itself in my soul, is it probable that each corresponding 
 atom of my pleasure would appear to have an equal intensity ? 
 In fact, only some scattering atoms of your pain present them- 
 selves to my troubled and disordered imagination. For you, 
 none is lost ; for me, the greater part is completely throvm away. 
 But this pleasure, such as it is, soon betrays its natural impurity. 
 Humanity, a principle not to be entirely quenched, even in the 
 most savage souls, wakes up a secret remorse. Ecars of every 
 kind, the fear of vengeance on your part, or on the part of those 
 connected with you; fear of pubUc disapprobation j and, if any 
 sparks of religion are left to me, religious fears; — fears of all 
 kinds come to trouble my security and to disturb my triumph. 
 Passion has died away, the pleasure of its gratification vanishes) 
 and an inward reproach succeeds. But on your side the pain 
 still continues, and may have a long duration. This is the ease, 
 even with trifling wounds, which time may cicatrize. How wiU. 
 it be when the injury is incurable in its nature ? — when limbs 
 have been maimed, features disfigured, or faculties destroyed? 
 Weigh the evils — their intensity, their duration, their conse- 
 quences ; measure them under all their dimensions, and you will 
 see that in every sense the pleasure is inferior to the pain. 
 
 Let us now pass to the effects of the second order. The news 
 of your misfortune instils the poison of feai- into every soul. 
 Every man who has an enemy, or who may have an enemy, con- 
 templates with terror what the passion of hate may inspire. 
 Among feeble beings, who have so much to dispute about, and so 
 many causes of mutual envy, among whom a thousand little 
 rivalries excite as many causeless hostilities, the spirit of revenge 
 holds forth a succession of endless evils. 
 
FBlirCIFLES OF lEBISLATION. 57 
 
 Thus, every act of cruelty produced by a passion, the principle 
 of which exists in every heart, and from -which everybody is 
 exposed to suffer, creates an alarm, which wiU continue until the 
 punishment of the culprit has transferred the danger to the sida 
 of injustice, and of cruel enmity. This alarm is a suffering 
 common to all ; and there is another suffering resulting from it, 
 which we ought not to forget,— that pain of sympathy felt by 
 generous hearts at the sight of such aggressions. 
 
 II. If we examine the actions which may spring from that im- 
 perious motive, that desire to which nature has mtrusted the per- 
 petuation of the species, we shall see that, when it attacks the 
 security of the person, or of the domestic condition, the good 
 which results fi-om its gratification cannot be compared to the 
 evil it produces. 
 
 I speak here only of that attack which manifestly compromits 
 the security of the person, viz., ravishment. It is useless by a 
 gross and puerile pleasantry to deny the existence of this 
 crime, or to diminish the horror of it. Whatever may be said, it 
 is certain that women the most prodigal of their favours do not 
 love to have them snatched by a brutal fury. But, in this case, 
 the greatness of the alarm renders all discussion of the primitive 
 evU unnecessary. However it may be of the actual offence, the 
 possible offence will always be an object of terror. The more 
 universal the desire which gives rise to this offence, the greater 
 and more violent is the alarm. In times when the laws have not 
 liad sufScient power to repress it, when manners have not been 
 sufficiently reg^ated to brand it, it produced acts of vengeance 
 of which history has preserved the recollection. Whole nations 
 have interested themselves in the quarrel ; and hatreds originating 
 in this source have been transmitted from fathers to their children. 
 It is possible that the close confinement of women, unknown 
 among the Greeks in the time of Homer, owes its origin to an 
 epoch of troubles and revolutions, when the feebleness of the 
 laws had multiplied disorders of this kind, and spread a general 
 terror. 
 
 III. With respect to the motive of cupidity, — if we compare 
 
PRINCIPLES OF THE CIVIL CODE. 
 
 INTRODUCTION. 
 
 BY DTTMONT. 
 
 Op all the branches of legislation, civil law is that -which has the 
 least attraction for those who do not study jurisprudence as a pro- 
 fession. But this is not saying enough. In fact, it inspires a 
 kittd of terror. Curiosity has for a long time been ardently ex- 
 ercised upon political economy, upon penal law, and upon the 
 principles of government. Celebrated works have given credit 
 to those studies ; and under the penalty of confessing an humbling 
 inferiority, it is necessary to have some information, and to ex- 
 press some opinions about them. But civil law has not yet come 
 out of the narrow enclosure of the bar. Its commentators sleep 
 iu the dust of libraries, by the side of its controversialists. The 
 public knows not even the names of its sects ; and regards vdth 
 a mute and ignorant respect those numerous folios, those 
 enormous compilations, ornamented with the pompous titles of 
 Bodies of Law, and Collections of Universal Jwrisprudence, 
 
 The general repugnance against this study results from the 
 manner in which it has been treated. The works above alluded 
 to bear the same relation to the science of law which was borne 
 to the natural sciences by the works of the scholastic writers, 
 before the introduction of experimental philosophy. They who 
 
PSINCIFLIiS OP THE CITIIi CODE. 89 
 
 attribute the dryness and obsourity of those works to the nature 
 of the subject, are altogether too indulgent. 
 
 "What is it of which this part of the law treats ? It treats of 
 everything that is most interesting to men : of their security ; of 
 their property ; of their mutual and daily transactions ; of their 
 domestic condition, in the relations of father, of children, of 
 husband, and of wife. Here it is that rights and obUgations 
 spring up ; for all the objects of law may be reduced, without 
 mystery, to these two terms. 
 
 The civil law is, in fact, only another aspect of the penal law ; 
 one cannot be understood without the other. To establish rights, 
 •is to grant permissions; it is to make prohibitions; it is, in one 
 word, to create offences. To commit a private offence is to 
 violate an obligation which we owe to an individual, — aright 
 which he has in regard to us. To commit a public offence is to 
 violate an obligation which we owe to the public, — aright which 
 the public has in regard to us. Civil law, then, is only penal 
 law viewed under another aspect. If I consider a law at the 
 moment when it confers a right, or imposes an obligation, this is 
 the civil point of view. If I consider a law in its sanction, in 
 its effects as regards the violation of that right, the breaking 
 through that obligation, that is the penal point of view. 
 
 What is to be understood lyj principles of civil law ? They are 
 the motives of laws ; the knowledge of the true reasons which 
 ought to guide the legislator in the distribution of the rights 
 which he confers, and the obligations which he imposes. 
 
 We might search in vain through the libraries of law books, for 
 a volume in which it has been attempted to found laws upon 
 reasons. The theory of civil laws by Linguet, promises much in 
 its title, which it is very far from performing. It is the produc- 
 tion of a disordered imagination, in the service of a bad heart. 
 The author wishes to reduce aU governments to the model of 
 oriental despotism, and to strike out of them aU notions of liberty 
 and humanity, — ^in his view mournful spectres, the sight of which 
 appears to torment him. 
 
 The disputes of jurisprudence have produced, among the 
 
60 PEIJTCIPLES OP LEGISLATION. 
 
 CHAPTER XII. 
 
 The Limits which separate Morals from Legislation. 
 
 MoKAiiix in. general is the art of directing the actions of men in 
 such a way as to produce the greatest possible sum of good. 
 
 Legislation ought to have precisely the same object. 
 
 But although these two arts, or rather sciences, have the same 
 end, they differ greatly in extent. All actions, whether public 
 or private, fall under the jurisdiction of morals. It is a guide 
 which leads the individual, as it were, by the hand through all 
 the details of his life, aU. his relations with his feILo\^s. Legis- 
 lation cannot do this ; and, if it could, it ought not to exercise a 
 continual interference and dictation over the conduct of men. 
 
 Morality commands each individual to do all that is advan- 
 tageous to the community, his own personal advantage included. 
 But there are many acts useful to the community which legisla- 
 tion ought not to command. There are also many injurious 
 actions which it ought not to forbid, although morality does so. 
 In a word, legislation has the same centre with morals, but it has 
 not the same circumference. 
 
 There are two reasons for this difference : 1st. Legislation can 
 have no direct influence upon the conduct of men, except by 
 punishments. Now these punishinents are so many evils, which 
 are not justifiable except so far as there results from them a 
 greater sum of good. But, in many cases in which we might 
 desire to strengthen a moral precept by a punishment, the evil of 
 the punishment would be greater than the evil of the offence. 
 The means necessary to carry the law into execution would be of 
 a nature to spread through society a degree of alarm more injurious 
 than the evil intended to be prevented, 
 
 2nd. Legislation is often arrested by the danger of overwhelm- 
 ing the innocent in seeking to punish the gxulty. "Whence comes 
 this danger ? I"rom the difficulty ef defining an offence, and 
 giving a clear and precise idea of it. Por example, hard-hearted- 
 ness, ingratitude, perfidy, and other vices which the popular 
 
PfilNCIPEES OF LEGISLiTION. 61 
 
 sanctioiipuiiiBhes, cannot come under the power of tie law, unless 
 they are defined as exactly as theft, homicide, or peijury. 
 
 But, the better to distinguish the true limits of morals and 
 legislation, it will be weU to refer to the common classification of 
 moral duties. 
 
 Private morality regulates the actions of men, either in that 
 part of their conduct in which they alone are interested, or in 
 that wluch may affect the interests of others. The actions which 
 affect a man's individual interest compose a class called, perhaps 
 improperly, duties to ourselves ; and the quality or disposition 
 manifested in the accomplishment of those duties receives the 
 name of prudence. That part of conduct which relates to others 
 composes a class of actions called duties to others. Now there are 
 two ways of consulting the happiness of others : the one negative, 
 abstaining from diminishing it ; the other positive, labouring to 
 augment it. The first constitutes probity ; the second is leneji- 
 cenee. 
 
 Morality upon these three points needs the aid of the law; 
 but not in the same degree, nor in the same manner. 
 
 I. The rules of prudence are almost always sufficient of them- 
 selves. If a man fails in what regards his particular private 
 interest, it is not his will which is in fault, it is his understand- 
 ing. If he does wrong, it can only be through mistake. The 
 fear of hurting himself is a motive of repression sufficiently 
 strong ; it would be useless to add to it the fear 'of an artificial 
 pain. 
 
 Does any one object, that facts show the contrary? That 
 excesses of play, those of intemperance, the illicit intercourse 
 between the sexes, attended so often by the greatest dangers, 
 are enough to prove that individuals have not always sufficient 
 prudence to abstain from what hurts them ? 
 
 Confining myself to a general reply, I answer, in the first place, 
 that, in the greater part of these cases, punishment would be so 
 easily eluded, that it would be inefficacious ; secondly, that the 
 evil produced by the peiial law would be much beyond the evil 
 of the offence. 
 
62 PHINOIPLES OF I^EGISIiATIOlf. 
 
 Suppose, for example, that. a legislator should feel himself 
 authorized to undertake the extirpation' of drun-keiuiess aitd for- 
 nication by direct laws. He would have to hegiu by a multitude 
 of regulations. The first inconvenience -would therefore be a 
 complexity of laws. The easier it is to conceal these vices, the 
 more necessary it would be to resoit to severity of punishment, 
 in order to destroy by the terror of examples the constantly re- 
 curring hdpe of impunity. This excessive rigour of laws forms 
 a second inconvenience not less grave than the first. The diffi- 
 culty of procuring proofs would be such, that it would be neces- 
 saiy to encourage informers, and to entertain an army of spies. 
 This necessity forms a third iuconvenience, greater than either of 
 the others. Let us compare the results of good and evil. Ofiences 
 of this nature, if that name can be properly given to imprudences, 
 produce no alarm ; but the pretended remedy would spread a uni- 
 versal terror ; innocent or guilty, every one would fear for him- 
 self or his connexions ; suspicions and accusations would render 
 society dangerous; we should fly from it; we should involve 
 ourselves in mystery and concealment; we should shun all the 
 disclosures of confidence. Instead of suppressing one vice,, the 
 laws would produce other vices, new and more dangerous. . 
 
 It is true that example may render certain excesses contagious ; 
 and that an evil which would be almost imperceptible, if it acted 
 only upon a small number of individuals^ may become important 
 by its extent. AH that the. legislator can do in refsrence to 
 ofiences of this kind is, to submit them to some slight punish- 
 ment in cases of scandalous notoriety. This will be sufficient to 
 give them a taint of illegality, which wiU es;cite the popular 
 sanction against them. * • : ; , 
 
 It is in cases of this kind that legislators have governed too 
 much. Instead of trusting to the prudence of individuals, they 
 have treated them like children, or slaves. They have suffered 
 themselves to be carried away by the same passion which has 
 influenced the founders of religious orders, who, to signalize their 
 authority, and through a littleness of spirit, have held their sub- 
 jects in the most abject dependence, and have traced for them. 
 
PEINCIPLES OP lESISLATION. 63 
 
 day by day, and moment by moment, their occupations, tbeir 
 food, their rising up, their lying down, and all the petty details 
 of their Hfe. There are celebrated codes, in -which are found a 
 multitude of clogs of this sort ; there are useless restraints upon 
 marriage ; punishments decreed against celibacy ; sumptuary 
 laws regulating the fashion of dress, the expense of festivals, the 
 furniture of houses, and the ornaments of women; there are 
 numberless details about aliments permitted or forbidden ; about 
 ablutions of such or such a kind ; about the purifications which 
 health or cleanliness require ; and a thousand similar puerilities, 
 which add, to all the inconvenience of useless restraint, that of 
 besotting the people, by covering these absurdities with a veil of 
 mystery, to disguise their folly. 
 
 Tet more unhappy are the States in which it is attempted to 
 maintain by penal laws a uniformity of religious opinions. The 
 choice of their religion ought to be referred entirely to the pru- 
 dence of individuals. If they are persuaded that their eternal 
 happiness depends upon a certain form of worship or a certain 
 belief, what can a legislator oppose to an interest so great ? It 
 is not necessary to insist upon this truth — it is generally acknow- 
 ledged ; but, in tracing tjie boundaries of legislation, I cannot 
 forget those which it is the most important not to overstep. 
 
 As a' general rule, the greatest possible latitude should be left 
 tp individuals, in all cases in which they can injure none but 
 themselves, for they are the' best judges of their own interests. 
 If they deceive themselves, it is to be supposed that the moment 
 they discover their error they will alter their conduct. The 
 power of the law need "interfere only to prevent them from 
 injuring each other. It is there that restraint is necessary ; it is 
 there that the application of punishments is truly useful, because 
 the rigour exercised upon an individual becomes in such a case 
 the security of all. 
 
 II. It is true that there is a natural connection between pru- 
 dence and probity ; for our own interest, well understood, wiU 
 never leave us without motives to abstain from iiijuring our 
 fellows. 
 
64 PRINCIPLES OF LEGISLATION. 
 
 Let UB stop a moment at this point. I say that, independently 
 of religion and the laws, we always have some natural motives — 
 that is, motives derived from our own interest for consulting the 
 happiness of others, 1st. The motive of pure benevolence, a 
 sweet and calm sentiment which we delight to experience, and 
 which inspires us with a repugnance to he the cause of suffering. 
 2nd. The motives of private affection, which exercise their empire 
 in domestic life, and within the particular circle of our intimacies. 
 3rd. The desire of good repute, and the fear of blame. This is a 
 sortof calculation of trade. It is paying, to have credit ; speaking 
 truth, to obtain confidence ; serving, to be served. It is thus we 
 must understand that saying of a wit, that, if there were no such 
 thing as honesty, it would he a good speculation to invent it, as a 
 means of making one' s fortune. 
 
 A man enlightened as to his own interest will not indulge 
 himself in a secret offence through fear of contracting a shameful 
 habit, which sooner or later wiU betray him ; and because the 
 having secrets to conceal from the prying curiosity of mankind 
 leaves in the heart a sediment of disquiet, which corrupts every 
 pleasure. All he can acquire at the expense of security cannot 
 make up for the loss of that ; and, if he desires a good reputation, 
 the best guarantee he can have for it is his own esteem. 
 
 But, in order that an individual should perceive this connection 
 between the interests of others and his own, he needs an en- 
 lightened spirit and a heart free from seductive passions. The 
 greater part of men have neither sufficient light, sufficient 
 strength of mind, nor sufficient moral sensibility to place their 
 honesty above the aid of the laws. The legislator must supply 
 the feebleness of this natural interest by adding to it an artificial 
 interest, more steady and more easily perceivei. 
 
 More yet. In many cases mo rality derives its existence from 
 the law; that is, to decide whether the action is morally good 
 or bad, it is necessary to know whether the laws permit or forbid 
 it. It is so of what concerns property. A manner of selling or 
 acquiring, esteemed dishonest in one country, would be irre- 
 proachable in another. It is the same with offences against the 
 
PfiDTCIPLES OP LDOISLAIION. £5 
 
 state. The state exists only by law, and it is impossible to say 
 what conduct in this behalf morality requires of us before kno-wing 
 what the legislator has decreed. There are countries where it is 
 an offence to enlist into the service of a foreign power, and others 
 in which such a service is lawful and honourable.* 
 
 III. As to benefic/fence some distinctions are necessary. The 
 law may be extended to general objects, such as the care of the 
 poor ; but, for details, it is necessary to depend upon private 
 morality. Beneficence has its mysteries, and loves best to employ 
 itself upon evils so unforeseen or so secret that the law cannot 
 reach them. Besides, it is to individual free-wiE that benevo- 
 lence owes its energy. If the same acts were commanded, they 
 would no longer be benefits, they would lose their attraction and 
 their essence. It is morality, and especially religion, which 
 here form the necessary complement to legislation, and the 
 sweetest tie of humanity. 
 
 However, instead 'of having done too much in this respect, 
 legislators have not done enough. They ought to erect into an 
 offence the refusal or the omission of a service of humanity when 
 it would be easy to render it, and when some distinct ill clearly 
 results from the refusal; such, for example, as abandoning a 
 wounded man in a solitary road without seeking any assistance 
 for. him; not giving information to a man who is ignorantly 
 meddling with poisons ; not reaching out the hand to one who 
 has fallen into a ditch from which he cannot extricate himself; 
 in these, and other similar cases, could any fault be foimd with a 
 punishment, exposing the delinquent to a certain degree of shame, 
 
 * Here we touch upon one of the most difficult of questions. If the 
 law is not what it ought to be j if it openly combats the principle of 
 utility ; ought we to obey it ? Ought we to violate it ? Ought we to 
 remain neuter between the law which commands an evil, and morality 
 which forbids it ? The solution of this question involves considerations 
 both of prudence and benevolence. We ought to examine if it is mors 
 dangerous to violate the law than to obey it ; we ought to consider 
 whether the probable evils of obedience are less or greater than the pro- 
 bable evils of disobedience. 
 
''€6 PfilSCIPLES OP LE&ISLATION. 
 
 or subjecting him to a-pecuiiiarjr responsibility for tbe evilwhicli 
 he might have prevented ? ■ ' ' '■ ' 
 
 I will add, that legislation might- be extended further than! it 
 is in relation to the interests of the inferior animals. I do not 
 approve the laws of the Hindus on this subject. There are 
 good reasons why animals should setve for the nourishment of 
 man, and for destroying those which incommode us. "We are the 
 better for it, and they are not the worse ; for they have not, as 
 we have, long and cruel anticipations of the future ; and the 
 death which they receive at our hands may always be rendered 
 less painful than that which awaits them> in the inevitable course 
 of nature. But what can be said to justify the useless torments 
 they are made to suffer ; the cruel caprices which are exercised 
 upon them ? Alnong the many reasons which might be given 
 for making criminal such gratuitous cruelties, I confine myself 
 to that which relates to mj^ subject. It is a means of cultivating 
 a general sentiment of benevolence, and of rendering men more 
 mUd; or at least of preventing that brutal depravity, which, 
 after fleshing itself upon animals, presently demands human 
 suffering to satiate its appetite.* 
 
 CHAPTER XIII. 
 False Metliods of Reasoning on the Subject of Legislation. 
 It has been the object of this introduction to give a clear idea of 
 the principle of utility, and of the method of reasoning conform- 
 able to that principle. There results from it a legislative logic, 
 which can be summed up in a few words. "What is it to offer a 
 "good reason with respect to a law? It is -to allege the good or 
 evil which the law tends to produce : so much good, so many argu- 
 ments in its favour ; so much evil, so many arguments against it ; 
 remembering all the time that good and evil ate liothing else 
 than pleasure and pain, 
 
 * See Sarrov^s Voyage to the Cape oj Oood Hope, for the crnelfcies of 
 the Dutch settlers toward their cattle and their slaves. 
 
PBDfCIPLES OF lEGISLATIOlT. 67 
 
 "WTiat is it t6 offer a false reason ? It is the aUeging for or 
 against a law something else than its good or evU effects. 
 
 Nothing can be more simple, yet nothing is more new. It is 
 not the principle of utility which is new ; on the contrary, that 
 principle is necessarily as old as the hnman race. All the truth 
 there is in morality, all the good there is in the laws, emaJiate 
 from it ; hut utility has often been followed by instinct, while it 
 has been combatted by argument. If in books of legislation it 
 throws out some sparks here and there, they are quickly extin- 
 guished iu the surrounding smoke. Beccaeia is the only writer 
 who deserves to be noted as an exception ; yet even in his work 
 there is some reasoning drawn from false sources. 
 
 It is upwards of two thousand years siace Aristotle undertook 
 to form, under the title qf Sophisms, a complete catalogue of the 
 different kinds, of false reasoning. This catalogue, improved by 
 the information which so long an interval might furnish,, would 
 here have its place and its use. But such an undertaking would 
 ■ carry me too far. I shall be content with presenting some heads 
 of error on the sutiject of legislation. By means of such a coii- 
 
 - trast, the principle of utility wiU be put into a clearer light. 
 
 1. Antiquity is not a Reason. 
 ■ Jhe antiquity, of a law may create a prejudice in its favour ; but 
 ' ia itself, it is not a reason. , If the law in question, has contributed 
 to the public good, the older it is, the easier it will be to enumerate 
 its good effects, and to prove its utility by a direct process. 
 
 2." The Authority of Meligion is not a Reason. 
 Of late, this method of reasoning has gone much out of fashion^ 
 but till' recently, its use was very extensive. The. work of 
 
 - Algernon Sidney is full of citations from the Old Testament; and 
 he finds there the foundation of a system of Democracy, as 
 Bossuet had found the principles o.f- absolute ; power. Sidney 
 wished to combat the partisans of divine right and passive 
 obedience with their own weapons. . i 
 
 If we suppose that a law emanates from the Deity, we suppose 
 that it emanates from supreme wisdom, and supreme bounty. 
 
 r 2 
 
68 THINCIPIiES OF lEGISLATIOK. 
 
 Such a law, then, can only have for its object the most eminent 
 ntiHty ; and this utility, put into a clear light, will always be an 
 ample justification of the law. 
 
 3. lieproach of Innovation is not a Reason. 
 To reject innovation is to reject progress : in what condition 
 should we be, if that principle had been always followed ? All 
 which exists has had a beginning ; all which is established has 
 been innovation. Those very persons who approve a law to-day 
 because it is ancient, would have opposed it as new when it was 
 first introduced. 
 
 4. An Arbitrary Definition is not a Reason. 
 
 Nothing is more common, among jurists and'political writers, 
 than to base their reasonings,, and even to write long works, upoU' 
 ■Sk foundation of purely arbitrary definitions. This artifice con- 
 sists in taking a word in a particular sense, foreign from its 
 ■common usage ; in emplo3nmg that word as no one ever employed 
 it before ; and in puzzling the reader by an appearance of pro- 
 foundness and of mystery. 
 
 Montesqui eu himself has fallen into this fault in the very be- 
 ginning of his work. Wishing to give a definition of law, he 
 proceeds from metaphor to metaphor ; he brings together the 
 most discordant objects — the Divinity, the material world, superior 
 intelligences, beasts and men. We learn, at last, that laws are 
 relation^; and eternal relations. Thus the definition is more 
 obscure than the thing to be defined. The word laiv, in its 
 proper sense, excites in every mind a tolerably clear idea, the 
 word relation excites no ideajat aU. The word law, in its figura- 
 tive sense, produces nothing but equivocations,; and Montesquieu, 
 -who ought 'to/- have dissipated thei darkness, has only in- 
 creased it. 
 
 It is the character of a false definition, that it can only be em- 
 ployed in a particidar way. That author, a little further on 
 (ch. iii.), gives another definitipn. Law in general, he sayB7 is 
 human reason, in so far as it governs all the people of the earth. 
 These terms are more familiar but no clear idea results from 
 
PKINCHLES OP LEGISLATION. 69 
 
 them. Is it the fact, that so many laws, contradictory, ferocious, 
 or absurd, and in a perpetual state of change, are always 
 human reason ? It would seem that reason, so far from being 
 the law, is often in opposition to it. 
 
 This first chapter of Montesquieu has g^ven occasion to an 
 abundance of nonsense. The brain has been racked in search of 
 metaphysical mysteries, where none in fact exist. Even Beccaria 
 has suffered himself to be carried away by this obscure notion of 
 relations. To interrogate a man in order to know whether he is 
 innocent or guUty, is to force him, he tells us, to accuse himself. 
 To this procedure he objects ; and why ? because, as he says, it 
 is to confound all relations.* But what does that mean ? To 
 enjoy, to suffer, to cause enjoyment, to cause suffering : those are 
 expressions which I understand ; but to foUow relations and to 
 confound relations, is what I do not imderstand at all. These 
 abstract terms do not excite any idea in my mind; they do 
 not awaken any sentiment. I am absolutely indifferent about 
 relations; — pleasures and pains are what interest me. 
 
 Eousseau has not been satisfied with the definition of Mon- . 
 tesquieu. He has given his own, which he announces as a great 
 discovery. Iiaw, he says, is the expression of ^he general will. 
 There are, then, no laws except where the people have spoken 
 in a body. There is no law except in an absolute democracy. 
 Eousseau has suppressed, by this supreme decree, all existing laws; 
 and at the same time he has deprived of the possibility of 
 existence aU those which are likely to be made hereafter, — the 
 legislation of the republic of San Marino alone excepted. 
 
 5. Metaphors are not Reasons.! 
 
 I mean either metaphor properly so called, or allegory, used 
 at first for illustration or ornament, but afterwards made the basis 
 of an argument. 
 
 Blaokstone, so great an enemy of all reform, that he has gone 
 so far as to find fault with the introduction of the EngKsh lan- 
 guage into the reports of oases decided by the courts, has neglected 
 
 * Beooaria, ch. xii. 
 
70 PEINCIPLES OF LEGISLATION. 
 
 no means of inspiring his readers -with tie same prejudice. He 
 represents the law* as a castle/ as a fortress, wHcli cannot be 
 altered without being weakened. I allow that he does not ad- 
 vance this metaphor as an argument ; but why does he employ 
 it ? To gain possession of the imagination ; to prejudice his 
 readers against every idea of reform; to excite in them an arti- 
 ficial fear of aU innovation in the laws. There remains in the 
 mind a false image, which, produces the same effect with false 
 reasoning. He ought to have recollected that this allegory might 
 be employed against himself. "When they see the law turned 
 into a castle, is it not natural for ruined suitors to represent it as 
 a castle inhabited by robbers ? 
 
 A man's house, say the English, is his castle. This poetical 
 expression is certainly no reason ; for if a man's house be his 
 castle by night, why not by day ? If it is an inviolable asylum 
 for the owner, why is it not so for every person whom he chooses 
 to receive there ? The course of justice is sometimes interrupted 
 in England by this puerile notion of liberty. Criminals seem to 
 be looked upon like foxes ; they axe suffered to have their burrows, 
 in order to increase the sports of the chase. 
 
 A church in Catholic countries is the House of God. This 
 metaphor has served -to establish asylums for criminals. It would 
 be a mark of disrespect for the Divinity to seize by force those 
 who had taken refuge in his house. 
 
 The lalance. of trade has produced a multitude of reasonings 
 founded upon metaphor. It has been imagined that in the course 
 of mutual commerce nations rose and sank like the scales of a 
 balance loaded with unequal weights ; people have been terribly 
 alarmed at what appeared to jthem, a want of equilibrium j for it 
 has been supposed. that what one nation gained the other must • 
 lose, as if a weight had been transferred from one scale to thd 
 other. , ,1 
 
 The word mother-eauntry JiaB produced a great number of pre-i 
 judices ^nd false reasonings in all questions concerning colonies 
 
 * 3 Comm. oli. xvii. 
 
PEIlfCIPLES OP LEGISLATIOIf. 71 
 
 and the parent state. Duties haVe beea imposed upion. colonies, 
 and they have "been accused of offences, founded solely upon the 
 metaphor of their filial dependence. 
 
 . .&. A. Mpiion is not .a Meason. 
 
 I understand- by fiction an assumed fact notoriously felse, upon 
 ■which one reasons as if it were true. 
 
 The celebrated^Coeeeiji, the compiler of the Code Frederic, fxa- 
 nishes an example of this kind of reasoning on the subject of last 
 wills. After a deal of cireumlocution about the natural right, he 
 decides that the legislator ought to grant to individuals the power 
 of makingia wiU. Why ? , Beeame'the hew and the' decerned are 
 one- and. the same person, and consequently fheheir ought to continue 
 to enjoy the property of the deceased: ' (Code Fred, part ii. 1. 110, 
 p. 156;) He offers, itds traei some argumeHts which involve, to 
 a small ;exitent, the principle of utility ; ' but that is in the preface. ' ■ 
 The serious reason, the. judicial reason, is the identity of the living ' 
 and the dead! ■ 
 
 The English lawyers; to justify th&co'nflsoation of property in" 
 certain cases, have employed a style of reasoning not unlike that 
 of the chancellor of the, great Frederic. --ThreyhaVe imagined a 
 corruption of hhod yihioh. arrests, the course of legal succession. 
 A- man has been capitally punished for t;he crime of high treason; 
 his innocent son is not only deprived of his father's goods, but he 
 cannot even inherit from his grandfathery because the channel 
 by which the .goods ought to pass has been corrupted. This 
 fiction of a sort bf political original, sin serves as a foundation 
 to all this point of law. i Biit- why stop there? If in fact the 
 father's; blood is corrupted,- wiy not destroy, the .vile offspring' 
 of corruption? Why not execute the son at the same time with 
 the father? 
 
 Blackstone, in the seventh chapter of his first book, in speak- 
 ing of the royal, authority, has given himself up to- all the 
 puerility -of fiction. . The king, he tells us, is- everywhere pre- 
 sent; he can do no wrong; he is immortal. 
 
 These ridiculous paradoxes, the flniits of servility, so fat from 
 
72 PRINCIPLES OE LEGISLATION. 
 
 fuimshing just ideas of the prerogatives of royalty, only serve to 
 dazzle, to mislead, and to give to reality itself an air of fable and 
 of prodigy.' But these fictions are not mere sparkles of imagi- 
 nation. Se mak^s them the foundation of many reasonings. 
 He employs them to explain certain royal prerogatives, which 
 might be justified by very good arguments, without perceiving 
 how much the best cause is injured by attempting to prop it up 
 by falsehoods. The judges, he tells us, are mirrors, in which the 
 image of the Icing is reflected. What puerility ! Is it not expos- 
 ing to ridicule the very objects which he designs to render the 
 most respectable ? 
 
 But there are fictions more bold and more important, which 
 have played a great part in politics, and which have produced 
 celebrated works : these are contracts. 
 
 The Zeviathan of Hobbes. a w ork now-a-days but little known, 
 and detested through prejudice and at second-hand as a defence 
 of despotism, is an attempt to base all political society upon a 
 pretended contract between the people and the sovereign. The 
 people by this contract have renounced their natural liberty, 
 which produced nothing but evil ; and have deposited all power 
 in the hands of the prince. All- opposing wills have been united 
 in his, or rather annihilated by it. That which he wills is taken 
 to be, the wUl of all his subjects. When David brought about the 
 destruction of Uriah, he acted in that matter with Uriah's con- 
 sent, for Uriah had consented to all that David might command. 
 The prince, according to this system, might sin against God, but 
 he could not sin against man, because all his actions proceeded 
 from the general consent. It was impossible to entertain the 
 idea of resisting him, because such an idea impUed the contradic- 
 tion of resisting one's self. 
 
 Locke , whose name is as dear to the friends of liberty as that 
 of Hobbes is odious, has also fixed the basis of governm ent upon^ 
 a contract. He agrees that there is a contract between the prince 
 and the people ; but according to him the prince takes an engage- 
 ment to govern according to the laws, and for the public good ; 
 while the people, on their side, take an engagement of obedience 
 
PEINCIPIES OF LEGISIATION. 73 
 
 BO long as the, prince remains faithful to the conditions in virtue 
 of which he receives the croT^. 
 
 Eonsseau rejects with indignation the idea of this bilateral 
 contract between the prince and the people. He has imagined a 
 social contract, by which aU are bound to all, and which is the 
 only legitimate basis of government. Society exists only by 
 virtue of this free convention of associates. 
 
 These three systems — so directly opposed — agree, however, in 
 be^ning the theory of politics with a fiction, for these three con- ■ 
 tracts are equally fictitious. They exist only in the imagination of 
 their authors. Not only we find no trace of them in history, but 
 everywhere we discover proofs to the contrary. 
 
 The contract of Hobbes is a manifest falsehood. Despotism 
 has everywhere been the result of violence and of false religious 
 ideas. If a people can be found which by a public act has sur- 
 rendered up the supreme authority to its chief, it is not true that, 
 in so doing, that people submitted itself to aU the caprices, how- 
 ever strange or cruel, of its sovereign. The singular act of the 
 Danish people in 1660 includes essential clauses which limit the 
 supreme power. 
 
 The social contract of Eousseau has not been judged so severely, 
 because men are not difficult about the logic of a system which 
 establishes that which they best love — liberty and equality. But 
 where has this universal convention been formed ? What are its 
 clauses ? In what language is it written ? "Why has it always 
 been unknown ? Upon coming out of the forests, upon renoiineiog 
 savage life, what tribe has possessed those great ideas of morals 
 and politics upon which this primitive convention is built ? 
 
 The contract of Locke is more specious, because, in fact, there 
 are some monarchies in which the sovereign takes certain engage- 
 ments upon his accession to the throne ; and accepts certain con- 
 ditions upon the part of the natioh he is to govern. 
 
 However, even this contract is but a fiction. The essence of 
 a contract consists in the free consent of the parties interested. 
 It supposes that aU the objects of the engagement are specified 
 and known. Now if the prince is free, at his accession, to accept 
 
74 . PBINCIPLES OF. LEGISliTIOIf. 
 
 or to refuse,! are the peopteequalfyso?' Can a fets^ Vague-acda- 
 mations be couiited. as an act of individual and universal' assent?' 
 Can this contract bind' that multitude "of individuals -whff never 
 heard of it,iwho have never been caUed'to- sanction 'it, and who^ 
 could not have refused their consent -without endangeriiijg^heir 
 fortunes and their lives ? •" ' ■ 'H : i-, 
 
 Besides, in the greater part of monarchies, 'this pretended con- 
 tract has not even'the'- appearance of reality; ; "We do not-see 
 even the shadow of ; an engagement betweeh'the- prince and the 
 people. 
 
 It is not necessary .to make the happiness of -the human race' 
 dependent on a fiction;. It is not necessary to erect' the social' 
 pyramid upon a foundation of sand, or upon a, clay -which slips 
 from beneath it.. Let' us leave sucb trifling tO' children'; men 
 ought to speak the language of truth and^reason. 
 
 The true political tie is the immense iuterest -which men have • 
 in maintaining a government. Without a government 13iMe can ' 
 be no security, no domestic enjoyments, no property, no industry. 
 It. isy in 1 this 1 feet, that we ought to seek the <basis and the reason 
 of aU governments, whatever may be their origin and their form ; 
 it is by comparing them with their object- that we can reason 
 with solidity. upon their rightsi.andi their lobligations, -without 
 having recourse ton pretended contracts which cam only serve to 
 produce interminable disputes. :. . 
 
 7. jFa,ney is hot a Reason. 
 
 Ifothing is more common than to sa:^,. reason decides, eternal 
 reason order?, &Ci,t. But what is this reason?. If.it is not a dis-.. 
 tinct vie-yp- of gpo^. ..or^e-yil,, it is mere fancy; it is » despotism, 
 which announces notljing but the .interior persuasion of him. who 
 speaks. Let us see upon what foundation a distinguished jurist 
 has sought to esta,blish the paternal authority. A man of ordinary . 
 good sense -jwould not, see much diffloulty in.that question; but 
 your learned men find a mystery evejy^h,ere, 
 
 " The right of a father over his children," says Cocceiji, "is 
 founded in reason; — ^for, 1st, Children are born in a.house, of 
 
PBDfCIPlES OF LEBISLATIOIS'. 76 i 
 
 which the father is the master; 2nd, Th'ey are bori in a faiflily'; 
 of which he is the chief; 3rd, They are of his seed, and a part of 
 his body." "These ai-e the! reasotos from whieh he concliid^sj. 
 among othet things, that a man of ; forty ought not to marly 
 •without :ttie"eonsent of a MheT,''¥ho in ; the course of nature 
 must by that time be in his dotage'. ' What thery is common to 
 these three reasons is, that none of them has. any relation to the 
 interests of the parties. The author consults neither the welfare 
 of father nor that of the children. 
 
 The right of a father is an iliiprolper phrase. The question is 
 not of an unlimited, nor of an indivisible right. There are' many 
 kiods of rights which maybe granted or refused to a father, each 
 for particular reasons. 
 
 The first reason which Coceeiji alleges is founded upon a fact 
 which is true only by accident. Let a traveller have children 
 who are bom at a tavern, on board a vessel, or in the house of a 
 friend, silch a father wolild lack this first basis of paternal ' 
 authority. According to this reasoning, the children of a 
 domestic, and those of a soldier, ought not to be subjeetto their 
 fathers' commands; but to those of the person in whose house 
 theyare bom. '■' '' 
 
 If the second reason has any determinate sense, it is only a 
 repetition of the first. Is the child of a man Who lives in his 
 father's house, or in the house of an -elder brother, or a patron, 
 bom in a family of which his father is the chief ? 
 
 The third reason is as'futile as it is indeictent. " The child is 
 bom of the seed of his father, and is a part of his body." If 
 this is the foundatipn of the right, it ought to put the power of 
 the mother far above that of the father. 
 
 And here we may remark an essentia l difference between fal se ■ 
 principles and the true one. Th e principle of utility, applyin g 
 i tself only to the interests of the parties, bends to circumst ances, 
 and accommodates itself to e very case. Fa lse principl es, being 
 founded jiBpn things which have nothiug^tqjJo with individual 
 interests, woold bginflexible i f they were consistent. Such is 
 the character of this pretended right founded upon birth. The 
 
76 PBINCmES OF lEGISLAIION. 
 
 son naturally belongs to the father, because the matter of ■which 
 the son is formed once circulated in the father's veins. No 
 matter how unhappy he renders his son; — it is impossible to 
 annihilate his right, because we cannot make his son cease to b« 
 his son. The corn of which your body is made formerly grew in 
 my field ; how is it that you are not my slave ? 
 
 8. Antipathy and Sympathy are^ not Reasons. 
 
 Eeasoning by antipathy is most common upon subjects con- 
 nected with penal law ; for we have antipathies against actions 
 reputed to be crimes ; antipathies against individuals reputed to 
 be criminals ; antipathies against the ministers of justice ; anti- 
 pathies against such and such punishments. This false prin- 
 ciple has reigned like a tyrant throughout this vast province of 
 law. Beccaria first dared openly to attack it. His arms were of 
 celestial temper; but if he did much towards destroying the 
 usurper, he did very little towards the establishment of a new 
 and more equitable rale. 
 
 It is the principle of antipathy which leads us to speak of 
 offences as deserving punishment. It is the corresponding prin- 
 ciple of sympathy which leads us to speak of certain actions as 
 meriting reward. This word merit can only lead to passion and 
 to error. It is effects, good or bad, which we ought alone to consider. 
 
 But when I say t hat antipathies a nd symp athies are no reason, 
 I mean those of the legislator ; for the antipathies and sym pa- 
 thies of the people may be reaso ns, and very power ful ones. 
 However odd or pernicious a religion, a law, a custom may be, it 
 is of no consequence, so long as the people are attached to it. 
 The strength of their prejudice is the measure of the indul- 
 gence which should be granted to it. To take away an enjoy- 
 ment or a hope, chimerical though it may be, is to do the same 
 injury as if we took away a real hope, a real enjoyment. In such 
 a case the pain of a single individual becomes, by sympathy, the 
 pain of all. Thence results a crowd of evils ; antipathy against 
 a law which wounds the general prejudice ; antipathy against 
 the whole code of that law is a part ; antipathy against the 
 
PBUfCIPLES OP lEOISLATION. 77 
 
 government which carries the laws into execution; a disposi- 
 tion not to aid in their execution; a disposition secretly to oppose 
 it ; a disposition to oppose it openly and by force ; a disposition 
 to destroy a government ■which sets itself in opposition to the 
 popular will — aU the evils produced by those offences, which, in 
 a collective shape, form that sad compound called rebellion or 
 civil war — all the evils produced by the punishments which are 
 resorted to as a means of putting a stop to those offences. Such 
 is the succession of fatal consequences which are always ready to 
 arise from fancies and prejudices violently opposed. The legis- 
 lator ought to yield to the violence of a current which carries 
 away everjrthing that obstructs it. But let us observe, that in 
 s uch a case, the fancies themselves are not the reas on that 
 determine s the legislator ; his reason is the ev ils whick threaten 
 to grow ou t of an oppositi^ to those fancies. 
 
 But ought the legislator to be a slave to the fancies of those 
 whom he governs ? "No. Between an imprudent opposition and 
 a servile compliance there is a middle path, honourable and safe. 
 It is to combat these fancies with the only arms that can conquer 
 them — example and instruction. He must enlighten the people, 
 he must address himself to the public reason ; he must give 
 time for error to be unmasked. Sound reasons, clearly set forth, 
 are of necessity stronger than false ones. But the legislator 
 ought not to show himself too openly in these instructions, for 
 fear of compromitting himself with the public ignorance. Indi- 
 rect means will better answer his end. 
 
 It is to be observed, however, that too much deference for 
 prejudices is a more common fault than the contrary excess. 
 The best projects of laws are for ever stumbling against this 
 common objection, — "Prejudice is opposed to it; the people 
 wiU be offended !" But how is that known ? How has public 
 opinion been consulted ? "What is its organ ? Have the whole 
 people but one uniform notion on the subject ? Have all the 
 individuals of the community the same sentiments, including 
 perhaps nine out of ten, who never hoard the subject spoken of? 
 Besides, if the people are in error, are they compelled always to 
 
78 PBINCIPLES OP lEGISLAIIOir. 
 
 remain so? Will not an influx of light dissipate the darkness 
 which, prsduees error?- Can we expect the people to possess 
 sound knowledge, while it is yet unattained by their legislators, 
 by those who are regarded as the wise men of the land ? Have 
 there not been examples of other nations who have come out of 
 a similar ignorance, and where triumphs have been achieved 
 over the same obstacles ? 
 
 After all, popular prejudice serves oftener as a pretext than as 
 a motive. It is a convenient cover for the weakness of states- 
 men. The ignorance of the people is the favourite argument of 
 pusillanimity and of indolence ; while the real motives are pre- 
 judices' from which the legislators themselves have not been able 
 to get free. The name of the people is falsely used to justify 
 their leaders. 
 
 9. Begging the Question is not a Reason. 
 
 ' ' The petitio principii, or begging the question, is one, of the 
 sophisms which is noted, by Aristotle ;, but it is a Proteu,s which 
 conceals itself artfully, and is reproduced under, a thousand 
 forms. . . , 
 
 Begging the question, or rather assuming the question, con- 
 sists in making use of the very proposition in dispute, as though 
 it were already proved. 
 
 This false procedure insinuates itself into morals and legisla- 
 tion, under the disguise of sentimental or impassioned terms; 
 that is, terms which, beside their principal sense, carry with 
 them an accessory idea of praise or blame. ITguter terms are 
 those which simply express the thing in question, without any 
 attending presumption of good or evil ; without introducing any 
 foreign idea of blame or approbation. 
 
 Now it is to be observed that an impassioned, tern), envelops 
 a proposition not expressed^ but understood, which always accom- 
 panies- its employment, though in general unperceived by those 
 who employ it. This concealed proposition implies either blame 
 or praise; but the implication is alwiays vague and undetermined. 
 
 Do I desire to Coimect an idea of utility with a term which 
 
PEINCIPLES OP LEGISLATIOIT. 79 
 
 cominoiily conveys' an accessory idea of blame ? I shall seem to 
 advance a paradox, 'and to •contradict myself- For example, 
 should I say that such a piece of luxury is a good thing ? The 
 proposition astonishes those who^ are accustomed to attach to this 
 ■word luxv/ry a sentiment of disapprobation. 
 
 How shall L be able to examine this particular point without 
 awakening a dangerous association ? I must have recourse to a 
 neuter word ; I must say, for example, such a manner of spending 
 one's revenue is good. This turn of expression runs counter to no 
 prejudice, and permits an impartial examination of the object in 
 question. "When Helvetius advanced the idea that all actions 
 have interest for their motive, the public cried out against his 
 doctrine without stopping td miderstand it. "Why? Because 
 the word interest has an odious sense ; a common acceptation, in 
 which it seems to exclude every motive of ptire attachment and 
 of benevolence. 
 
 How many reasonings upon political subjects are founded upon 
 nothing but impassioned terms ! People suppose they are giving 
 a reason for a law, when they say that it is conformable to the 
 principles of monarchy or of democracy. But that means nothing. 
 If there are persons -in whose minds these words are assG'}iated 
 with an idea of approbation, there are others who attach con- 
 trary ideas to them. Let these two parties begin to quarrel, the 
 ••dispute wiU never come to an end; except through the weariness 
 ■ of the combatants-. For, before beginning a true examination, we 
 must renounce these impassioned terms, and calculate the effects 
 of the proposed law in good and evil. 
 
 Blackstone admires in the British constitution the combina- 
 tion of the three forms of government; and he hence concludes 
 that it must possess the collected good qualities of monarchy, 
 aristocracy, and democracy. How happened it that he did not 
 perceive, that without c/hanging his premises, a conclusion might 
 be drawn from them; diametrically opposite, yet equally just; to 
 wit, that the British constitution must unite all the particular 
 faults of democracy, aristocracy, and nionarchy? 
 
 To the word independence, there are attached certain accessory 
 
80 PEINCIPLES OF LEGIStAIIOlf. 
 
 ideas of dignity and virtue; to the wori' dependence, accessory- 
 ideas of inferiority and corruption. Hence it is that the pane- 
 gyrists of the British constitution admire the independence of the 
 three powers of which the legislature is composed. This, in 
 their eyes, is the masterpiece of politics ; the happiest trait in 
 that whole scheme of government. On the other side, those who 
 would detract from the merits of that constitution, are always in- 
 sisting upon the actual dependence of one or the other of its branches. 
 Neither the praise nor the censure contain any reasons. 
 
 As to the fact, the pretended independence does not exist. 
 The king and the greater part of the lords have a direct influence 
 upon the election of the House of Commons. The king has the 
 power of dissolving that House at any moment ; a power of no 
 little eflScacy. The king exercises a direct influence by honour- 
 able and lucrative employments, which he gives or takes away 
 at pleasure. On the other side, the king is dependent upon the 
 two Houses, and particularly upon the Commons, since he cannot 
 maintain himself without, money and troops, — ^two principal and 
 essential matters which are whoUy under the control of the re- 
 presentatives of the people. What pretence has the House of 
 Lords to be called independent, while the king can augment its 
 number at pleasure, and change the vote in his favour by the 
 creation of new lords ; exercising too, as he does, an additional 
 influence on the temporal peers, by the prospect of advancement 
 in the ranks of the peerage ; and on the bishops, by the bait of 
 ecclesiastical promotion ? 
 
 Instead of reasoning upon a deceptive word, let us consider 
 effects. It is the reciprocal dependence of these three powers 
 which produces their agreement; which subjects them to fixed 
 rules, which gives them a steady and systematic operation. 
 Hence the necessity of mutual respect, attention, concession, and 
 moderation. If they were absolutely independent, there would 
 be continual shocks between them. It would often be necessary 
 to appeal to force ; and the result would be a state of anarchy. 
 
 I cannot refrain from giving two other examples of this error 
 of reasoning, founded upon the misuse of terms. 
 
PBINCIPIES OF LEGISLATION. 81 
 
 If -we attempt a theory upon the subject of national represen- 
 tation, in following out all that appears to be a natural conse- 
 quence of that abstract idea, we come at last to the conclusion 
 that universal suffrage ought to be established ; and to the addi- 
 tional conclusion that the representatives ought to be re-chosen 
 as frequently as possible, in order that the national representation 
 may deserve to be esteemed such. 
 
 In deciding these same questions according to the principle of 
 utility, it will not do to reason upon words ; we must look only 
 at effects. In the election of a legislative assembly, the right 
 of suffrage should not be allowed except to those who are esteemed 
 ' by the nation fit to exercise it; for a choice made by men who. 
 do not possess the national confidence will weaken the confidence 
 of the nation in the assembly so chosen. 
 
 Men who would not be thought fit to be electors, are those 
 who cannot be presumed to possess political integrity, and a 
 sufficient degree of knowledge. Now we cannot presume upon 
 the political integrity of those whom want exposes to the temp- 
 tation of selling themselves; nor of those who have no fixed 
 abode ; nor of those who have been found guilty in the courts of 
 justice of certain offences forbidden by the law. "We cannot 
 presume a sufficient degree of knowledge in women, whom their 
 domestic condition withdraws from the conduct of public affairs ;, 
 in children and adults beneath a certain age ; in those who are 
 deprived by their poverty of the first elements of education, 
 &c. &c. 
 
 It is according to these principles, and others like them, that 
 we ought to fix the conditions necessary for becoming an elector,- 
 and it is in like manner, upon the advantages and disadvantages.; 
 of frequent elections, without paying any attention to arguments 
 drawn from abstract terms, that we ought to reason in establish^ 
 ing the duration of a legislative assembly. 
 
 The last example I shall give will be taken from contracts; % 
 mean those political fictions to which this name has been applied . 
 by their authors. 
 
 When Locke and Eousseau reason upon this pretended contract y 
 
82 PEIM-CrPLES OP LESrSLATIOir. 
 
 ■Wien they afSrin that the social or political contract includes 
 such and such a clause, can they prove it otherwise than by the 
 general utility which is supposed to result from it? Grant that 
 this contract which has never been reduced to writing is, how- 
 ever, iu full existence. On what depends aU its force ? Is it not 
 upon its utility? "Why ought we to fulfil our engagements? 
 Because the faith of promises is the basis of society. It is for 
 the advantage of all that the promises of every individual should 
 be faithfully observed. There would no longer be any security 
 among men, no commerce, no confidence; — it wotild be neces- 
 sary to go back to the woods, if engagements did not possess, 
 an obligatory force. It is the same with these political con- 
 tracts. It is their utility which mates them biuding. "When 
 they become injurious, they lose their force. If a king had taken 
 an oath to render his subjects unhappy, would such an engage- 
 be valid ? If the people were sworn tp obey him at all events, 
 •would they be bound to suffer themselves to be exterminated by 
 a 'Neio or a Caligula, rather than violate their promise ? If there 
 resulted from the contract effects universally injurious, could 
 there be any sufficient reason for maintaining it ? It cannot be 
 ■denied, then, that the validity of a contract is at bottom only a 
 question of utility — a little wrapped up, a little disguised, and, 
 in consequence, more susceptible of false interpretations. 
 
 10. An imaginary Law is not a Reason. 
 
 Natural law, natwal rights, are two kinds of fictions or meta- 
 ■phors, which play so great a part in books of legislation that 
 they deserve to be examined by themselves. 
 
 The primitive sense of the word law, and the ordinary mean- 
 ing of the word, is — ^the wUl or command of a legislator. The 
 law of nature is a figurative expression, in which nature is repre- 
 sented as a being ; and such and such a disposition is attributed 
 to her, which is figuratively called a law. In this sense, aU the 
 general inclinations of men, all those which appear to exist inde- 
 pendently of human societies, and from which must proceed the 
 
PEINCIPLES OF lEGISLATION. 83 
 
 establishment of political and civil law, are called laioa of nature. 
 This is the true sense of the phrase. 
 
 But this is not the way in ■which it is understood. Authors 
 have taken 'it 'in a direct sense; as if there had been a real code 
 of natural laws. They appeal to these laws; they eite them, and 
 they oppose them, clause by clause, to the enactments of legis- 
 lators. They do not see that these natural laws are laws of their 
 own invention ; that they are all at odds aniong themselves as to 
 the contents of this pretended code; that they affirm without 
 proof; that systems are as numerous as authors; and that, in 
 reasoning in this manner, it is necessary to be always beginning 
 anew, because every one can advance what he pleases touching 
 laws which are only imaginary, and so keep on disputing for 
 ever. 
 
 What is natural to man is sentiments of pleasure or pain, 
 what are called inclinations. But to call these sentiments and 
 these inclinations latps, is to introduce a false and dangerous idea. 
 It is to set language in opposition to itself; for it is necessary to 
 make loics precisely for the purpose of restraining these inclina- 
 tionsi' Instead of regarding them as laws, they must be sub- 
 mitted tO' laws. It is against the strbnigest natural inclinations 
 that it is necessary to have laws the most repressive. ' If there 
 were a law of nature which directed all men towards their common 
 good, laws would be useless ; it would be employing a creepei: to 
 uphold an oak ; it would be kindling a torch to add light to the 
 sun. ' ■ ' • ■ :-,.,'- 
 
 BlaafcstOnev in speakimg-'of the obligatioH of pareSits to provide 
 for the support of their children, says, " that it is a principle of 
 natural law, a duty imposed by nature itself, and by the' proper 
 act of the parents in bringing the children into the world. 
 Montesquieu," he adds, " observes with reason,, that the natural 
 obligation of the father to support- his children, is what has 
 caused the establishment of marriage, which points out the 
 person who. ought to fulfil this ohligation." , (Book i. ,ch. 16.) 
 
 Parents are indinei to support their children; pwents otyht 
 to support their children; these are two distinct propositions. 
 
 o 2 
 
81 PEINCIPLES OP LEGISIATION. 
 
 The first does not suppose the second ; the second does not sup- 
 pose the first. There are, without doubt, the strongest reasons 
 for imposing upon parents the obligation ,to bring up their 
 children. "Why have not Blactstone and Montesquieu mentioned 
 those reasons ? Why do they refer us to what they call the law 
 of nature? "What is this law of nature, which needs to be 
 propped up by a secondary law from another legislator ? If this 
 natural obKgation exists, as Montesquieu says it does, far from 
 serving as the foundation of marriage, it proves its inutility, — at 
 least for the end which he assigns. One of the objects of mar- 
 riage is, precisely to supply the insufficiency of natural affection. 
 It is designed to convert into obligation that inclination of 
 parents, which would not always be sufficiently strong to sur- 
 mount the pains and embarrassments of education. 
 
 Men are very well disposed to provide for their own support. 
 It has not been necessary to make laws to oblige them to that. 
 If the disposition of parents to provide for the support of their 
 children had been constantly and universally as strong, legis- 
 lators never would have thought of turning it into an obligation. 
 
 The exposure of infants, so common in ancient Grreece, is still 
 practised in China, and to a greater extent. To abolish this 
 practice, would it not be necessary to allege other reasons besides 
 this pretended law of nature, which here is evidently at fault ? 
 
 The word rights, the sa me as the word law, h as two senses ; 
 the one a proper sense, the other a metaphorical sense. Rights, 
 p roperly so called, are the creatures o f law properly so called; 
 real laws give birth to real rights. Natural r ights are the crea- 
 tures, jjf. natural law; they are a metaphor which derives its 
 origin from another metaphor. 
 
 What there is natural in man is means, — faculties. But to 
 call these means, these faculties, natural rights, is again to put 
 language in opposition to itself. For rights are established to 
 insure the exercise of means and faculties. The right is the 
 guarantee; the faculty is the thing guaranteed. How can we 
 imderstand each other with a language which confounds imder 
 the same term things so different ? Where would be the nomen- 
 
PEINCrPLES OF LEGISLATION. 85 
 
 clature of the arts, if we gave to the mechanic who makes an 
 article the same name as to the article itself? 
 
 Eeal rights are always spoken of in a legal sense; natural 
 rights are often spoken of in a sense that may be called anti- 
 legal. When it is said, for example, that law cannot avail against 
 natftral rights, th e word ri ghts is employed in a sense above the 
 law; for, in this use of it, we acknowledge rights which attack 
 the law ; which overturn it, which annul it. In this anti-legal 
 sense, the word right is the greatest enemy of reason, and the 
 most terrible destroyer of governments. 
 
 There is no reasoning with fanatics, armed with natural rights , 
 which eacI["one'undefstiands~a"s'Eeplea"ses, and applies as ^e sees 
 fit ; of which nothing can be yielded, nor retrenched ; which are 
 inflexible, at the same time that they are uniatelligible ; which 
 are consecrated as dogmas, from which it is a crime to vary. 
 Instead of examining laws by their effects, instead of judging 
 them as good or as bad, they consider them in relation to these 
 pretended natural rights ; that is to say, they substitute for the 
 reasoning of experience the chimeras of their own imaginations. 
 
 This is not a harmless error ; it passes from speculation into 
 practice. " Those laws must be obeyed, which are accordant 
 with nature ; the others are nidi in fact ; and instead of obeying 
 them, they ought to be resisted. The moment natural rights are 
 attacked, every good citizen ought to rouse up in their defence. 
 These rights, evident in themselves, do not need to be proved ; 
 it is sufficient to declare them. How prove what is evident 
 already? To doubt implies a want of sense, or a fault of intel- 
 lect," &e. 
 
 But not to be accused of gratuitously ascribing such seditious 
 maxims to these inspired politicians of nature, I shall cite a pas- 
 sage from Blackstone, directly to the point ; and I choose Black- 
 stone, because he is, of all writers, the one who has shown the 
 most profound respect for the authority of governments. In 
 speaking of these pretended laws of nature, and of the laws of 
 revelation, he says : "Human laws must not be permitted to con- 
 tradict these; if a human law commands a thing forbidden by 
 
86 PEINCIPLES OF T,EGISLATION. 
 
 the natural or divine law, we are bound to transgress that human 
 law," &c. (1 Comm. p. 43.) 
 
 Is not this arming every fanatic against all goyenuaents ? ■ In 
 the immense variety of ideas respecting natural and Divine law, 
 cannot some reason he found for resisting all hiiman laws ? Is 
 there a single state which can maintain itself a day, if each indi- 
 vidual holds himself bound in conscience to resist ' the laws; 
 whenever they are not conformed to his particular ideas of natural 
 or Divine law ? What a cut- throat scene of it we should have 
 between all the interpreters of the code of nature, and all the 
 interpreters of the law of Grod ! 
 
 " The pursuit of happiness is a natural right." The pursuit 
 of happiness is certainly a natural inclination ; but can it be de- 
 clared to be a right ? That depends on the way in which it is 
 pursued. The assassin pursues his happiness, or what he esteems 
 such, by committing an assassination. Has he a right to do so ? 
 If not, why declare that he has ? What tendency is there in 
 such a declaration to render men more happy or more wise ? 
 
 Turgot was a great man ; but he had adopted the general 
 opinion without examining it. Inalienable and natural rights 
 were the despotism or the dogmatism which he wished to 
 exercise, without himself perceiving it. If he saw no reason to 
 doubt a proposition ; if he judged it evidently true ; he referred 
 it, without going further, to natural right, to eternal juBtice. 
 Henceforward he made use of it as an article of faith, which he 
 was no longer permitted to examine. 
 
 Utility having been often badly applied, understood in a nar- 
 row sense, and having lent its name to crimes, has appeared 
 contrary to eternal justice. It thus became degraded, and 
 acquired a mercenary reputation. It needs courage to restore it 
 to honour, and to re-establish reasoning upon its true basis. 
 
 I propose a treaty of conciliation with the partisans of natural 
 rights.- If nature has made such or such a law, those who cite 
 it with so much confidence, those vpho have modestly taken upon 
 themselves to be its interpreters, must suppose that nature had 
 some reasons for her law. Would it not be surer, shorter and 
 
PKINCIPLES OP LEGISLATION. 87 
 
 more persuasive, to give us those reasons directly, instead of 
 urging upon us the will of this unknown legislator, as itself an 
 authority ? 
 
 Here would be the place to remark the false methods of 
 argument, which especially prevail in deliberative assemblies — 
 personalities, imputations of bad motives, declamations, delays. 
 But what.has been said above is enough to show what is reason- 
 ing, according to the principle of utility, and what is not. 
 
 All these false methods of reasoning can always be reduced to 
 one or the other of the two false principles. This fundamental 
 distinction is very useful in getting rid of words, and rendering 
 ideas more clear. To refer such or such an argument to one or 
 another of the false principles, is like tying weeds into bundles, 
 to be thrown into the fire. 
 
 I conclude with a general observation. The language of error 
 is always obscure and indefinite. An abundance of words serves 
 to cover a paucity and a falsity of ideas. The oftener terms are 
 changed, the easier it is to delude the reader.' The language of 
 truth is uniform and simple.' The same ideas are always ex- 
 pressed by the same terms. Everything is referred to pleasures 
 or to pains. Every expression is avoided which tends to disguise 
 or intercept' the familiar idea, that from such and 'such ' actions 
 result such and such pleasures arid pains. Trust not to me, but to 
 experience, and especially your own. Of two opposite methods 
 of action, do you desire to irmw which should have the prefetence ? 
 Calculate their effects in good and ebil, and prefer that which pro- 
 mises the greater sum of good. 
 
PUmCIPLES OF THE CIVIL CODE. 
 
 INTEODUCTION. 
 
 BY DUMONT. 
 
 Op all the branches of legislation, civil law is that ■which has the 
 least attraction for those who do not study jurisprudence a,s a pro- 
 fession. But this is not saying enough. In fact, it inspires a 
 kind of terror. Curiosity has for a long time been ardently ex- 
 ercised upon political economy, upon penal law, and upon the 
 principles of government. Celebrated works have given credit 
 to those studies ; and under the penalty of confessing an humbling 
 inferiority, it is necessary to have some information, and to ex- 
 press some opinions about them. But civil law has not yet come 
 out of the narrow enclosure of the bar. Its commentators sleep 
 in the dust of libraries, by the side of its controversialists. The 
 public knows not even the names of its sects ; and regards with 
 a mute and ignorant respect those numerous folios, those 
 enormous compilations, ornamented with the pompous titles of 
 Bodies of Law, and Collections of Universal Jwrisprudence. 
 
 The general repugnance against this study results from the 
 manner in which it has been treated. The works above alluded 
 to bear the same relation to the science of law which was borne 
 to the natural sciences by the works of the scholastic writers, 
 before the introduction of experimental philosophy. Thoy who 
 
PBINCIPLES OF THE CITIL CODE. 89 
 
 attribute the dryness and obscurity of those works to the nature 
 of the subject, are altogether too indulgent. 
 
 What is it of which this part of the law treats ? It treats of 
 everything that is most interesting to men : of their security ; of 
 their property; of their mutual and daUy transactions; of their 
 domestic condition, in the relations of father, of children, of 
 husband, and of wife. Here it is that rigMi and obligations 
 spring up ; for all the objects of law may be reduced, without 
 mystery, to these two terms. 
 
 The civil law is, in fact, only another aspect of the penal law ; 
 one cannot be understood without the other. To establish rights, 
 is to grant permissions ; it is to make prohibitions ; it is, in one 
 word, to create offences. To commit a private offence is to 
 violate an obligation which we owe to an individual, — a right 
 which he has in regard to us. To commit a public offence is to 
 violate an obligation which we owe to the public, — aright which 
 the public has in regard to us. CivU law, then, is only penal 
 law viewed under another aspect. If I consider a law at the 
 moment when it confers a right, or imposes an obligation, this is 
 the civil point of view. If I consider a law in its sanction, in 
 its effects as regards the violation of that right, the breaking 
 through that obligation, that is the penal point of view. 
 
 What is to be understood \)j principles of civil law ? They are 
 the motives of laws ; the knowledge of the true reasons which 
 ought to guide the legislator in the distribution of the rights 
 which he confers, and the obligations which he imposes. 
 
 We might search in vain through the libraries of law books, for 
 a volume in which it has been attempted to found laws upon 
 reasons. The theory of civil laws by Linguet, promises much in 
 its title, which it is very far from performing. It is the produc- 
 tion of a disordered imagination, in the service of a bad heart. 
 The author wishes to reduce aU governments to the model of 
 oriental despotism, and to strike out of them aU notions of liberty 
 and humanity, — in his view mournful spectres, the sight of which 
 appears to torment him. 
 
 The disputes of jurisprudence have produced, among the 
 
90 PEINCIPIES OF THE CIVIL CODE. 
 
 lawyers, -a kind of unbelievers, who have doubted whether law 
 has any principles. According to them, everything is arbitraiy. 
 , The law is good because it is the law ; because a decision, of what- 
 ever kind, produces .the great advantage of peace.' There is a 
 little truth in this opinion, and a great deal of error. It will be 
 seen in the following chapters that the principle of utility ex- 
 tends to this part of the law, as to aU others. But its appHoation 
 is difficult ; it demands an intimate knowledge of human nature. 
 The first ray of light which struck the mind of Bentham, in 
 the study of law, was the perception that natural rights, the 
 original pact, the moral sense, the notion of just and unjust, which 
 are used to explain everything, were at bottom nothing but those 
 innate ideas of which Locke has so clearly shown the falsity. He 
 saw that authors were going round in a vicious circle. Pamiliar 
 with the method of Bacon and of Newton, he resolved to transfer 
 it to the, subject.of legislation; he resolved to make jurisprudence 
 an experimental science. He avoided aU dogmatic words ; he 
 rejected everything which did not express a sensation of pain or 
 pleasure ; he refused to admit, for example, that property was an 
 inherent right, or a natural right, because these terms explained 
 nothing and proved nothing. The words, justice and injustice 
 had, in his estimation, a similar inconvenience, — that of pre- 
 judging questions, instead of throwing light upon them. "When 
 he proposes a law, he does not pretend to find a corresponding 
 law in the code of nature, and by a common piece of legerdemain 
 to present, as a thing made already, the very thing he wishes to 
 make. When he explains alligations, he does not wrap himself 
 up in mysterious reasons ; he admits no supposition ; he shows 
 plainly that every obligation ought to be founded either upon a 
 precedent service received by the person obligated; upon, a 
 superior need on the part of him in whose favour the obligation 
 is imposed ; or upon a mutual agreement which derives all its 
 force from its utility. Thus, always guided by experience and 
 observation, he considers in laws nothing but the effects they 
 produce upon the faculties of man as a sensitive being ; and he 
 always ^reapains to he avoided as the only arguments of real value. 
 
PKINCIPLES OF THE CIVIL COSE. 91 
 
 The lawyers are always reasoning upon fictions, and giving to 
 those fictions the same effect as to realities. They atoiit, for 
 example, contracts which never have existed ; and quasi contracts 
 which have not even an appearance of existence. In certain 
 cases they admit a civil death, in. others they deny the natv/ral 
 death : such a dead man is not dead ; such a living man is not 
 living. A person who is absent is taken to be present ; a person 
 who is present is regarded' as absent. A province is not where it 
 is; a country does not belong to those who own it. Men are 
 sometimes things, and as such are not susceptible of rights. 
 Things are sometimes beings who have rights, and who are sub- 
 mitted to obligations. They acknowledge imprescriptible rights, 
 against which prescription has always prevailed; iaalienable 
 rights which have always been alienated ; and that which is not, 
 in their eyes, is always of more avail than that which is. Take 
 away these fictions, or rather these falsehoods, and they would 
 not know where they were. Accustomed to these false supports, 
 they cannot sustain themselves in any other way. Bentham has 
 rejected all these puerile arguments; he makes no gratuitous 
 suppositions, he uses no arbitrary definitions ; no reason which 
 is not the expression of a fact ; no fact which is not a statement 
 of good or bad effects. 
 
 It is by this logical method of reasoning that he has made a 
 new science of civil law ; new and even paradoxical for those who 
 have been bred in the opinions of the old schools ; but simple, 
 natural, and even familiar, to those who have not been bewildered 
 by false systems. A translation of this book wUl have, ia all 
 languages, the same sense and the same force, because it appeals 
 to the universal experience of men ; while technical reasons — rea- 
 sons founded upon abstract terms, upon arbitrary definitions 
 having only a local value, and consisting only in words— vanish 
 when one attempts to find synonyms by which to translate them. 
 So the African tribes, who use shells for money, become conscious 
 of their poverty the moment they go beyond their own boundaries, 
 and offer their conventional riches to strangers. 
 
 I ought to add that Bentham made frequent digressions upon 
 
92 PBINCIPLES OP THE CIVIL CODE. 
 
 the laws of England, ■which I have suppressed, for they have only 
 a local interest. There are cases, however, where his observations 
 would have lacked a foundation if I had omitted to mention the 
 particular laws which were Uieir object. In seeking to be more 
 clear, to develop that which in the original was often only an 
 allusion, I may have made some mistakes, which it would be 
 unjust to impute to the author. These laws are so difficult to 
 understand, that it is dangerous for an Englishman who is not a 
 lawyer to run the risk of speaking about them — a risk which, 
 for obvious reasons, must be stUl greater in the case of a 
 foreigner. 
 
93 
 
 PART FIRST. 
 OBJECTS OF THE CIVIL LAW. 
 
 CHAPTEE I. 
 
 Rights and Obligations. 
 
 All the objects which the legislator is called upon to distribute 
 
 among the members of the community may be reduced to two 
 
 classes : — 
 
 Ist. Rights. 
 2nd. Obligations. 
 
 Eights are in themselves advantages, benefits, for him who 
 enjoys them. Obligations, on the contrary, are duties, charges, 
 onerous to him who ought to fulfil them. 
 
 Eights and obligations, though distinct and opposite in their 
 nature, are simultaneous in their origin, and inseparable in their 
 existence. In the nature of things, the law cannot grant a benefit 
 to one without imposing, at the same time, some burden upon 
 another ; or, in other words, it is not possible to create a right in 
 favour of one, except by creating a corresponding obligation 
 mposed upon another. How confer upon me the right of property 
 in a piece of land ? By imposing upon all others an obMgation 
 not to touch its produce. How confer upon me a right of com- 
 mand ? By imposing upon a district, or a number of persons, the 
 obligation to obey me. 
 
 The legislator ought to confer rights with pleasure, since they 
 are in themselves a good j he ought to impose obligations with 
 reluctance, since they are in themselves an evil. According to . 
 
94 PEINCIPLES or THE CIVIL CODE. 
 
 the principle of utility, he ought never to impose a burden except 
 for the purpose of conferring a benefit of a clearly greater value. 
 
 By creating obligations, the law to the same extent trenches 
 upon liberty. It converts into offences acts vrhich -would other- 
 wise be permitted and unpunishable; The law creates an offence 
 either by a positive command or by a prohibition. 
 
 These retrenchments of liberty are inevitable. It is impossible 
 to create rights, tp impose obligations, to, protect tthe person, Hfe, 
 reputation, property, subsistence, liberty itself, except at the 
 expense of liberty. 
 
 But every restriction imposed upon liberty is subject to be 
 followed by a natural sentiment of pain, greater or less ; and that 
 independently of an infinite variety of inconveniences and suffer- 
 ings, which may result from the particular manner of this restric- 
 tion. It follows, then, that no restriction ought to be imposed, 
 no power conferred, no coercive law sanctioned, without a suffi- 
 cient and specific reason. There is always a reason against every 
 coercive law — a reason which, in default of any opposing reason, 
 wiU always be sufficient in itself; and that reason is, that such a 
 law is an attac!^ upon liberty. He who proposes a coercive law 
 ought to be ready to .prove, not only that there is a specific reason' 
 in favour of it, but that, this reason is of more weight 'than the 
 general reason against every such law. 
 
 The proposition that every law is contrary to liberty,* though 
 as clear, as evidence can make it, is not generally acknowledged. 
 On the contrary, those among th&Mends of liberty who are more 
 ardent than enUghtened, make it a duty of conscience to combat 
 this truth. And how ? They pervert language ; they refuse to 
 employ the word liberty in its common acceptation ; they speak a 
 tongue peculiar to themselves. This is the definition they give of 
 liberty,: Liberty consists in the right of doing everything which is 
 not injurious to wmtheir. But is this the ordinary sense of' the 
 word ? Is not the liberty to do evU liberty ? If not, what is it ? 
 "What word can we use in speaking of it ? Do we not say that it 
 
 * Those laws urnst be excepted by which restrictive laws are revotefl, 
 laws which permit what other laws had forbidden. 
 
PKINCIPXES OF THE CIVIL CODE. 95 
 
 is necessary to take away liberty firom idiots and bad men, because 
 they abuse it ? 
 
 According to this definition, I can never know wbetber I have 
 the lib^erty to do an action untU I haye examined all its conse- 
 quences. If it seems to me injurious to a single individual, even 
 though the law permit it, or perhaps command it, I should not be 
 at liberty to do it. An officer of justice would not be at liberty 
 to punish a robber, unless, indeed, he were sure that this pnrish- 
 ment could not hurt the robber ! Such are the absurdities which 
 this definition implies. > 
 
 What does simple reason tell us ? Let us attempt to establish 
 a series of true propositions oh this subject. 
 
 The only object of government ought to be the greatest possible 
 happiness of the commimity. 
 
 The happiness of an individual is increased in proportion as Ms 
 sufferings are lighter and fewer, and his enjoyments greater and 
 more numerous. 
 
 The care of his enjoyments ought to be left almost entirely, to 
 the individual. The principal function of government is to guard 
 against pains. 
 
 It fulfils this object by creating rights, which it confers ,upon 
 individuals: rights of .personal security, rights of protection for 
 honour, rights of property, rights of receiving aid incase of need. 
 To these rights correspond offences of different kinds. The law 
 cannot create rights except by creating corresponding obKgations. 
 It cannot Create rights and obligations without creating offences, 
 it cannot command nor forbid without restraining the liberty of 
 individuals. 
 
 It appears, then, that the citizen cannot acquire rights except 
 by sacrificing a part of his liberty. But even under a bad govern- 
 ment there is no proportion between the acquisition and the sacri- 
 fice. Government approaches to perfection in proportion as the 
 sacrifice is less and the acquisition more. 
 
96 PBIKCIFLES OF THE CIVIL COSE. 
 
 CHAPTEE II. 
 
 Ends of Civil Law. 
 
 In the distribution of rights and obligations, the legislator, as 
 ■we have said, should have for his end the happiness of society. 
 Investigating more distinctljr in. what that happiness consists, we 
 shall find four subordinate ends : — 
 
 Subsistence. 
 Abundance. 
 Equality. 
 Security. 
 
 The more perfect enjoyment is in all these respects, the greater 
 is the sum of social happiness : and especially of that happiness 
 which depends upon the laws. 
 
 We may hence conclude that all the functions of law may be 
 referred to these foiir heads : — To provide subsistence ; to pro- 
 duce abundance ; to favour equality ; to maintain security. 
 
 This division has not all the exactness which might be desired. 
 The limits which separate these objects are not always easy to be 
 determined. They approach each other at different points, and 
 mingle together. But it is enough to justify this division, that 
 it is the most complete we can make ; and that, in fact, we are 
 generally called to consider each of the objects which it con- 
 tains, separately and distinct from all the others. 
 
 Subsistence, for example, is included in abundance ; still it is 
 very necessary to consider it separately ; because the laws ought 
 to do many things for subsistence which they ought not to 
 attempt for the sake of abundance. 
 
 Security admits as many distinctions as there are kinds of 
 actions which may be hostile to it. It relates to the person, the 
 honour, to property, to condition. Acts injurious to security, 
 ■branded by prohibition of law, receive the quality of offences. 
 
 Of these objects of the law, security is the only one which ne- ■ 
 cessarily embraces the future. Subsistence, abundance, equality, 
 may be considered in relation to a single moment of present 
 
PEINCIPIES OF THE CITIL CODE. 9? 
 
 time ; but security implies a given extension of future time 
 in respect to all that good wliicli it embraces. Security, then, 
 is the pre-eminent object. 
 
 I have mentioned equality as one of the objects of law. In 
 an arrangement designed to give to all men the greatest possible 
 sum of good, there is no reason why the law should seek to give 
 more to one individual than to another. There are abundance of 
 reasons why it should not ; for the advantages acquired on one 
 side, never can be an equivalent for the disadvantages felt upon 
 the other. The pleasure is exclusively for the party favoured j 
 the pain for all who do not share the favour. 
 
 Equality may be promoted either by protecting it where it 
 exists, or by seeking to produce it. In this latter case, the 
 greatest caution is necessary ; for a single error may overturn 
 social order.* 
 
 Some persons may be astonished to find that Liberty is not 
 ranked among the principal objects of law. But a clear idea of 
 liberty wiU lead us to regard it as a branch of security. Per- 
 sonal liberty is security against a certain kind of injuries which 
 affect the person. As to what is called political liberty, it is 
 another branch of security, — security against injustice from the 
 ministers of government. "What concerns this object belongs not 
 to civil, but to constitutional law. 
 
 CHAPTEE III. 
 
 Relations between these Ends. 
 
 These four objects of law are very distinct in idea, but they are 
 much less so in practice. The same law may advance several of 
 them ; because they are often united. That law, for example, 
 
 ■ * Equality may be considered in relation to aU the advantages whicli 
 depend upon laws. Political equality is an equality of poKtioal rights ; 
 civil equality is an equality of civil rights. When used by itself, the 
 word is commonly understood to refer to the distribution of property. 
 It is go used in this treatise. 
 
 H 
 
98 PBIKCIPLES OP THE CIVIL CODE. 
 
 which favovirs security, favour^, at the same time, subsistence 
 and abundance. 
 
 But there are circumstances ia which it is impossible to unite 
 these objects. It will sometimes happen that a measure sug- 
 gested by one of these principles will be condemned by another. 
 Equality, for example, might require a distribution of property 
 which would be incompatible with security. 
 
 When this contradiction exists between two of these ends, it 
 is necessary to find some means of deciding the pre-eminence ; 
 otherwise these principles, instead of guiding us in our researches, 
 will only serve to augment the confusion. 
 
 At the first glance we see subsistence and security arising toge-. 
 ther to the same level ; abundance and equality are manifestly of 
 inferior importance. In fact, without security, equality could 
 not last a day ; without subsistence, abundance could not exist 
 at all. The two first objects are life itself; the two latter, the 
 ornaments of life. 
 
 In legislation, the most important object is security. Though 
 no laws were made directly for subsistence, it might easily be 
 imagined that no one would neglect it. But unless laws are 
 made directly for security, it would be quite useless to make 
 them for subsistence. Tou may order production; you may 
 command cultivation; and you will have done nothing. But 
 assure to the cultivator the fruits of his industry, and perhaps 
 in that alone you will have done enough. 
 
 Security, as we have said, has many branches; and some 
 branches of it must yield to others. For example, liberty, which 
 is a branch of security, ought to yield to a consideration of the 
 general security, since laws cannot be made except at the ex- 
 pense of liberty. 
 
 "We cannot arrive at the greatest good, except by the sacrifice 
 of some subordinate good. All the diflculty consists in dis- 
 tinguishing that object which, according to the occasion, merits 
 pre-eminence. Tor each, ia its turn, demands it ; and a very 
 complicated calculation is sometimes necessary to avoid being 
 deceived as to the preference due to one or the other. 
 
PEINCIPLES OF THE CIVIL CODE. 99 
 
 Equality ought not to be favoured except in the cases in which 
 it does not interfere with security ; in which it does not thwart 
 the expectations which the law itself has produced, in which it 
 does not derange the order already established. 
 
 If aU property were equally divided, at fixed periods, the sure 
 and certain consequence would be, that presently there would be 
 no property to divide. All would shortly be destroyed. Those 
 whom it was intended to favour, would not suffer less from the 
 division than those at whoseexpense it was made. If the lot of 
 the industrious was not better than the lot of the idle, there 
 would be no longer any motives for industry. 
 
 To lay down as a principle that all men ought to enjoy a per- 
 fect equality of rights, would be, by a necessary connection of 
 consequences, to render all legislation impossible. The laws are 
 constantly establishing inequalities, siaoe they^jcannot give rights 
 to one without imposing obligations upon ancfther. To say that 
 all men — that is, all human beings — have equal rights, is to say 
 that there is no such thing as subordination. The son then has 
 the same rights with his father ; he has the same right to govern 
 and punish his father that his father has to govern and punish 
 him. He has as many rights in the house of his father as the 
 father himself. The maniac has the same right to shut up others 
 that others have to shut up him. The idiot has the same right 
 to govern his famUy that his family have to govern him. AH 
 this is fully implied in the absolute equality of rights. It means 
 this, or else it means nothing. I know very well that those who 
 maintain this doctrine of the equality of rights, not being them- 
 selves either fools or idiots, have no intention of establishing this 
 absolute equality. They have, in their own minds, restrictions, 
 modifications, explanations. But if they themselves cannot speak 
 in an intelligible manner, will the ignorant and excited multitude 
 understand them better than they understand themselves ? 
 
 H 2 
 
100 PEINCrPlES OP TlkB «jrVIL CODE. 
 
 CHAPTEE IV. 
 
 Laws relatively to Subsidence, 
 
 What can the law do for subsistence ? Nothing directly. All 
 it can do is to create motives, that is, punishments or rewards, by 
 the force of which men may be led to provide subsistence for 
 themselves. But nature herself has created these motives, and 
 has given them a sufficient energy. Before the idea of laws 
 existed, needs and enjoyments had done in that respect all that the 
 best concerted laws could do. Need, armed with pains of all 
 kinds, even death itself, commanded labour, excited courage, in- 
 spired foresight, developed all the faculties of man. Enjoyment, 
 the inseparable companion of every need satisfied, formed an in- 
 exhaustible fund of rewards for those who surmounted obstacles 
 ^nd fulfilled the end of nature. The force of the physical sanc- 
 tion being sufficient, the employment of the political sanction 
 -would be superfluous. 
 
 Besides, the motives which depend on laws are more or less 
 " precarious in their operation. It is a consequence of the imper- 
 fection of the laws themselves ; or of the difficulty of proving the 
 ■facts in order to apply punishment or reward. The hope of im- 
 ; punity conceals itself at the bottom of the heart during all the 
 - intermediate steps which it is necessary to take before arriving at 
 • the enforcement of the law. But the natural efiectsj which may 
 be regarded as nature's punishments and rewards, scarcely admit 
 ■ of any uncertainty. There is no evasion, no delay, no favour. 
 -Experience announces the event, and experience confirms it. 
 Each day strengthens the lesson of the day before ; and the 
 ^uniformity of this process leaves no room for doubt. "What could 
 be added by direct laws to the constant and irresistible power of 
 these natural motives ? 
 
 But the laws provide for subsistence indirectly, by protecting 
 men while they labour, and by making them sure of the fruits of 
 their labour. Security for the labouter, secwrity for the fruits of 
 labour ; such is the benefit of laws ; and it is an inestimable benefit. 
 
M51NCIP1ES OF THE crni CODE. 101 
 
 CHAPTER V. 
 
 Laws retativelg to Abundance. 
 
 Shali, laws be made directing individuals not to confine tliem- 
 Belves to mere subsistence, but to seek abundance ? No ! That 
 would be a very superfluous employment of artificial means, 
 where natural means suffice. The attraction of pleasure ; the 
 succession of wants ; the active desire of increasing happiness, 
 will procure unceasingly, under the reign of security, new efforts 
 towards new acquisitions. "Wants, enjoyments, those universal 
 agents of society, having begun with gathering the first sheaf of 
 corn, proceed litcle by little, to build magazines of abundance, 
 always increasing but never filled. Desires extend with means. 
 The horizon elevates itself as we advance ; and each new want, 
 attended on the one hand by pain, on the other by pleasure, 
 becomes a new principle of action. Opulence, which is only a 
 comparative term, does not arrest this movement once begun. 
 On the contrary, the greater our means, the greater the scale on 
 which we labour ; the greater is the recompense, and, conse- 
 quently, the greater also the force of motive which animates tc> 
 labour. Now what is the wealth of society, if not the sum of 
 all individual wealth? And what more is necessary than the 
 force of these natural motives, to carry wealth, by successive 
 movements, to the highest possible point ? 
 
 It appears that abundance is formed little by little, by the 
 continued operation of the same causes which produce subsist- 
 ence. Those who i/lame abundance under the name of luxury, 
 have never looked at it from this point of view. 
 
 Bad seasons, wars, accidents of all kinds, attack so often the 
 fund of subsistence, that a society which had nothing super- 
 fluous, and even if it had a good deal that was superfluous, would 
 often be exposed to want what is necessary. "We see this among 
 savage tribes ; it was often seen among aU nations, during the 
 times of ancient poverty. It is what happens even now, in 
 countries little favoured by nature, such as Sweden ; and in those 
 
103 PBINCITLES OP THE CIVIL CODE. 
 
 •where government restrains tie operations of commerce, instead 
 of confining itself to protection. But countries in -vrhich. luxury- 
 abounds, and Vfhere governments are enlightened, are above the 
 risk of famine. Such is the happy situation of England. "With 
 a free commerce, toys useless in themselves have their utility, 
 as the means of obtaining bread. Manufactures of luxury furnish 
 an assurance against famine. A brewery or a starch-factory might 
 be changed into a means of subsistence. 
 
 How often have we heard declamations against dogs and horses, 
 as devouring the food of men! Such declaimers rise but one 
 degree above those apostles of disinterestedness, "who set fire to 
 the magazines in order to cause an abundance of corn. 
 
 CHAPTER VI. 
 
 Pathological Propositions upon which the good of Equality is 
 founded. 
 
 Paihoiogt is a term used in medicine. It has tiot been intro- 
 duced into morals, where it is equally needed, though in a some- 
 what different sense. By pathology, I mean the study and the 
 knowledge of the sensations, affections, passions, and of their 
 effects upon happiness. Legislation, -which hitherto has been 
 founded in a great measure only upon the quicksands of pre- 
 judice and instinct, ought at last to be built upon the immoveable 
 basis of sensations and experience. It is necessary to have a 
 moral thermometer to make perceptible all the degrees of hap- 
 piness and misery. This is a term of perfection which it is not 
 possible to reach ; but it is well to have it before our eyes. I 
 know that a scrupulous examination of more or less, in the 
 matter of pain or pleasure, will at first appear a minute under- 
 taking. It will be said that in human affairs it is necessary to 
 act in gross ; to be contented -with a vague approximation. This 
 is the language of indifference or of incapacity. The sensations 
 of men are sufficiently regular to become the objects of a science 
 and an art. Yet hitherto we have seen but essays, blind attempts, 
 
PEmCIPLES OF THE CIVIL CODE. 103 
 
 and irregular efforts not ■well followed up. Medicine has for its 
 foundation tlie axioms of physical pathology. Morality is the 
 mediciae of the soul ; and legislation, which is the practical part 
 of it, ought to have for its foundation the axioms of mental 
 pathology. 
 
 To judge of the effect of a portion of wealth upon happiness, 
 it is necessary to consider it in three different states : — 
 
 1st. When it has always been in the hands of the holder. 
 
 2nd. "When it is leaving his hands. 
 
 3rd. When it is coming into them. 
 
 It is to be observed in general, that in speaking of the effect 
 of a portion of wealth upon happiness, abstraction is always to 
 be made of the particular sensibility of individuals, and of the 
 exterior circumstances in which they may be placed. Differences 
 of character are inscrutable ; and such is the diversity of circum- 
 stances, that they are never the same for two individuals. Unless 
 we begin by dropping these two considerations, it will be impos- 
 sible to announce any general proposition. But though each of 
 these propositions may prove false or inexact in a given indi- 
 vidual case, that will furnish no argument agaiast their specu- 
 lative truth and practical utility. It is enough for the justifica- 
 tion of these propositionsr— 1st, If they approach nearer the truth 
 than any others which can be substituted for them ; 2nd, If with 
 less inconvenience than any others they can be made the basis 
 of legislation. 
 
 I. Let us pass to the first case. The object beiag to examiae 
 the effect of a portion of wealth, when it has always been in the 
 1^9.nds of the holder, we may lay down the following propositions : — 
 
 1st. Each portion of wealth has a corresponding portion ofhap- 
 
 2nd. Of two individuals with unequal fortunes, he who has the 
 moat wealth has the most happiness. 
 
 3rd. The excess in happiness of the richer will not he so great 
 as the excess of his wealth. 
 
 4th. Por the same reasons, the greater the disproportion is 
 letween the two masses of wealth, the less is it probable that there 
 
104 PBINCIPLES 01' THE CIVIL CODE. 
 
 exists a disproportion equally great letween the eorresponding 
 masses of happiness. 
 
 5th. The nearer the actual proportion approaches to equality, 
 the grmter will he the total mass of happiness. 
 
 It is not necessary to limit what is here said of wealth to the 
 condition of those who are called wealthy. This word has a more 
 extensive signification. It embraces everything which serves 
 either for subsistence or abundance. It is for the sake of brevity 
 that the phrase portion of wealth is used instead ot portion of the 
 matter of wealth. 
 
 I have said that for each portion of wealth there is a correspond- 
 ing portion of happiness. To speak more exactly, it ought rather to 
 be said, a certain chance of happiness. For the efiS.cacy of a cause 
 of happiness is always precarious ; or, in other words, a cause of 
 happiness has not its ordinary effect, nor the same effect, upon 
 aU persons. Here is the place for mating an application of what 
 has been said concerning the sensibility and the character of 
 individuals, and the variety of circumstances ia which they are 
 found. 
 
 The second proposition is a direct consequence of the first. Of 
 two individuals, he who is the richer is the happier or has the 
 greater chance of leing so. This is a fact proved by the experience 
 of all the world. The first who doubts it shall be the very 
 witness I wiU. call to prove it. Let him give aU his superfluous 
 wealth to the first comer who asks him for it ; for this superfluity, 
 according to his system, is but dust in his hands ; it is a burden 
 and nothing more. The manna of the desert putrefied, if any 
 one collected a greater quantity than he could eat. If wealth 
 resembled that manna, and after passing a certain point was no 
 longer productive in happiness, no one would wish for it ; and 
 the desire of accumulation would be a thing unlmown. 
 
 The third proposition is less likely to be disputed. Put on one 
 side a thousand farmers, having enough to live upon, and a little 
 more. Put on the other side a king, or, not to be encumbered 
 with the cares of government, a prince, well portioned, himself 
 as rich as all the farmers taken together. It is probable, I say. 
 
PEINCIPLES OP THE CIVIL CODE. 105 
 
 that his happiness is greater than the average happiaess of the 
 thousand farmers ; but it is by no means probable that it is equal 
 to the sum total of their happiness, or, what amounts to the same 
 thing, a thousand times greater than the average happiness of one 
 of them. It would be remarkable if his happiness were ten times, 
 or even five times greater. The man who is born in the bosom 
 of opulence, is not so sensible . of its pleasures as he who is the 
 artisan of his own fortune. It is the pleasure of acquisition, not 
 the satisfaction of possessing, which gives the greatest delights. 
 The one is a lively sentiment, pricked on by the desires, and by 
 anterior privations, which rushes toward an unknown good; the 
 other is a feeble sentiment, weakened by use,, which is not 
 animated by contrasts, and which borrows nothing from the 
 imagination. 
 
 II. Passing to the second case, let us examine the effect of a 
 portion of wealth, when it enters for the first time into the hands 
 of a new possessor. It is to be observed that we must lay 
 expectation out of view. It is necessary to suppose that this 
 augmentation of fortune comes unexpectedly, as a gift of chance. 
 
 1st. A portion of wealth may he so far divided as to produce no 
 happiness at all for any of the participants. This is what would 
 happen, rigorously speaking, if the portion of each was less in 
 value than the smallest known coin. But it is not necessary to 
 carry the thing to that extreme, in order to make the proposition 
 true. 
 
 2nd. Among participants of equal fortunes, the more perfectly 
 equality is preserved in the distribution of a new portion of wealth, 
 the greater will he the total mass of happiness. 
 
 3rd. Among participants of unequal fortunes, the more the dis- 
 trihution of new wealth tends to do away that inequality, the greater 
 will he the total mass of happiness. 
 
 III. The third case requires us to examine the effect produced 
 by a portion of wealth which is leaving the hands of its former 
 possessor. Here, too, we must lay expectation out of view, and 
 suppose the loss to be unforeseen ; — and a loss almost always is 
 BO, because every man naturally expects to keep what he has. 
 
106 PEIWCIPLES OF THE CITIL CODE. 
 
 This expectation is founded upon tlie ordinary course of ttings. 
 Por in a general view of human affairs, wealth already acquired 
 is not only preserved, but increased. This is proved by the 
 extreme difference between the primitive poverty of every com- 
 munity and its actual wealth. 
 
 1st. The loss of a portion of wealth will produce, in the total hap- 
 piness of the loser, a defalcation greater or less, according to the 
 proportion of the part lost to the part which remains. 
 
 Take away from a man the fourth part of his fortune, and 
 you take away the fourth part of his happiness, and so on.* 
 
 But there are cases in which the proportion would not be the 
 same. If, in taking away from me three-fourths of my fortune, 
 you take away what is necessary for my physical support, and if, 
 in taking away half of it, you would have left that necessary 
 portion untouched, the defalcation of happiness, instead of being 
 twice as great in the first case as in the second, wUl be four times, 
 ten times, indefinitely greater. 
 
 2nd. This granted, fortunes heing equal, the greater the number 
 of persons among whom a loss is shared, the less considerable will be 
 the defalcation from the sum total of happiness. 
 
 3rd. After passing a certain point, division renders the several 
 quotas impalpable, and the defalcation in the sum total of happiness 
 amounts to nothing. 
 
 4th. Fortunes being unequal, the loss of happiness produced by a 
 given loss of wealth will become less in proportion as the distribution 
 of the loss shall tend towards the production of an exact equality. 
 But in this case we must lay out of view the inconveniences 
 attendant on the violation of security. 
 
 Governments, profiting by the progress of knowledge, have 
 
 * It is to this head that the evils of deep play ought to be referred. 
 Though the ohanqes, so far as relates to money, are equal, in regard to 
 pleasure, they are always unfavourahle. I have a thousand pounds. The 
 stake is five hundred. If I lose, my fortune is diminished one-half; if I 
 gain, it is increased only by a third. Suppose the stake to be a thousand 
 pounds. If I gain, my happiness is not doubled with my fortune ; if 1 
 lose, my happiness is destroyed; I am reduced to indigence. 
 
PEINCIPLES OP THE CIVIL CODE. 107 
 
 favoured, in many respects, the principle of equality in tlie distri- 
 bution of losses. It is thus that they have taken under the pro- 
 tection of the larws poUcies of insurance, those useful contracts by 
 which individuals assess themselves beforehand to provide against 
 possible losses. The principle of insurance, founded upon a cal- 
 culation of probabilities, is but the art of distributing losses among 
 so great a number of associates as to make them very light, and 
 almost nothing. 
 
 The same spirit has influenced sovereigns vrhen they have 
 indemnified, at the expense of the state, those of their subjects 
 who have suffered either by public calamities or by the devas- 
 ' tations of war. "We have seen nothing of this kind wiser or better 
 managed than the administration of the great Frederic. It is one 
 of the finest points of view under which the social art can be 
 considered. 
 
 Some attempts have been madd to indemnify individuals for 
 losses caused by the offences of malefactors. , But examples of this 
 kind are yet very rare. It is an object which merits the attention 
 of legislators; for it is the means of reducing almost to nothing 
 the evil of offences which attack property. To prevent it from 
 becoming injurious, such a system must be arranged with care. 
 It will not do to encourage indolence and imprudence in the 
 neglect of precautions against offences, by making them sure of 'an 
 indemnification ; and it is necessary to guard even more cautiously 
 against fraud and secret connivances which might counterfeit 
 offences, and even produce them, for the sake of the indemnity. 
 The utility of this remedial process would depend entirely on the 
 way in which it was administered ; yet the rejection of a means so 
 salutary can only originate in a culpable indifference, anxious to 
 save itself the trouble of discovering expedients. 
 
 The principles we have laid down may equally serve to regulate 
 the distribution of a loss among many persons charged with a 
 common responsibility. If their respective contributions corre- 
 spond to the respective qtiantity of their fortunes, their relative 
 state will be the same as before ; but if it is desired to improve 
 this occasion for the purposes of an approach towards equality, it 
 
108 PEINCIPLES OP THE CIVIL CODE. 
 
 is necessary to adopt a different proportion. To levy an equal 
 impost, without regard to differences of fortune, would be a third 
 plan, which would be agreeable neither to equality nor security. 
 
 To place this subject -in a clearer light, I shall present a mixed 
 case, in which it is necessary to decide between two individuals, 
 of whom one demands a profit at the expense of the other. The 
 question is to determine the effect of a portion of wealth which, 
 passing into the hands of one individual under the form of gain, 
 must come out of the hands of another in the form of loss. 
 
 1st. Among competitors of equal fortunes, when that which 
 is gained ly one must he lost ly another, the arrangement pro- 
 ductive of the greatest sum of good will he that which favours the 
 old possessor to the exclusion of the new demandant. 
 
 For, in the first place, the sum to be lost, bearing a greater 
 proportion to the reduced fortune than the same sum to the 
 augmented fortune, the diminution of happiness for the one will 
 be greater than the augmentation of happiness for the other ; in 
 one word, equality will be violated by the contrary arrange- 
 ment.* 
 
 In the second place, the loser will experience a pain of disap- 
 pointment; the other merely does not gaiu. Now the negative 
 evil of not acquiring is not equal to the positive evil of losing. 
 If it were, as every man would experience this evil for all that 
 he does not acquire, the causes of suffering would be infinite, 
 and men would be infinitely miserable. 
 
 In the third place, men in general appear to be more sensitive 
 to pain than to pleasure, even when the cause is equal. To such 
 a degree, indeed, does this extend, that a loss which diminishes a 
 man's fortune by one-fourth, will take away more happiness than 
 he could gain by doubling his property. 
 
 2nd. Fortunes being unequal, if the loser is the poorer, the evil 
 of the loss will le aggravated ly that inequality. 
 
 3rd. If the loser is the richer, the evil done ly an attach vpon 
 security will le compensated in part ly a good which will le great 
 in proportion to the progress towards equality. 
 
 * See the note upon gaming. This case is exactly the same. 
 
PKINOIMES OP THE CITIL CODE. 109 
 
 By th.e aid of these maxims, wMoh, to a certain point, have the 
 character and the certainty of mathematical propositions, there 
 might be at last produced a regular and constant art of indemnities 
 and satisfactions. Legislators have frequently shown a disposition 
 to promote equality under the name of equity, a word to which a 
 greater latitude has been given than to justice. But this idea of 
 equity, vague and half developed, has rather appeared an affair 
 of instinct than of calculation. It was only by much patience 
 and method that it was found possible to reduce to rigorous pro- 
 positions an incoherent multitude of confused sentiments. 
 
 CHAPTER VII. 
 
 Of Security. 
 
 We come now to the principal object of law, — the care of 
 security. That inestimable good, the distinctive index of civili- 
 zation, is entirely the work of law. Without law there is no 
 security ; and, consequently, no abundance, and not even a cer- 
 tainty of subsistence ; and the only equality which can exist in 
 such a state of things is an equality of misery. 
 
 To form a just idea of the benefits of law, it is only necessary 
 to consider the condition of savages. They strive incessantly 
 against famine ; which sometimes cuts off entire tribes. Rivalry 
 for subsistence produces among them the most cruel wars; and, 
 like beasts of prey, men pursue men, as a means of sustenance. 
 The fear of this terrible calamity silences the softer sentiments 
 of nature ; pity unites with insensibility in putting to death the 
 old men who can hnnt no longer. 
 
 Let us now examine what passes at those terrible epochs when 
 civilized society returns almost to the savage state ; that is, during 
 war, when the laws on which security depends are in part sus- 
 pended. Every instant of its duration is fertile in calamities ; at 
 every step which it prints upon the earth, at every movement 
 which it makes, the existing mass of riches, the fund of abundance 
 and of subsistence, decreases and disappears. The cottage is 
 
110 PKINCIPIES OF THE CITIL COKE. 
 
 ravaged as ■well as the palace ; and ho-w often tie rage, the caprice 
 even of a moment, delivers up to destruction the slo-w produce of 
 the labours of an age ! 
 
 Law alone has done that -which all the natural sentiments 
 united have not the power to do. Law alone is able to create a 
 fixed and durable possession which merits the name of property. 
 Law alone can accustom men to bow their heads under the yoke 
 of foresight, hard at first to bear, but afterwards light and agree- 
 able. Nothing but law can encourage men to labours superfluous 
 for the present, and which can be enjoyed only in the future. 
 Economy has as many enemies as there are dissipators — men who 
 wish to enjoy without giving themselves the trouble of producing. 
 Labour is too painful for idleness ; it is too slow for impatience. 
 Fraud and injustice secretly conspire to appropriate its fruits. 
 Insolence and audacity think to ravish them by open force. Thus 
 security is assailed on every side — ever threatened, never tran- 
 quil, it exists in the midst of alarms. The legislator needs a 
 vigilance always sustained, a power always in action, to defend it 
 against this crowd of indefatigable enemies. 
 
 Law does not say to man, Labov/r, and, I will reward you ; but it 
 says : Zahour, and Twill assure to you the enjoyment of the fruits 
 of your labour — that natural and sufficient recompense which without 
 me you cannot preserve ; I will insure it ly arresting the hand 
 which may seelc to ra/vish it from you. If industry creates, it is 
 law which preserves ; if at the first moment we owe all to labour, 
 at the second moment, and at every other, we are indebted for 
 everything to law. 
 
 To form a precise idea of the extent which ought to be given 
 to the principle of security, we must consider that man is notKke 
 the animals, limited to the present, whether as respects suffering 
 or enjoyment ; but that he is susceptible of pains and pleasures 
 by anticipation ; and that it is not enough to secure him from 
 actual loss, but it is necessary also to guarantee him, as far as 
 possible, against future loss. It is necessary to prolong the idea 
 of his security through all the perspective which his imagination 
 is capable of measuring. 
 
PEINCIPLES OF THE CIVIL CODE. Ill 
 
 This presentiment, which has so marked an influence upon the 
 fate of man, is called expectation. It is hence that we have the 
 power of forming a general plan of conduct ; it is hence that 
 the successive instants which compose the duration of life are not 
 like isolated and independent points, hut become contiuuous parts 
 of a whole. Expectation is a chain which unites our present 
 existence to our future existence, and which passes heyond us to 
 the generation which is to follow. The sensibility of man extends 
 through all the links of this chain. 
 
 The principle of security extends to the maintenance of aU 
 these expectations ; it requires that events, so far as they depend 
 upon laws, should conform to the expectations which law itself 
 has created. 
 
 Every attack upon this sentiment produces a distinct and special 
 evil, which may be called a, pain of disappointment. 
 
 It is a proof of great confusion in the ideas of lawyers, that 
 they have never given any particular attention to a sentiment 
 which exercises so powerful an influence upon human life. The 
 word expectation is scarcely found in their vocabulary. Scarce a 
 single argument founded upon that principle appears in their 
 writings. They have followed it, without doubt, in many 
 respects ; but they have followed it by instinct rather than by 
 reason. If they had known its extreme importance they would 
 not have failed to name it and to mark it, instead of leaving it 
 unnoticed in the crowd. 
 
 CHAPTER YIII. 
 
 Of Property. 
 
 The better to understand the advantages qf law, let us endea- 
 vour tp form a clear idea of property. "We shall see that there 
 is no such thing as natural property, and that it is entirely the 
 work of law. 
 
 Property is nothing but a basis of expectation ; the expecta- 
 tion of deriving certain advantages from a thing which we axe 
 
112 PEINCIPIES OF THE CIVIL CODE. 
 
 said to possess, in consequence of the relation in which we stand 
 towards it. 
 
 There is no image, no painting, no visible trait, which can 
 express the relation that constitutes property. It is not material, 
 it is metaphysical ; it is a mere conception of the mind. 
 
 To have a thing in our hands, to keep it, to make it, to sell it, 
 to work it up into something else ; to use it — ^none of these 
 physical circumstances, nor all united, convey the idea of pro- 
 perty. A piece of stuff which is actually in the Indies may 
 belong to me, while the dress I wear may not. The aliment 
 which is incorporated iuto my very body may belong to another, 
 to whom I am bound to account for it. 
 
 The idea of property consists in an established expectation ; 
 in the persuasion of being able to draw such or such an advan- 
 tage from the thing possessed, according to the nature of the 
 case. Now this expectation, this persuasion, can only be the 
 work of law. I cannot count upon the enjoyment of that which 
 I regard as mine, except through the promise of the law which 
 guarantees it to me. It is law alone which permits me to forget 
 my natural weakness. It is only through the protection of law 
 that I am able to inclose a field, and to give myself up to its 
 cultivation with the sure though distant hope of harvest. 
 
 But it may be asked, What is it that serves as a basis to law, 
 upon which to begin operations, when it adopts objects which, 
 under the name of property, it promises to protect ? Have not 
 men, in the primitive state, a natural expectation of enjojdng 
 certain things, — an expectation drawn from sources anterior to 
 law? 
 
 Yes. There have been from the beginning, and there always 
 wiU be, circumstances in which a man may secure himself, by 
 his own means, in the enjoyment of certain things. But the 
 catalogue of these cases is very limited. The savage who has 
 killed a deer may hope to keep it for himself, so long as his cave 
 is undiscovered; so long as he watches to defend it, and is 
 stronger than his rivals ; but that is aU. How miserable and 
 precarious is such a possession ! If we suppose the least agree- 
 
PEINCIPLES OP THE CITIL CODE. IIS 
 
 ment among savages to respect the acq[uisitions of each, other, 
 ■we see the introduction, of a principle to which no name can be 
 given but that of law. A feeble and momentary expectation 
 may result from time to time from circumstances purely physical; 
 but a strong and permanent expectation can result only from 
 law. That ■which, in the natural state, was an almost invisible 
 thread, in the social state becomes a cable. 
 
 Property and law are bom together, and die together. Before 
 laws ■were made there "was no property; take away laws, and 
 property ceases. 
 
 As regards property, security consists in receiving no check, 
 no shock, no derangement to the expectation founded on the laws, 
 of enjoying such and such a portion of good. The legislator owes 
 the greatest respect to this expectation which he has himself pro- 
 duced. When he does not contradict it, he does what is essen- 
 tial to the happiness of society ; "when he disturbs it, he always 
 produces a proportionate sum of evU. 
 
 CHAPTER IX. 
 
 Answer to an Oljection. 
 
 Bttt perhaps the laws of property are good for those who have 
 property, and oppressive to those -who have none. The poor man,, 
 perhaps, is more miserable than he ■would be without laws. 
 
 The laws, in creating property, have created riches only in 
 relation to poverty. Poverty is not the work of the laws; it is 
 the primitive condition of the human race. The man who sub- 
 sists only from day to day is precisely the man of nature^-the 
 savage. The poor man, in civilized society, obtains nothing,. I 
 admit, except by painful labour ; but, in the natural state, can 
 he obtain anything except by the sweat of his brow ? Has not 
 the chase its fatigues, fishing its dangers, and war its uncer- 
 tainties ? And if man seems to love this adventurous life ; if he 
 has an instinct warm for this kind of perils ; if the savage enjoys 
 with delight an idleness so dearly bought;— must we thence con- 
 
 I 
 
114 mnfcrpLES op the cmi. code. 
 
 elude that he is happier than our cultivators ? "No. Their labour 
 is more uniform, but their re-watd is more sure ; the woman's lot 
 is far more agreeable ; childhood and old age have more resources ; 
 the species multiplies ia a proportion a thousand times greater, — 
 and that alone suffices to show on which side is the superiority 
 of happiaess. Thus the laws, in creating riches, are the bene- 
 factors of those who remain in the poverty of nature. All par- 
 ticipate more or less in the pleasures, the advantages, and the 
 resources of civilized society. The industry and the labour of the 
 poor place them among the candidates of fortune. And have they 
 not the pleasures of acquisition ? Does not hope mix with their 
 labours ? Is the security which the law gives of no importance 
 to them ? Those who look down from above upon the inferior 
 ranis see aU objects smaller ; but towards the base of the pyra-; 
 mid it is the summit which in turn is lost. Comparisons are 
 never dreamed of; the wish of what seems impossible does not 
 torment. So that, in fact, all things considered, the protection 
 of the laws may contribute as mu,ch to the happiness of the 
 cottage as to the security of the palace. 
 
 It is astonishing that a writer so judicious as Beeoaria has in- 
 terposed, in a work dictated by the soundest philosophy, a doubt 
 subversive of social order. The right of property, he says, is a 
 terrible right, which perhaps is not necesswry. Tyrannical and 
 sanguinary laws have been founded upon that right ; it has been 
 frightfully abused; but the right itself presents only ideas of 
 ■pleasure, abundance, and security. It is that right which has 
 Tanquished the natural aversion to labour ; which has given to 
 man the empire of the earth ; which has brought to an end the 
 migratory life of nations ; which has produced the love of country 
 and a regard for posterity. Men universally desire to enjoy 
 speedily — ^to enjoy without labour. It is that desire which is 
 terrible ; since it arms all who have not agaiQst all who have. 
 The law which restrains that desire is the noblest triumph of 
 humanity over itsel£ 
 
PEnsrciPLES OP the civil code. 115 
 
 CHAPTER X. 
 
 Analysis of the Evils which result from Attach v^on Property. 
 
 We have already seen, tliat subsistence depends upon tte laws 
 ■wMcli assure to tlie labourer tbe produce of his labour. But it is 
 
 • desirable more exactly to analyze the evils vrhich result from 
 violations of property. They may be reduced to four heads. 
 
 1st. Evil of Non-Possession. — ^If the acquisition of a portion of 
 wealth is a good, it follows that the non-possession of it is an evU, 
 though only a negative evil. Thus, although men in the condition 
 of primitive poverty may not have specially felt the want of a 
 good which. they knew not, yet it is clear that they have lost all 
 the happiaess which might have resulted from its possession, and 
 of which we have the enjoyment. The loss of a portion of good, 
 though we knew nothing of it, is still a loss. Are you doing me 
 no harm when, by false representations, you dpter my friend from 
 
 ■ conferring upon me a favour which I did not expect ? In what 
 
 consists the haxm ? In the negative evil which results from not 
 
 possessing that which, but for your falsehoods, I should have had. 
 
 2nd. Pain of Losing. — Everything which I possess, or to which 
 
 I have a title, I consider in my own mind as destLned always to 
 
 . belong to me. I make it the basis of my expectations, and of the 
 hopes of those dependent upon me ; and I form my plan of life 
 accordingly. Every part of my property may have, in my esti- 
 
 . mation, besides , its intrinsic value, a value of affection — as an 
 inheritance from my ancestors, as the reward of my own labour, 
 or as the.fature dependence of my children. Everything about 
 
 - it represents to my eye that part of myself which I have put into 
 it — those cares, that industry,, that economy which denied itself 
 present pleasures to make provision for the future. Thus our 
 property becomes a part of oiu: being, and cannot be torn fromus 
 without rending us to the quick. 
 
 3rd. Fem of Losing. — To regret for what we have lost is joined 
 inquietude as to what we possess, and even as to what we may 
 acquire. Eor the greater part of the objects which compose sub- 
 
 I 2 
 
116 PEINCIPLES OP THE CIVIL CODE. 
 
 sistence and abundance being perishable matters, future acqui- 
 sitions are a necessary supplement to present possessions. Wlien- 
 insecurity reaches a certain point, the fear of losing prevents us 
 from enjoying what we possess already. The care of preserving 
 condemns us to a thousand sad and painful precautions, •which yet 
 are always liable to fail of their end. Treasures are hidden or 
 conveyed awav. Enjoyment becomes sombre, furtive, and soli- 
 tary. It fears to show itself, lest cupidity should be informed of 
 a chance to plunder. 
 
 4th. Deadening of Industry. — "When I despair of making myself 
 sure of the produce of my labour, I only seek to exist from day 
 to day. I am unwiUing to give myself cares which will only be 
 profitable to my enemies. Besides, the will to labour is not 
 enough; means are wanting. "While waiting to reap, in the 
 meantime I must live. A single loss may deprive me of the 
 capacity of action, without having quenched the spirit of industry, 
 or without having paralyzed my will. Thus the three first evils 
 -affect the passive faculties of the individual, while the fourth 
 extends to his active faculties, and more or less benumbs them. 
 
 It appears from this analysis that the two first evUs do not go 
 beyond the individual injured ; while the two latter spread through 
 society, and occupy an indefinite space. An attack upon the pro- 
 perty of an individuEd excites alarm among other proprietors. 
 This sentiment spreads from neighbour to neighbour, till at last 
 the contagion possesses the entire body of the state. 
 
 Power and will must unite for the development of industry. 
 "Will depends upon encouragement ; power upon means. These 
 means are what is called, in the language of political economy, 
 productive capital. When the question relates only to an indi- 
 vidual, his productive capital may be aimihilated by a single loss, 
 while his spirit of industry is not extinguished, nor even weakened. 
 When the question is of a nation, the annihilation of its pro- 
 ductive capital is impossible ; but a long time before that fatal 
 term is approached, the evil may infect the will ; and the spirit 
 of industry may faU into a fatal lethargy, in the midst of natural 
 resources offered by a rich and fertile soil. The wiU, however. 
 
PEINCIPLES OP IHE CIVH CODE. 117 
 
 is excited by so many stimulajits, ttat it resists an. abundance of 
 discouragements and losses. A transitory calamity, though great, 
 never destroys the spirit of industry. It is seen to spring up, 
 after devouring vrars which, have impoverished nations, as a robust 
 oak, mutilated by tempests, repairs its losses in a few years and 
 covers itself with new branches. Nothing is sufficient to deaden 
 industry, except the operation of a domestic and permanent cause, 
 such as a tyrannical government, bad legislation, an intolerant 
 religion which drives men from the country, or a minute super- 
 stition which stupifles them. 
 
 A first act of violence produces immediately a certaia degree 
 of apprehension ; some timid spirits are already discouraged. A 
 second violence, which soon succeeds, spreads a more considerable 
 alarm. The more prudent begia to retrench their enterprises, 
 and little by little to abandon an uncertain career. In proportion 
 as these attacks are repeated, and the system of oppression takes 
 a more habitual character, the dispersion increases. Those who 
 fly are not replaced; those who remain fall into a state of languor. 
 Thus the field ' of industry, beaten by perpetual storms, at last 
 becomes a desert. 
 
 Asia Minor, Greece, Egypt, the coasts of Africa, so rich in agri- 
 culture, in commerce, and in population, at the flourishing epoch 
 of the Eoman empire, what have they become under the absurd 
 despotism of the Turkish government? Palaces have been 
 changed into cabins, and cities into hatrlets. That governmeni, 
 odious to every thinking man, has. never known .that a state 
 cannot grow rich except by an inviolable respect for property. It 
 has never had but two secrets of statesmanship, — to sponge the 
 people, and to stupify them. Thus the finest countries of the 
 earth, wasted, barren, and almost abandoned, can hardly be recog- 
 nised under the hands of barbarous conquerors. 
 
 These evils ought not to be attributed to foreign causes. Civil 
 wars, invasions, natural scourges, may dissipate wealth, put the 
 arts to flight, and swallow up cities. But choked harbours are 
 opened again ; communications are re-established ; manufactures 
 revive ; cities rise from their ruins. All ravages are repaired by 
 
118 naofciriES of the ctvii. code. 
 
 time, while men contimie to be men ; but there are no men to be 
 found in those unhappy countries, where the slow but fatal 
 despair of long insecurity has destroyed aU the active faculties 
 of the soul. 
 
 If we trace the history of this contagion, we shall see its first 
 attacks directed against that part of society which is easy and well 
 off. Opulence is the object of the first depredations. Apparent 
 superfluity vanishes little by little. Absolute need makes itself 
 be obeyed in spite of obstacles. We must live ; but when man 
 limits himself to Hving, the state languishes, and the lamp of 
 industry throws out only a dying fiame. Besides, abundance is 
 never so distinct from subsistence, that one can be destroyed with- 
 out a dangerous blow at the other. "While some lose only what 
 is superfluous, others lose a part of what is necessary ; for by the 
 infinitely complicated system of economical connections, the 
 opulence of a part of the citizens is the only fund upon which a 
 part more numerous depends for subsistence. 
 
 But another picture may be traced, more smiling and not less 
 instructive. It is the picture of the progress of security, and of 
 prosperity, its inseparable companion. North America presents 
 to 'US a most striking contrast. Savage nature may be seen there, 
 side by side with civilized nature. The interior of that immense 
 region offers only a frightful solitude, impenetrable forests or 
 sterile plains, stagnant waters and impure vapours ; such is the 
 earth when left to itself. The fierce tribes which rove through 
 those deserts without fixed habitations, always occupied with the 
 pursuit of game, and animated against each other by implacable 
 rivalries, meet only for combat, and often succeed ia destroying 
 each other. The beasts of the forest are not so dangerous to man 
 as he is to himself. But on the borders of these frightful soli- 
 tudes, what different sights are seen ! "We appear to comprehend 
 in the same view the two empires of good and evU. Forests give 
 place to cultivated fields ; morasses are dried up, and the surface, 
 grown firm, is covered with meadows, pastures, domestic animals, 
 habitations healthy and smiling. Eising cities are buUt upon 
 regular plans; roads are constructed to communicate between 
 
PBINCIPIES OP THE dTIL CODE. 119 
 
 them ; everything announces that men, seeking the means , of 
 intercourse, have ceased to fear and to murder each other. Har- 
 bours filled with vessels receive all the productions of the earth, 
 and assist in the exchange of all kinds of riches. A numerous 
 people, Hving upon their labour in peace and abundance, has 
 succeeded to a few tribes of hunters, always placed between war 
 and famine. "What has wrought these prodigies? Who has 
 renewed the surface of the earth ? Who has given to man this 
 domain over nature — over nature embellished, fertUized, and 
 perfected ? That beneficent genius is Secwrity. It is security 
 which has wrou^t this great metamorphosis. And how rapid 
 are its operations ? It is not yet two centuries since William 
 Penn landed upon those savage coasts, with a colony of true con- 
 querors, men of peace, who did not soU their establishments with 
 blood, and who made themselves respected by acts of beneficence 
 and justice. 
 
 CHAPTEE XI. 
 
 Opposition letween Security and Uquality'. 
 
 lu consulting the grand principle of security, what ought the 
 legislator to decree respecting the mass, of property already 
 existing ? 
 
 He ought to maintain the distribution as it is actually established. 
 It is this which, under the name of justice, is regarded as his first 
 duty. This is a general and simple rule, which applies itself to 
 aU states ; and which adapts itself to all places, even those of the 
 most opposite character. There is nothing more different than 
 the state of property in America, in England, in Hungary, and 
 in Eussia. Generally, in the first of these countries, the culti- 
 vator is a proprietor; in the second, a tenant; in the third, 
 attached to the glebe; in the fourth, a slave. However, the 
 supreme principle of security commands the preservation of all 
 these distributions, though their nature is so different, and though 
 they do not produce the same sum of happiness. How make 
 
120 PEINCIPIES OP THE CIVH. CODE. 
 
 another distributioii without taking away from each that which he 
 has ? And how despoil any without attacking the security of all? 
 When your new repartition is disarranged — that is to say, the day 
 after its estahlishment — how avoid making a second ? Why not 
 correct it in the same way ? And in the meantime, what becomes 
 of security ? Where is happiness ? Where is industry ? 
 
 When security and equality are in conflict, it wiU not do to 
 hesitate a moment. Equality must yield. The first is the found- 
 ation of life ; subsistence, abundance, happiness, everything de- 
 pends upon it. Equality produces only a certain portion of good. 
 Besides, whatever we may do, it will never be perfect ; it may 
 exist a day ; but the revolutions of the morrow will overturn it. 
 The establishment of perfect equality is a chimera ; all we can 
 do is to diminish inequality. 
 
 If violent causes, such as a revolution of government, a division, 
 or a conquest, should bring about an overturn of property, it 
 would be a great calamity ; but it would be transitory ; it would 
 diminish ; it would repair itself in time. Industry is a vigorous 
 plant which resists many amputations, and through which a 
 nutritious sap begins to circulate with the first rays of returning 
 summer. But if property should be overturned with the direct 
 intention of establishing an equality .of possessions, the evil would 
 be irreparable. No more security, no more industry, no more 
 abundance ! Society would return to the savage state whence it 
 emerged. 
 
 If equality ought to prevail to-day it ought to prevail always. 
 Tet it cannot be preserved except by renewing the violence by 
 which it was established. It will need an army of inquisitors 
 and executioners as deaf to favour as to pity ; insensible to the 
 seductions of pleasure ; inaccessible to personal interest ; endowed 
 with all the virtues, though in a service which destroys them aU. 
 The leveUing -apparatus ought to go incessantly backward and 
 forward, cutting off all that rises above the line prescribed. A 
 ceaseless vigilance would be necessary to give to those who had 
 dissipated their portion, and to take from those who by labour 
 had augmented theirs. In such an order of things there would 
 
PEINCIPLES OF THE CIVIL COBE. 121 
 
 be only one wise course for the governed, — that of prodigality ; 
 there would be but one foolish course, — that of industry. This 
 pretended remedy, seemingly so pleasant, would be a mortal 
 poison, a burning cautery, which would consume till it destroyed 
 the last fibre of life. The hostile sword in its greatest furies is a 
 thousand times less dreadful. It inflicts but partial evils, which 
 time effaces and industry repairs. 
 
 Some small societies, in the first effervescence of religious 
 enthusiasm, have established the community of goods as a funda- 
 mental principle. Does any one imagine that happiness was 
 gained by that arrangement ? Por the sweet power of reward is 
 substituted the sad impulses of pain. Labour, so easy and so 
 light, when animated by hope, it is necessary under these 
 systems to represent as a penitential means of escaping eternal 
 punishment. So long as the religious impulse preserves its 
 power, all labour, but aU groan. So soon as it begins to grow 
 weak, the society divides into two classes : one composed of de- 
 graded fanatics, contracting all the vices of an unhappy super- 
 stition; the others, lazy rogues, who are supported in a holy 
 indolence by the dupes who surround them. The word equality 
 becomes a mere pretext — a cover to the robbery which idleness 
 perpetrates upon industry. 
 
 Those ideas of benevolence and of concord which have seduced 
 some ardent soiils into an admiration of this system are only 
 chimeras of the imagination. In the distribution of labours, 
 what motive could determine any to embrace the more painful ? 
 "Who would undertake gross and disagreeable functions ? "Who 
 would be content with his lot ? Who would not find the burden 
 of his neighbour lighter than his own ? How many frauds would 
 be contrived in order to lay upon others the labour from which 
 all would endeavour to exempt themselves ? And, in the division, 
 how impossible to satisfy all: to preserve the appearances of 
 equality; to prevent jealousies, quarrels, rivalries, preferences. 
 "Who would settle the numberless disputes for ever breaking out ? 
 "What an apparatus of penal laws would be necessary as a sub- 
 stitute for the sweet liberty of choice, and the natural recompense 
 
122 PETN-CrPlES OP THE CIVH CODE. 
 
 of labour ! One half the society -would not suffice to regulate 
 the other half. Thus this absurd and unjust system ■would only 
 be able to maintain itself by means of a political and religious 
 slavery, such as that of the Helots at Lacedaemon and the Indians 
 of Paraguay, in the establishments of the Jesuits. Sublime in- 
 vention of legislators, which, to accomplish a plan, of equality, 
 makes two corresponding lots of good and of evil, and puts all 
 the pain on one side and aU the enjoyment on the other ! 
 
 CHAPTER XII. 
 
 Means of uniting Security and Equality. 
 
 Is it necessary that between these two rivals, Security and 
 Equality, there should be an opposition, an eternal war ? To a 
 certain point they are incompatible ; but with a little patience 
 and address they may, in a great measure, be reconciled. 
 
 The only mediator between . these contrary interests is time. 
 Do you wish to foUow the counsels of equality without contra- 
 vening those of security ? — await the natural epoch which puts 
 an end to hopes and fears, the epoch of death. 
 
 "When property by the death of the proprietor ceases to have 
 an owner, the law can interfere in its distribution, either by 
 limiting in certain respects the testamentary power, in order to 
 prevent too great an accumulation of wealth in the hands of an 
 individual ; or by regulating fhe succession in favour of equality 
 in cases where the deceased has left no consort, nor relation in 
 the direct line, and has made no will. The question then relates 
 to new acquirers who have formed no expectations; and equality 
 may do what is best for aU without disappointing any. At pre- 
 sent I only indicate the principle : the development of it may be 
 seen in the second book. 
 
 When the question is to correct a kind of civil inequality, 
 such as slavery, it is necessary to pay the same attention to the 
 right of property; to submit it to a slow operation, and to 
 advance towards the subordinate object without sacrificing the 
 
PEUfCIPIES OF THE CIVIL CODE. 123 
 
 principal object. Men •who are rendered free by these grada- 
 tions, will be mucb more capable of being so than if you had 
 taught them to tread justice under foot, for the sake of intro- 
 ducing a new social order. 
 
 It is worthy of remark that, in. a nation prosperous in its 
 agriculture, its manufactures, and its commerce, there is a con- 
 tinual progress towards equality. If the laws do nothing to 
 combat it, if they do not maintain certain monopolies, if they 
 put no shackles upon industry and trade, if they do not permit 
 entails, we see great properties divided little by little, without 
 effort, without revolution, without shock, and a much greater 
 number of men coming to participate in the moderate favours of 
 fortune. This is the natural result of the opposite habits which 
 are formed in opulence and in poverty. The first, prodigal and 
 vain, wishes only to enjoy without labour ; the second, accus- 
 tomed to obscurity and privations, finds pleasures even in labour 
 and economy. Thence the change which has been made in 
 Europe by the progress of arts and commerce, in spite of legal 
 obstacles. We are at no great distance from those ages of 
 feudality, when the world was divided into two classes : a 
 few great proprietors, who were everything, and a multitude 
 of serfs, who were nothing. These pyramidal heights have 
 disappeared or have fallen; and from their ruins industrious 
 men have formed those new establishments, the great number of 
 which attests the comparative happiness of modern civilization. 
 Thus we may conclude that Security, while preserving its place 
 as the supreme principle, leads indirectly to Equality; while 
 equality, if taken as the basis of the social arrangement, will 
 destroy both itself and security at the same time. 
 
124 PRINCIPLES OF THE CIVIL CODE. 
 
 CHAPTEE XIII. 
 
 Sacrifice of Security to Security. 
 
 This title appears at first enigmatical, but the sense of the enigma 
 may easily be found. 
 
 There is an important distinction between the ideal perfection 
 of security, and its practicable perfection. The first would 
 demand that nothing should ever be taken from anybody. The 
 second is satisfied, if nothing is taken beyond what is necessary 
 for the preservation of the rest. 
 
 This sacrifice is not an attack upon security ; it is simply a 
 defalcation. An attack is an unexpected shock, an evil which 
 cannot be calculated, an irregularity which has no fixed principle. 
 It seems to put all the rest in peril ; it produces a general alarm. 
 But a defalcation is a fixed, regular, and necessary deduction, 
 which is expected ; which produces only an evil of the first order ; 
 but no danger, no alarm, no discouragement to industry. The 
 same sum of money, according to the way in which it is levied, 
 wUl have one or the other of these characters ; and wiU conse- 
 quently produce either the deadening effects of insecurity, or the 
 vivifying results of confidence. 
 
 The necessity of these defalcations is evident. To labour, and 
 to guard the labourers, are two different operations, which cannot 
 be performed at the same time, by the same persons. It is neces- 
 sary that those who produce wealth by labour should lay aside 
 some portion of it, to support the guardians of the state. "Wealth 
 can only be defended at its own expense. 
 
 Society, attacked by enemies, whether foreign or domestic, can 
 only maintain itself at the expense of security, — not the security 
 of those enemies alone, but the security even of the very persons 
 to whom protection is extended. 
 
 If there are men who do not perceive this necessary connection, 
 it is because in this matter, as in many others, the want of to-day 
 eclipses that of yesterda;y. The whole of government is but a 
 tissue of sacrifices. The best is that in which these sacrifices 
 
PEINCIPIES OF THE CIVIL CODE. 125 
 
 are reduced to their lowest term. The practical perfection of 
 Beourity is a quantity which tends without ceasing to approach 
 an ideal perfection. 
 
 " It is not necessary to iacrease the real wants of the people, 
 to satisfy imaginary wants of state." 
 
 " Imaginary wants are those created hy the passions and the 
 weaknesses of men who govern, by the charm of an extraordinary 
 project, the disordered love of empty glory, and a certain power- 
 lessness of mind to resist the suggestions of fancy. It has often 
 happened that unquiet spirits, placed by the prince at the head 
 of affairs, have imagined that the wants of their own little souls 
 were wants of the state." * 
 
 The author of the Persian Letters has written too many 
 chapters in the Spirit of Laws. What do we learn from this 
 satirical description? If Montesquieu had condescended to 
 give us a simple enumeration of the true wants of the state, we 
 should have known much better what he meant by imaginary 
 wants. 
 
 I proceed to give a catalogue of the cases in which the sacri- 
 fice of some portion of security, so far as property is concerned, 
 is necessary, to preserve the greater mass of it. 
 
 1st. General wants of the state for its defence against exterior 
 enemies. 
 
 2nd. General wants of the state for its defence against violators 
 of the laws, or internal enemies. 
 
 3rd. General wants of the state to furnish means of affording 
 aid in cases of physical calamity. 
 
 4th. Amends levied upon delinquents, either as punishment, 
 or as an indemnity in favour of the parties injured. 
 ' 5th. A tax upon the property of individuals to furnish the 
 ability of applying remedies to the evils above mentioned, by 
 means of courts of justice, institutions of police, and an armed 
 force. 
 
 6th. Limitation of the rights of property, or of the use which 
 each proprietor may make of his own goods, so as to prevent 
 * Spirit of Lcuws, book xiii. c. i. 
 
126 . PEDfCIPIES OF THE CI7IL CODE. 
 
 him from emplojdng them to his own injury or to that of 
 others.* 
 
 In all these cases the necessity is too palpable to need any 
 proofs. But it must be noticed that the same reserves will 
 equally apply to the other branches of security. It is not pos- 
 sible, for example, to maintain the rights of person and of honour, 
 except by penal laws ; and penal laws can hardly be executed, 
 except at the expense of person or of honour. 
 
 CHAPTEE XIV. 
 
 Of some Cases liable to he contested. 
 
 Ought we to reckon among those wants of the state which ought 
 to be proyided for by forced contributions, the care of the in- 
 digent, public worship, and the cultivation of the arts and 
 
 sciences ? 
 
 * We possess a general rigli,t of property over a thing -wlien we can 
 apply it to every use, except certain uses whiph are forbidden for special 
 reasons. These reasons may be referred to three heads : — 
 
 1st. Private detriment, when a given use of a thing would injure some 
 other individual, either in his fortune or otherwise. 
 
 2nd. Public detriment, that which may result to the community in 
 generaJ. 
 
 3rd. Detriment to the individual himself. 
 
 This sword is mine in full property ; but however complete that nght 
 of property may be, as respects a thousand uses, I ought not to employ 
 it to wound my neighbour, nor to cut his dress, nor to hold it up as a 
 signal of insurrection. If I am a minor or a maniac, it may be taken 
 from me, lest I should injure myself. 
 
 An absolute and unlimited right of property over any object, would be 
 the right to commit almost every crime. If I had such a right over a 
 ,stick which I had out, I might employ it as a club to beat t,he passers-by, 
 or convert it into a sceptre as a sign of royalty, or into an idol offensive 
 to the national religion. 
 
PRIIfOIPIBS OP THE CITIL CODE. 137 
 
 Section I. 
 Inddgence. 
 
 In the highest state of social prosperity, the great mass of 
 citizens -will have no resource except their daily industry ; and 
 consequently will be always near indigence, always ready to be 
 thrown into a state of destitution, by accidents, such as revolu- 
 tions of commerce, natural calamities, and especially sickness. 
 Infancy has no means of subsisting by its own strength; the 
 feebleness of old age is equally destitute. These two extremes 
 of life are alike in weakness. If natural instinct, humanity, 
 shame, and the aid of the law, assure to children and old men 
 the care and protection of their relatives, stUl these resources 
 are precarious, and those who give may soon themselves be 
 reduced to want. A numerous family, supported in abundance 
 by the labour of the father and mother, may lose at any instant 
 half its resources by the death of one parent, and the whole by 
 the death of the other. . 
 
 Old age is yet worse provided for. Love which descends has 
 more force than love which ascends. Gratitude is less powerful 
 than instinct. Hope attaches to feeble beings who are beginning 
 life ; it promises nothiag for those who are ending it, But sup- 
 pose — ^what is not uncommon — suppose all possible care for the 
 old ; the idea of changing the part of a giver for that of a receiver 
 win always shed more or less of bitterness into the benefits 
 received, especially at that epoch of decline when the morbid 
 sensibility of the soul renders painful changes indifferent in 
 themselves. 
 
 This aspect of society is the saddest of all. It presents that 
 long catalogue of evils which end in indigence, and consequently 
 in death, under its most terrible forms. This is the centre towards 
 which inertia alone, that force which acts without relaxation, 
 makes the lot of every mortal gravitate. Not to be drawn into 
 the abyss, it is necessary to mount up by a continual effort ; and 
 we see by our side the most diligent and the most virtuous some- 
 
128 PEINCIPLES OP THE CIYTL CODE. 
 
 times slipping by one false step, and sometimes thrown headlong 
 by inevitable reverses. 
 
 There are only two means, independently of the laws, of making 
 head against these evils, viz., savings and voluntary contributions. 
 
 If these two resources would always suffice, we ought, by aU 
 means, to avoid any legal interference for the succour of the poor. 
 A law which offers to indigence an aid independent of industry 
 is, to a certain extent, a law against industry — or at least against 
 fi:ugality. The motives to labour and economy are — present need 
 and the fear of future need. The law which takes away that need 
 and that fear is an encouragement to idleness and dissipation. 
 Such is the reproach which is cast, and not without reason, upon 
 most of the establishments created in favour of the poor. 
 
 But a slight examination will be enough to convince us that the 
 two means of succour, independent of the laws, are not sufficient. 
 
 With respect to sewings — if the greatest efforts of industry will 
 not suffice for the daily support of a numerous class, how can that 
 class lay by for the future ? A second class may pay their daily 
 expenses by their daily labour ; but they will have nothing 
 superfluous to lay aside against the necessities of a distant day. 
 There wiU remain then only a third class, which, by economizing 
 during the age of labour, may, perhaps, be able to provide for 
 the time when they can labour no longer. It is only these last to 
 whom poverty can be ascribed as a sort of crime. " Economy," 
 it will be said, "is a duty. If they have neglected it, so much 
 the worse for them. If misery and death await them, they have 
 nobody to accuse but themselves. Their catastrophe, however, 
 wiU not be an unmixed evil. It will serve as a lesson to pro- 
 digals. It is the execution of a law established by nature — a law 
 which is not, like that of men, subject to uncertainty or injustice. 
 Punishment does not fall save on the guilty, and it is exactly pro- 
 portioned to the fault." 
 
 This severe language might be justifiable if the object of the 
 law were vengeance. But vengeance is condemned by the prin- 
 ciple of utility, as an impure motive founded upon antipathy. 
 What wUl be the fruit of these evils, this abandonment and this 
 
PKINCIPIES OF THE CITIL COBE. 129 
 
 indigence, •which, you regard in your anger as a just punishment 
 of prodigality ? Are you sure that these sacrificed victims will 
 prevent, by theif example, the faults which have led them into 
 misfortune ? To think so would manifest a great ignorance of 
 the human heart. The distress, the death of some prodigals, if 
 we ought so to call those unfortunates who have not known how 
 to deny themselves some of the little pleasures of their condition, 
 who have not known the painful art of striving by reflection 
 against the temptations of every moment — their distress, I say, 
 even their death, will have but little influence, in the way of 
 instruction, upon the laborious classes of society. That sad spec- 
 tacle, the details of which for the most part would be concealed 
 by shame, would not, like the pimishment of malefactors, have a 
 publicity which would attract a general attention, and not sufier 
 its cause to be unknown. "Would those to whom the lesson was 
 most necessary know how to give a fit interpretation to the event? 
 Would they always seize upon the supposed connection between 
 imprudence as the cause, and misfortune as the effect ? Might 
 they not attribute the catastrophe to accidents unforeseen, and 
 impossible to be foreseen ? In place of saying, " Here is a man who 
 has been the author of his own destruction ; his indigence ought 
 to impel me to labour and frugality," — would they not often say, 
 and with apparent reason, " Here is an unfortunate man, who has 
 given himself a deal of trouble to no purpose, and whose case is a 
 striking proof of the vanity of human prudence !" This would 
 be bad reasoning, no doubt; but must an error of logic be 
 punished so rigorously — a mere want of reflection, and that too 
 in a class of men more often called upon to exercise their muscles 
 than their minds ? 
 
 Besides, what shall we think of a punishment delayed in its 
 execution tiU. the very end of life, and which must begin to 
 vanquish, at the other extremity of it — that is, in youth — the 
 influence of the most imperious motives ? How feeble grows this 
 pretended lesson in the distance ! How little resemblance there 
 is between the old man and the young man ! What is the example 
 of the one to the other ? In youth the idea of immediate good 
 
 K 
 
130 PKiirciriEs of the cmt code. 
 
 or evil, occupying all the sphere of reflection, excludes the idea of 
 
 • distant good and evil. . If you wish to act upon the young, place 
 the motive near. Show them, for example, a marriage, or some 
 other pleasure, in perspective. But a pain placed at a distance, 
 beyond their inteUeetual horizon, is quite thrown away. You 
 want to determine men who think very little ; and to draw in- 
 
 , struction from the misfortunes of others, it is necessary to think 
 much. To what purpose employ a political means, designed to 
 operate upon a class having the least foresight, and yet of a 'nature 
 to be efB.cacious only with philosophers ? 
 
 To recapitulate. , The resource of savings is insufficient. 1st, 
 It evidently is so for those who do not gain enough to subsist 
 upon; 2nd, It is equally so for those who gain a mere subsist- 
 ence. As to the third class, which embraces aU not included in 
 the first two, savings are not naturally insufficient, but they 
 become so through the deficiency of human prudence;- 
 
 Let us now pass to the other lesource-^vohntary cmtributions. 
 That, too, has many imperfections. 
 
 1st. Its uncertainty. ■ It wiU experience daily vicissitudes, like 
 the fortune and the JiberaKty of the individuals on whom it 
 depends. Is it insufficient ? Such junctures are marked by misery 
 and death. Is it- superabundant? It wiU ofier a reward to 
 idleness and profusion. 
 
 2nd. The inequality of ^he burden. This supply for the wants 
 of the poor is levied entirely at the expense of the more humane 
 and the more virtuous, often without any proportion to their 
 ' means ; while the avaricious calumniate the poor, to cover their 
 refusal with a varnish of system and of reason. Such an arrange- 
 ment is a favour granted to selfishness, and a punishment to 
 humanity, that first of virtues. i 
 
 • I say a punishment ; for though these contributions are called 
 voluntary, what is the motive whence they emanate ? If it is not 
 a religious or a political fear, it is sympathy, tender but sad, 
 which presides over these generous actions. It is not the hope of 
 a pleasure which is bought at this price ; it is the torment of 
 pity, which is sought to be avoided. Thus it has been noticed in 
 
PEINCIPIES 01' TEE CIVIL CODE. 131 
 
 Scotland/ia country ■where indigence is limited to this sad resource, 
 that paiipers derive their principal support from the class nearest 
 to pauperism. 
 
 3rd. The inconveniences of the, distribution. If these contribu- 
 tions are abandoned to chance, as in the case of alms asked on 
 the highway; if they are left to be paid, as occasion occurs, 
 without any person intermediate between him who gives and 
 him whp asks, the unc^irtainty as to the sufficiency of these gifts 
 is aggravated by another uncertainty. How appreciate in a 
 multitude of cases the degree of want and of need ? May not 
 the poor widow's farthing go to increase the ephemeral treasure 
 of the ipipure woman ? How many generous souls like Sidney 
 will be found, who will repel the vivifying draught from their 
 parched lips, to say, I can yet wait ; first minister to that unfor- 
 tunate, for his distress is greater than mine. Every one knows 
 that in the distribution of these gratuitous gifts, it is not modest 
 virtue, it is not true poverty, often mute and bashful, which 
 obtains; the larger part. There needs as much of management 
 and intrigue to succeed; upon this obscure theatre,; as upon tie 
 brilliant scene of the world. He who knows how to importune^ 
 to flatter, to lie, to mi'v boldness with baseness, and to vary his 
 impostures according to the occasion, will have success such as 
 the virtu,ous poor, devoid of artifice, and preserving their honour- 
 in their poverty, wiU ^ot attain. 
 
 Les vrwis talents se taisent et s'enfld&nf, 
 ■ Secov/ragh des affronts qu'iU essvdent. 
 Les fatix talents sont Jia/rdis, effrontes, 
 Sowples, adroiis, et jamais rehutes. 
 
 Discouraged ty affronts, true talents fly. 
 
 And hide themselves in silence. Hardy and bold. 
 
 Adroit and supple tpo, false talents brave 
 
 "What Voltaire says of talents may be applied to mendicityv 
 In the division of voluntary contributions, the lot of the honest 
 and virtuous poor is seldom eq^ual to that of the impudent and 
 obstreperous beggar. 
 
 K 2 
 
132 PEINCIPIES OE THE CIVIL CODE. 
 
 Suppose that these contributions are put into a common fund 
 to be distributed by persons appointed for that purpose. This 
 method is far preferable, since it admits a regular examination of 
 ■wants and claims, and tends to proportion the aid accordingly ; 
 hut it has also a tendency to diminish liberalities. That gift 
 which is going to pass through the hands of a stranger, of which 
 I shall not foUow the application, of which I shall not have the 
 pleasure nor the immediate merit, has something abstract about 
 it which chills sentiment. That which I give myself, I give at 
 the moment when I am moved, when the cry of the poor is 
 re-echoed in my heart, when there is only I to succour him. 
 What I put into a general contribution may not have a destina- 
 tion agreeable to my desires ; that poor coin which is much for 
 me and my family will be but a drop to that mass of contribu- 
 tions on the one hand, and that multitude of wants on the other ; 
 let the rich sustain the poor ! This is the way that many people 
 reason, and it is on this account that contributions succeed better 
 when taken for a particular class of individuals, than for an 
 indefinite multitude like the entire mass of the poor ; yet it is 
 for that mass that a permanent aid must be provided. 
 
 It seems to me, after these observations, that we may lay it 
 down as a general principle that the legislator ought to establish 
 a regular contribution for the wants of indigence, it being under- 
 stood that those only are to be regarded as indigent who are in 
 want of what is absolutely necessary. From this definition of 
 the indigent, it follows that their title as indigent is stronger than 
 the title of the proprietor of superfluities as proprietor. For the 
 pain of death, which would presently fall upon the starving poor, 
 would be always a more serious evil than the pain of disappoint- 
 ment which falls upon the rich when a portion of his superfluity 
 is taken from him.* 
 
 In the amount of the legal contribution we ought not to go 
 
 * When this tax is put upon a regular footing, and each proprietor 
 "knows beforehand what he must contribute, the pain of disappointment 
 vanishes, and gives place to another, different in its nature, and less in 
 degree. 
 
PEINCIPLBS OP THE CIVIL CODE. 133 
 
 beyond what is simply necessary. To go beyond that wonld be 
 taxing industry for the sujiport of idleness. Those establish- 
 ments which famish more than is absolutely necessary are not 
 good, except so far as they are supported at the expense of indi- 
 viduals, for individuals can make a discrimination in the distri- 
 bution of these aids, and apply them to specific classes. 
 
 The details of the maimer of assessing this contribution, and 
 distributing its produce, belong to political economy, as also the 
 inquiry into' the means of encouraging a spirit of economy and 
 foresight in the lower classes of society. "We have some instruc- 
 tive memoirs upon this interesting subject, but no treatise which 
 embraces the whole question. Such a work should begin with 
 the theory of poverty — that is, by a classification of the indigent, 
 and of the causes which bring on indigence, and thence proceed 
 to suggest precautions and remedies. 
 
 SEOTIOlf II. 
 
 The Expenses of Puhlie Worship, 
 
 If the ministers of religion are considered as charged with 
 maintaining one of the sanctions of morality (the religious 
 sanction), the expense of their support ought to be referred to- ' 
 the same branch of administration with justice and the police, 
 viz., the support of internal security. The clergy are a body of 
 inspectors and moral instructors, who form, so to speak, the , 
 advanced guard of the law. They have no power against ofiences, 
 but they combat the vices from which offences originate, and thus 
 render the exercise of authority more rare by maintaining morals, 
 and subordination. If they were charged with all the functions 
 which might properly be assigned to them in the education of 
 the inferior classes, in the promulgation of the laws, in the per- 
 formance of divers public acts, the utility of their ministry 
 would be more manifest. The more real services they rendered 
 to the state the less would they be subject to those maladies of 
 dogmatism and of controversy which spring from the desire of 
 
134 PEDfCIPLES OP TILB CITIL CODE. 
 
 making themselves distinguished and from the want of power to 
 be useful. It is necessary to direct their activity and their 
 ambition towards salutary objects to prevent them from becoming 
 mischievous. 
 
 In this point of view, even those who do not acknowledge the 
 truth of religion cannot complain at being called upon to 
 contribute towards its support, since they participate in its 
 advantages. 
 
 But if there exists a great diversity of worship and religion, 
 and the legislator is not fettered by an anterior establishment or 
 particular considerations, it wiU be more conformable to liberty 
 and equality to apply the contributions of each religious com- 
 munity to the support of their own church. It is true that in 
 this arrangement we have cause to fear a spirit of proselytism on 
 the part of the clergy; but it is equally probable that a useful 
 emulation will result from their reciprocal efforts, and that the 
 balance of their influence will establish a kind of equilibrium in 
 that fluid of opinions subject to such dangerous tempests. 
 
 We can imagine a very unfortunate case, that of a people to 
 whom the legislator forbids the public exercise of their religion, 
 and at the same time imposes upon them the obligation of sup- 
 porting a religion which they regard as hostile to their own. 
 This would be a double violation of security. There would 
 gradually be formed among this people an habitual sentiment of 
 hatred against the government, a desire of change, a ferocious 
 courage, a profound secrecy. The people, deprived of all the 
 advantages of a public religion, of known guides and of avowed 
 priests, would be delivered up to ignorant and fanatical leaders, 
 and as the maintenance of their worship would be a school of 
 conspiracy, the faith of oaths, instead of being the safeguard of 
 the state, would become its terror ; instead of binding the citizens 
 to the government, it would unite them against it, so much so 
 that such a people would become as formidable through their 
 virtues as their vices. This is not an imaginary case, as the 
 history of Ireland will show. 
 
PEIKCIPLES OF THE CIVIL CODE. 135 
 
 , Section III. 
 The CwUiBation ofthe Arts and Seiences. 
 
 I shall not speak here of what ought to be done for what are 
 called the useful arts and sciences ; nohody doubts that objects of 
 public utility ought to be sustained and eicoiuraged by public' 
 contributions. 
 
 But when the question relates to the cultivation of the fine arts, 
 the embeUishment of • a country, edifices of luxuiy, dbjects of 
 ornament and pleasure — in one word, to works of superfiuity — 
 ought we to raise forced contributions for their support ? Can 
 taxes be justified for this brilliant, but superfluous end ? 
 
 I do not desire to undertake here the support of the agreeable 
 against the useful ; * nor to argue that the people should be dis- 
 tressed in order to give fetes to a court, or pensions to buffoons. 
 JBut one or two reflections may be offered by way of apology; 
 
 1st. The expense which is, or can be, incurred for these objects 
 is commonly a trifling affair coinjiared to the mass of necessary 
 contributions. Let any one undertake to restore to eaCh his 
 quota of this superfluous expense, and would it not be almost 
 impalpable? 
 
 3nd. This superfluous part of the contributions being con- 
 founded with the mass of those vrhich are necessary, the levy is 
 imperceptible; it excites' no separate 'sensation which can give 
 room to a distinct complaint; and the evH of the first order, 
 limited to a sum so moderate, is not- suficient to produce an evil 
 of the second order. 
 
 3rd. This luxury of taste may have a palpable utility by 
 bringing together a concourse of strangers who spend their 
 
 * Not that there is any real opposition between them; everything 
 that gives pleasure is useful j but in common language, that is exclur 
 sively called useful which produces a permanent utility, j while the word 
 agreeable is limited to an immediate utility, or a present pleasure. Many 
 things, in fact, which we refuse to call usejul, have a much more certain 
 utility than, some others, to which that epithet is Usually applied. 
 
136 PEINCIPLES OP IHE Cim CODK. 
 
 money in the country. Little by little all nations become tribu- 
 tary to lier who holds the sceptre of the fashions. A country 
 fertUe in amusements may be looked upon as a great theatre, 
 which is in part supported at the expense of a crowd of curious 
 spectators drawn to it from all parts. 
 
 It may happen, too, that this pre-eminence in objects of amuse 
 ment, literature, and taste, tends to gain for a people the good 
 wiU of other nations. Athens, which was called the eye , of 
 Gfreece, was saved more than once by the sentiment of respect 
 which superiority of civilization inspired. The halo of glory 
 which encircled that home of the arts served a long time to hide 
 its weakness; and everything which was not barbarian was in- 
 terested in the preservation of a city, the centre of politeness and 
 of intellectual pleasures. 
 
 But, after all, it must be admitted that this seducing object 
 may be abandoned without risk to the sole resource of voluntary 
 contributions. At least, everything essential ought to be pro- 
 vided for before giving one's self up to expenses of pure orna- 
 ment. It will be time to provide for actors, painters, and 
 architects after the public faith is satisfied; when individuals 
 have been indemnified for the losses occasioned by war, crimes, 
 and physical calamities ; when the support of the indigent is pro- 
 vided for ; tiU then, aU such expense would be an imjust pre- 
 ference granted to brilliant accessaries over objects of necessity. 
 
 Such expenses, under such circumstances, are very contrary to 
 the interest of a sovereign, because the reproaches they occasion 
 will always be much exaggerated ; for it needs no sagacity to 
 invent them, but only passion and humour to set them distinctly 
 forth. It is weU. known what efficacy they have had when 
 wrought into pieces of popular eloquence, and employed to stir 
 up the people against regal government. Though it be true that 
 everything conspires to throw kings into this Ulusion,— so far as 
 regards the luxury of amusements, have they ever fallen into 
 excesses so great as those of many republics ? Athens, at an 
 epoch of most" pressing dangers, despised alike the eloquence of 
 Demosthenes and the threats of Philip, engrossed with a need 
 
PEINCIPIXS OF THE CIVII CODE. 137 
 
 more urgent than defence, an object more essential than the 
 maintenance of liberty. The gravest of crimes was the diversion, 
 even for wants of" the state, of the funds destined to the support 
 of the theatres. And at Eome, was not the passion for spectacles 
 carried to an equal extreme ? It was necessary to lavish the 
 treasures of the world, and the spoils of nations, to captivate the 
 suffrages of the sovereign people. Terror spread through a 
 whole country, whenever a pro-consul was about to give a 
 spectacle at Eome ; an hour of the magnificences of the circus 
 cast into despair a hundred thousand inhabitants of the pro- 
 vinces. 
 
 CHAPTEE XV. 
 
 ^Examples of Attach upon Seeurity. 
 
 It mil be usefbl to give some examples of what I mean by 
 attach lipon security. It will be a means of putting principles 
 in a clearer Hght, and of showing that what is unjust in morals 
 cannot be innocent in politics. Nothing is more common than to 
 authorize under one name what would be odious under another. 
 
 And here I cannot help observing the bad effects of one branch 
 of classical education. "We are accustomed from our earliest 
 youth to see in the history of the Eoman people public acts of 
 injustice, atrocious in themselves, always coloured with specious 
 names, always accompanied by a proud eulogy on Eoman virtues. 
 The abolition of debts plays a great part from the earliest times 
 of the republic. A withdrawal of the people to Mount Aventine, 
 when the enemy was at the gates of Eome, forced the Senate to 
 pass a ?ponge over the rights of creditors. The historian excites 
 all our interest in favour of the fraudulent debtors who paid their 
 debts by a bankruptcy, and does not fail to render odious those 
 who were despoiled by an act of violence. And what was 
 gained by that injustice ? "Csury, which had served as a pretext 
 for the robbery, coiild not but be augmented the very next day 
 after the catastrophe ; for the exorbitant rate of interest was only 
 
138 PRINCIPLES OF THE CITIL CODE. 
 
 tHe price of the risk caused by the uncertainty of engagements. 
 The foundation of the Roman colonies has been celebrated as a 
 ■work of profoimd policy. It always consisted in despoiling a 
 part of the lawful proprietors of a conquered country to create 
 establishments in the way of favour or reward. 
 
 This proceeding, so cruel in its immediate effects, was yet more 
 fatal in its consequences. The Romans, accustomed to violate all 
 the rights of property, knew not where to check themselves in 
 this career. Thence the perpetual demand for a new division of 
 lands, which was ever the fire-brand of the seditious, and which 
 contributed under the triumvirate to a frightful system of general 
 confiscations. 
 
 The history of the republics of Greece is full of facts of" the 
 same kind, always presented in a manner plausible enough to lead 
 astray superficial inquirers. What abuse of reasoning has there 
 been upon that division of lands brought about by Lycurgus, to 
 serve as a basis for his community of warriors ; in which, by an 
 inequality the most shocking, all the rights are on one side, and 
 aU the servitude on the other ! 
 
 These attach upon security, which have found so many officious 
 defenders when the question has been of the Greeks and the 
 Romans, have not experienced the same indulgence when the 
 monarchs of the East have been the actors. The despotism of an 
 individual has nothing seducing in it ; because it confines itself 
 too evidently to his person alone; there are -a nuUioU. chances of 
 suffering from it, to one of enjo3fing. But the despotism exercised 
 by a multitude deceives weak minds by a false image of the 
 public good. "We place ourselves in imagination among the great 
 number that commands, instead of supposing ourselves among 
 the small number that yields and suffers. Let us, then, leave in 
 peace the sultans and the viziers. "We may be sure their injustice 
 wiU not be glossed over by the flatteries of historians. Their 
 reputation serves as an antidote to their example. 
 
 "We may dispense, for the same reason, with insisting upon such 
 attacks upon security as national bankruptcies ; but we may 
 remark, in passing, a curious effect of fidelity to engagements 
 
PEINCIPLES OP THE CIVIL CODE, 139 
 
 upon the authority of the government itself. In England, sinise 
 the Eevolution, the engagemeiits of the state have always been 
 sacred ; so that individuals who lend' to the government never 
 demand any oth^r pledge than the national credit ; and the col- 
 lection of the imposts assigned to pay the interest of the'debt has 
 always remained in the harids of the Mng. In 'France, imder 
 the monarchy, violations of the" publib' faith were so frequent, 
 that those who made advances to the government were in the 
 habit, from an early period, of requiring the collection bf the im- 
 posts to be intrusted to them, and of jpaying themselves with 
 their own hands. But this irrangfement ' cost the people dear ; 
 for the public creditor had no' interest to conkult their conve- 
 nience ; and it cost the prince yet dearer, since it deprived him 
 of the affections of the people. Whfen, in 1787, the announce- 
 ment of a deficient revenue alarmed all the creditors of the state, 
 that class so interested in England, in the maintenance of govern- 
 ment, showed itself in France, ardent for a revolution. All 
 thought they saw their own security in takipg away from the 
 sovereign the administration of the finances, and placing them in 
 the hands of a national council. It is well known how fax the 
 event answered to their hopes. But it is not the less interesting 
 to observe that the fall of that nionarchy, which appeared so im- 
 moveable, was owing, in no small measure, to the distrust which 
 so many violations of the public faith had caused. 
 
 But among the many attacks upon s«CMni5y committed through 
 ignorance, inadvertence, or false reasons, it will suffice to note 
 some individual cases. 
 
 1st. "We may regard as such, tdxeh unequally levied, — ^tho'se 
 disproportxoned imposts which spare the rich at the expense of 
 the poor. The weight of this evil is aggravated by the sentiment 
 of injustice at the idea of paying more than one's fair proportion. 
 
 Corvees are the height of inequality ; since they fall entirely 
 upon those who have only their hands for their patrimony. 
 
 So are imposts, levied upon an uncertain fund j upon persons 
 who may have nothing to pay with. In that case, the evil takes 
 another turn. Indigence may protect us from paying the tax. 
 
140 PMNCIPIES OP THE CIVIL CODE. 
 
 but it subjects us at the same time to the gravest evils. The 
 sufferings of ■want take the place of the inconveniences of the 
 impost. This is the reason why a poll-tax is so unjust. It is 
 possible to have a head, and to have nothing else. 
 
 Imposts which fetter industry, such as monopolies, and exclu- 
 sive companies. The true method of estimating these imposts is, 
 not to consider what income they pay, but what they prevent from 
 being paid. 
 
 Imposts upon necessaries. "What physical privations, what 
 maladies, what deaths they produce, no man can teU ! These 
 sufferings, caused by the fault of the government, are confounded 
 with natural evils which it cannot prevent. 
 
 Imposts upon private sales. Generally speaking, it is necessity 
 which causes these sales ; and the tax-gatherer, coming in at an 
 epoch of distress, levies an extraordinary tribute upon an unfor- 
 tunate individual. 
 
 Imposts upon public sales, or sales at auction. Here the dis- 
 tress is fuUy proved; often it is extreme, and the fiscal injustice 
 is most manifest. 
 
 Taxes upon law proceedings. They include all kinds of 
 attacks upon security, since they are equivalent to refusing the 
 protection of the law to aU those who cannot pay for it. They 
 consequently offer a hope of impunity to crime. It is only neces- 
 sary to choose as objects of injustice individuals who cannot 
 afford the advances necessary to a judicial prosecution, or who 
 are not rich enough to run the risk. 
 
 2nd. A forced Elevation of the Value of Money. — This is a bank- 
 ruptcy, since the government does not pay all that it owes ; a 
 fraudulent bankruptcy, since there is a semblance of paying ; and 
 a foolish fraud, which deceives nobody. As far as it goes, it is 
 equivalent to an abolition of debts. The theft which the govern- 
 ment commits upon its own creditors, it authorizes every debtor 
 to commit upon his, though without any profit from it to the 
 public treasury. And when this course of injustice is completed ; 
 after this operation has enfeebled confidence, ruined honest men, 
 enriched rogues, deranged commerce, disordered taxation, and 
 
PEINCIPLES OF THE CITIL CODE. 141 
 
 caused a thousand individual evils, it does not leave the least 
 advantage to the government which it has dishonoured. Expense 
 and income presently return to the same proportions as before. 
 
 3rd. Forced Reduction of the Bate of Interest. — Eegarded as a 
 question of political economy, reducing the rate of interest by 
 law is injurious to wealth, because it is prohibiting the payment 
 of any premium for the introduction of foreign capital ; it is pro- 
 hibiting, in many cases, new branches of commerce, and even 
 old ones, if the legal interest is not sufficient to balance the risks 
 of the capital employed. But with a more immediate view to 
 security, it is taMng away from lenders to give to borrowers. 
 Let the rate of interest be reduced by law a fifth part below its 
 natural level, and the event is the same to the lenders as if they 
 were plundered every year by robbers of the fifth part of their 
 fortunes. 
 
 If the legislator finds it good to take away from a particular 
 class of citizens a fifth part of their revenue, why stop there ? 
 Why not take away another fifth part, and stiU another ? If the 
 first reduction answered its end, a further reduction wiU answer 
 it in the same proportion ; and if the measure is good in one case, 
 why should it, be bad in the other? "Wherever we stop, it is 
 necessary to have a reason for stopping ; but whatever reason 
 prevents the second step wiU be just as good to prevent the first. 
 This operation is exactly the same as diminishing rents under the 
 pretext that the proprietors are useless consuniers, and the farmers 
 productive labourers. If you shaJie the principle of security as 
 respects one class of citizens, you shake it for all. The bundle of 
 rods is its emblem. 
 
 4th. General Confiscations. — I refer to this head vexations exer- 
 cised upon a sect, upon a party, upon a class of men, under the 
 vague pretext of some political crime — a pretext so vague that, 
 while it is pretended that the confiscation is a punishment, there 
 is often room to believe that the crime has been created for the 
 sake of the confiscation. History presents many examples of such 
 robbery. The Jews have often been its object ; they were too 
 rich not to be always guilty. Financiers and farmers of the public 
 
142 PEINCIPLES OV THE CIVIL CODE. 
 
 revenue, for tteisame reason, have been often subjected to what 
 ■were called chambers of fire {fiharribres arientes)^ While the order 
 of succession remained unfixed, everybody at the sovereign's 
 death might, become guilty;, and the. spoils of the vanquished 
 formed, in the hapd^ip;? the successor, a treasure of rewards. In 
 a republic torn by factions, each half of the nation denounces the 
 other as traitors; and let. the system of confiscations be once intro- 
 duced, and parties, as at Borne, become in turn the devourers of 
 each other. 
 
 The crimes of the powerful, and especially the crimes of the 
 popular party in democracies, have always found apologists. 
 "The greaterpartof these great fortunes," it is said, "have been 
 founded upon injustice ; and what has. been plundered from the 
 public may as well be restored to the public." To reason in this 
 way is to open an unlimited career to tyranny. It is a permission 
 to presume, crime instead of proving it. According to this logic, 
 it is impossible for a rich man to be innocent. Ought a punish- 
 ment so severe as confiscation to be. inflicted in gross, without 
 examination, without detail, without proof? Does a procedure 
 which would be declared atrocious if employed against- an 
 individual, become lawful when directed against. a whole class of 
 citizens ? Can we. m^ke ourselves deaf to the evil we are doing 
 because, of the number of .the sufferers whose cries are mingled 
 together in this common shipwreck ? To plunder great proprietors, 
 under the pretext that, some of their ancestors have acquired their 
 opulence by unjust means,'is like bombarding a city because some 
 robbers are thought to be concealed in it. 
 
 5th. Dissolution of Convents and of Monastic Orders. — The decree 
 for their abolition was signed by reason itself ; but its execution 
 should not have been abandoned to prejudice and to avarice. It 
 woilld have been enough to iave forbidden these societies to admit 
 new members. In that case they would have died away gra- 
 dually. Individuals would have suffered no privation. The 
 revenues as they fell in might have been appropriated to some 
 useful object ; and philosophy would have applauded an operation 
 excellent in principle and mild in its execution. But this slow 
 
PEINCIPLES OF THE CIVIt. CODE. 143 
 
 process is not that ■which, cupidity loves. It would seem as if 
 sovereigns, in dissolving these societies, had wished to punish the 
 memhers for some wrong they had done. In place of regarding 
 them as orphans and invalids, deserving all the compassion of the 
 , legislator, they were looked upon as enemies, who were treated 
 with clemency even ■when they were stripped of aU their wealth 
 and reduced to ahsolute want. 
 
 6th. Suppression of Pensions and Places without Iniemnity to the 
 Possessors. — This attack upon security merits the rather a parti- 
 cular mention, because, instead of being blamed as an injustice, it 
 is often approved as an act of economy and reform. Envy is never 
 so much at its ease as when it can conceal itself under the mask 
 of patriotism and the public good. But the public good requires 
 only the abolition of sinecures; it does not demand the ruin of 
 the persons who hold them. 
 
 The principle of security requires that reform should he 
 attended' ■with complete indemnity. The only benefit that can be 
 lawfully drawn from it is the conversion of a perpetual into a life 
 annuity. 
 
 Is it said that the immediate suppression of these places wiU be 
 a gain to the public ? This argument is sophistical. The sum in 
 question would doubtless be again, considered in. itself, if it came 
 from abroad, or if it were acquired by commerce ; but it is not a 
 gain when taken from the hands of certain ihdi^nduals, who are 
 theinselves a part of the public. Would a family be the richer 
 because the father had taken everything from one of his children, 
 the better to endow the others ? Even in such a case, the spoUa 
 of one child would increase the inheritance of his brothers, and 
 the evil would not be a total loss ; it would produce a portion of 
 good. . . !But when the question is of the public, the profit of a 
 place suppressed isi divided among the whole community, while 
 the loss falls entirely upon one. The gain, spread among the 
 multitude, is divided into impalpable parts ; the loss is whoUy 
 felt by him who alone supports it. The result of the operation is 
 this — ^it does not enrich the party that gains, and it reduces him 
 who loses to poverty. Instead of one place suppressed, suppose 
 
144 PKINCIPLBS OP THE CITIL CODE. 
 
 a thousand, ten thousand, a hundred thousand. The total disad- 
 vantage win remain the same. The plunder taken from thousands 
 of individuals must he divided among millions. Tour streets wiU 
 everywhere present imfortuaate citizens whom you wiU have 
 plunged into indigence ; and you will hardly see an individual 
 who wiU be sensibly the richer by virtue of these cruel operations. 
 Groans of pain and cries of despair will resound on every side. 
 The cries of joy, if there are any, will not be expressions of hap- 
 piness, but of that antipathy which rejoices in the misery of its 
 victims. Ministers of kings and of the people, it is not by the 
 wretchedness of individuals that you wUl produce the happiness 
 of nations ! The altar of the public good demands barbarous 
 sacrifices as little as the altar of the Divinity. 
 
 I cannot yet quit the subject ; for the establishment of the 
 principle of security demands that error should be pursued into 
 all its retreats. 
 
 What means do men take to deceive themselves or to deceive 
 the people on the subject of such,great injustice ? They have 
 recourse to certain pompous maxims which are a mixture of 
 truth and falsehood, and which give to a question, simple in 
 itself, an air of depth and political mystery. The interest of 
 individuals, it is said, ought to 3rield to the public interest. But 
 what does that mean ? Is not one individual as much a part of 
 the public as another ? • This public interest, which you intro- 
 duce as a person, is only an abstract term ; it represents nothing 
 but the mass of individual interests. It is necessary to take 
 them all into account, instead of considering some as all, and 
 the others as nothing. If it is a good thing to sacrifice the 
 fortune of one individual to augment that of others, it will be 
 yet better to sacrifice a second, a third, a hundred, a thousand, 
 an unlimited number ; for whatever may be the number of those 
 you have sacrificed, you will always have the same reason to add 
 'one more. In one word, the interest of everybody is sacred, or 
 the interest of nobody. 
 
 Individual interests are the only real interests. Take care of 
 the individuals; never molest them, never suffer any one to 
 
PRINCIPLES OE THE CITIL CODE. 145 
 
 molest ttem, and you will have done enough for the public. 
 Would it be believed that there are men so absurd as to love pos- 
 terity better than the present generation ; to prefer the man who 
 is not to the man who is ; to torment the Uving under pretext of 
 doing good to those who are not bom, and who perhaps never 
 wUlbe? 
 
 Upon a multitude of occasions, men who have suffered by the 
 operation of a law have not dared to complain, or have not been 
 listened to, by reason of this false and obscure notion, that private 
 interest ought to yield to public interest. But if it comes to a 
 question of generosity, who is loudest called upon to exercise 
 it, — the whole towards one, or one towards the whole ? An evil 
 felt, and a benefit not felt; such is the result of these admirable 
 operations by which individuals are sacrificed to the public !, 
 
 I shall conclude by a general observation of great importance 
 The more the principle of property is respected the stronger hold 
 it takes on the popular mind. Slight attacks upon this principle 
 prepare the way for heavier ones. A long time has been neces- 
 sary to carry property to the point where we now see it in 
 civilized societies ; but a fatal experience has shown with what 
 facility it can be shaken, and how easily the savage instinct of 
 plunder gets the better of the laws. Governments and the 
 people are, in this respect, Hke tamed lions ; let them but taste a 
 drop of blood, and their native ferocity. revives. 
 
 Si torrida parvus 
 Vemt m ora cruor, rejAmit rdbiesque fwrorque ; 
 Admonitceque twment guttata sangume fa/uces, 
 Fervet, et a trepido vix aibstinet ora ma^istro. 
 
 LucAN, iv. 
 
 If but a little blood 
 Touch his hot mouth, fury and rage return ; 
 His counselled jaws swell with the tasted gore ; 
 He raves j and from his trembling keeper scareo 
 Bestrains his teeth. 
 
146 PKHTCrPIES OF THE CITTD CODE. 
 
 CHAPTEE XVI. 
 
 Forced Exchanges. 
 
 " A-STiAGES, in Xenophon's Cyrop(Bdia, asks Cyrus to give an 
 account of Ms last lesson. Cyrus answers thus : ' One of the 
 boys in our school Tvho had a coat too small for him gave it to 
 one of his companions a little smaller than himself, and took 
 away his coat, -which was too large. The preceptor made me the 
 judge of this dispute, and I decided that the matter should be 
 left as it was, siuce both parties seemed to be better accom- 
 modated than before. Upon which the preceptor pointed out to 
 me that I had done wrong, for I had been satisfied with cour 
 sidering the convenience of the thing, whereas I ought first to 
 have looked at the justice of it ; and justice never would allow 
 violence to be done to anyone's property.' " — Montaigne^ s Essays, 
 book i. ch. xxiv. 
 
 "What ought we to think of this decision ? At the first view it 
 would appear that a forced exchange is not contrary to security, 
 provided an equal value is given. How can I be said to lose 
 in consequence of a law, if, after it has had its full effect, the 
 amount of my property remains the same as before ? If one has 
 gained, and the other has not lost, the operation seems to be 
 a good one. 
 
 !No ; it is not. He whom you suppose to have lost nothing by 
 a forced exchange, in reality has lost; since everything moveable 
 •or immoveable has different values for different persons, accord- 
 ing to circumstances, and every one expects to enjoy the favour- 
 able circumstances which may augment the value of such or such 
 a part of his property. If the house that Peter occupies would 
 be more valuable to Paul, that is no reason why Paul, should be 
 gratified by forcing Peter to yield the house to him for the sum 
 which it is worth to himself. That would be to deprive Peter of 
 the benefit which he has a right to derive from the very circum- 
 stance that the house is worth more to Paul. 
 
 And suppose Paul should say that for the sake of peace he 
 
PniNCIPIES OF IHE CIVIL CODE. ']'47 
 
 had offered a price above tlie ordinary value, and that Peter 
 refuses it out of pure obstinacy, still it might be replied to him, 
 ' ' This surplus of price which you pretend to have pffered is only a 
 supposition of yours." The opposite supposition is just as pro- 
 bable. Eor if you had really offered more than the house is 
 W(!)rth, he ■would have hastened to seize so favourable a circum- 
 stance, vfhich might not occur again, and the bargain -would have 
 been soon concluded. If he did not accept yoiii' offer it is a 
 -proof that you were deceived in your estimate, and that if the 
 hpuse were taken from him on the conditions you propose, it 
 would be an injury to his fortune, if not to what he possesses, 
 ■at least to what he has a right to acquire. ' ' 
 
 Ko, Paul ■will reply; he knows that my estimate is higher 
 than anything he can expect in the ordinary course of things ; 
 but he also knows my necessity, and he refuses a reasonable 
 offer in hopes to derive an unfair advantage from my situation. 
 
 I perceive a principles which m^y serve to settle this difference 
 between Paut stnd Peter, Things must be distinguished into 
 two classes, those which ordinarily have only their intrinsic value, 
 and 'those which are susceptible of a value of affection. Houses 
 of the common sort, field's cultivated in the usual -way, a crop of 
 hay or corn, and ordinary kinds Of mantifaotures, seem, to bfeloflg 
 to the first class. To the second may be referred pleasure- 
 grounds and gardens, libraries, pictures, statues, collections of 
 natural history. A forced exchange of such objects should never 
 be permitted. The value they derive from a sentiment of affec- 
 tion cannot be appreciated. But objects of the first class may be 
 submitted to forced exchanges whenever it is the Only means to 
 prevent great losses. I' possess a piece of land from which I 
 derive a considerable revenue, but ■*hich I can approach only by 
 a road running along the edge' of a river. The river overflows 
 and washes away the road. My neighbour obstinately refuses 
 me a passage along a strip of land which is not worth the 
 hundredth part of my field. Ought I to lose my all through the 
 caprice or hostility of an unreasonable neighbour ? 
 But to prevent the abuse of a principle so delicate, rigorous 
 
 L 2 
 
148 PEINCrPlES OF THE CIVIL CODE. 
 
 rules ought to be laid down. I say, then, that forced exchanges 
 ought to be permitted to prevent a great loss, as in the case of a 
 field rendered inaccessible except by a passage through another. 
 
 By observing all the scruples of the English legislators in this 
 behalf, we may perceive the respect which is paid ia that country 
 to the rights of property. If anew road is to be opened, an Act 
 of Parliament must be first obtained. AH interested are heard, 
 and the legislature, not content with assigning an equitable satis- 
 faction to the proprietors, protects houses, gardens, and such other 
 objects as may have a value of affection, by special exceptions in 
 the Act. 
 
 Porced exchanges may also be justified whenever the obstinacy 
 of an individual or of a small number are clearly hostile to the 
 advantage of a great number. So in the matter of the English 
 Inclosure Acts, the opposition of a few has not been suffered to 
 prevail, and the sale of houses is often compelled by the law 
 where the convenience or the health of cities requires it. 
 
 The question is of forced exelianges, not of forced transfers, 
 for a transfer is not an exchange ; and a forced transfer without 
 equivalent, even for the benefit of the state, would be a mere 
 injustice, an act of power devoid of that tenderness w:hich the 
 principle of utility ever demands. 
 
 CHAPTER XVII. 
 
 Power of the Laws over Expectation. 
 
 The legislator is not master of the dispositions of the human 
 heart, he is only their interpreter and their minister. The good- 
 ness of the laws depends upon their conformity to general ex- 
 pectation. The legislator ought to be well acquainted with the 
 progress of this expectation, in order to act in concert with it. 
 This should be the end ; let us inquire into the conditions neces- 
 sary to attain it. 
 
 1st. The first of these conditions, but at the same time the most 
 difficult to fulfill, is this, that the laws should he anterior to expecta- 
 
PBINCrPLES OF THE CITH COBB. 149 
 
 tion. If we could suppose a new people, a geueration of children, 
 the legislator finding no expectations already formed in contra- 
 diction to his views, might fashion them at his pleasure, as the 
 statuary does a block of marble. But as there exists already 
 among aU people a multitude of expectations founded upon 
 ancient laws or ancient usages, the legislator is forced to follow 
 a system of conciliation and of humouring which constantly 
 fetters him. 
 
 The very first laws found some expectations already formed. 
 For we have seen that prior to laws there existed a feeble kind 
 of property — that is, a sort of expectation of preserving what had 
 been acquired. The laws received their first determination from 
 these anterior expectations, they have produced new ones, and 
 have gradually formed the channel of our desires and hopes. No 
 changes can be made in the laws of property without deranging, 
 more or less, this established current, and without opposing more 
 or less resistance to it. 
 
 Do you find it necessary to establish, a law contrary to the 
 actual expectations of men ? If it is possible, you should so 
 arrange matters that this law wiU not begin to take effect except 
 at a remote period. The present generation wiU not feel the 
 change, and the rising generation wiU be prepared for it. You 
 wiU find among the young auxiliaries against old opinions, you 
 will not wound actual interests, because time will be allowed to 
 prepare for a new order of ^things. Everything wiU become easy 
 to you, because you will have prevented the birth of those 
 expectations which otherwise you would have been compelled to 
 contradict. 
 
 2nd. The second condition is, that the laws sJtouldhe known. A 
 law which is unknown can have no effect upon expectation, it 
 will not even serve to prevent a contrary expectation. 
 
 This condition, it will be said, does not depend upon the 
 nature of the law, but on the measures which are taken to make 
 it public. These measures may be sufficient for their object, 
 whether the law be so or not. 
 
 This reasoning is more specious than true. There are some 
 
150 PEINCrPLES OF THE CIVIL CODE. 
 
 laws so made as to te more easily known than others. These are 
 laws conformable to expectations already formed, laws which 
 rest upon natural expectations. This natural expectation, that is, 
 this expectation produced by previous habits, may be founded 
 upon a superstition, upon a hurtful prejudice, or upon a percep- 
 tion of Utility, it mates no difference which, the law which is 
 conformed to it is easily borne in mind ; in fact, it was in the 
 mind before it received the sanction of the legislator. Biit a law 
 contrary to this natural expectation is difficult to be imderstood, 
 and still more difficult to be remembered. Another arrangement 
 always suggests itself, while the law, strange to all, and without 
 any root in the mind, tepds constantly to slip from a place to 
 which it has only an artificial adhesion. 
 
 Codes of ritual law have this inconvenience among others, 
 that the fantastic and arbitrary rules of which they are com- 
 posed, never well known, fatigue the understanding and the 
 memory ; so that man, always fearful, always in fault,: always 
 defiled by some imaginary sin, can never count upon innocence, 
 and Hves in perpetual need of absolution. 
 , Expectation naturally directs itself towards the laws which are 
 most important to society: , The stranger who commits a theft, a 
 forgery, an assassination, should notbe suffered to plead ignorance 
 of the laws of the country, since he could not be ignorant that 
 acts so manifestly hurtfiil were crimes everywhere. 
 
 3rd. The third condition is, that the laws should le consistent. 
 This principle is closely connected with the preceding, but it 
 serves to place a great truth in a new light. "When the laws 
 have estabKshed a certain arrangement upon a principle generally 
 admitted, every additional arrangement which is consistent with 
 that priiiciple will prove to be conformable to the general expec- 
 tation. Every analogous law is presumed, as it were, beforehand. 
 Each new application of the principle contributes to strengthen it. 
 But a law which has not this character remains isolated in the 
 mind ; and the influence of the principle to which it is opposed 
 is a force which tends, without ceasing, to drive it from the 
 memory. 
 
PKINCIPLES OF THE CIVIL CODE. 151 
 
 That upon a mau's death his property should go to the next of 
 kin, is a rule generally admitted, and . according to which expec- 
 tations are naturally formed. A law directing the order of suc- 
 cession, which should conform to this principle, would obtain a 
 general approbation, and would be universally understood. But 
 the more this principle is obscured, by admitting exceptions, the 
 more difficult it is- to understand the law and to remember it. 
 The English Common Lww affords us a striking example. It is so 
 complicated in its provisions regulating the descent of property, 
 it admits distinctions so singular, the decisions which serve to 
 regulate it are so subtle, that not only is it impossible for simple 
 good sense to presume its regulations beforehand, .but it is very 
 difficult to discover them at all. It is a profound study, like that 
 of the most abstract sciences, confined to a small number of pri- 
 vileged men. It has been even necessary to sub-divide it, for no 
 lawyer pretends to understand the whole of it. Such has been the 
 fririt of too superstitious a respect for antiquity ! 
 
 When new laws are made in opposition to a principle estabr 
 lished by the old ones, the stronger that^ principle isj the more 
 odious wiU the • inconsistency appear. A contradiction of senti? 
 ment results from it, and disappointed expectations accuse the 
 legidator of tyranny. 
 
 ■ In Turkey,, when an officer of the government dies, the Sjultaa 
 takes possession of his entire fortune, and his children fall at once 
 from the height of- opulence to the depths of poverty.- This law, 
 which overturns all natural expectations, was perhaps, borrowed 
 from some other oriental government, in which it was less incon- 
 sistent and less odious, because the sovereign entrusted employments 
 only to eunuchs.! . 
 
 , 4th. The fourth condition is, that the laws should he consistent 
 with the principle of utility ; for utility is a point towards which 
 aU expectations have a natural tendency. 
 , It is true that a law conformable to utility may happen to be 
 contrary to public opinion ; but this is only an accidental and 
 transitory circumstance. AU minds wiU be reconciled to the law 
 so soon as its utility is made obvious. As soon as the veil which 
 
152 PEUfCIPLES OF THE CIVIL CODE. 
 
 conceals it is raised, expectation will be satisfied, and the public 
 opinion be gained over. Now, it is plain that the more the laws 
 are conformed to utility, the more manifest it is possible for their 
 utility to become. If we ascribe to a thing a quality which it 
 does not possess, the triumph of error can exist but for a time — a 
 single ray of light wUl suffice to dissipate it. But a quality 
 which actually exists, although not known, may chance to be dis- 
 covered at any instant. At the first moment, an innovation is 
 surroimdedby an impure atmosphere ; a mass of clouds formed by 
 caprices and prejudices float about it ; and the appearance of things 
 is changed by the refractions it imdergoes in the passage through 
 so deceitful a medium. It needs time for the sight to grow strong, 
 and to acquire the power of separating from the object all that is 
 foreign to it. But, Httle by little, truth gains the ascendant. If 
 the first attempt does not succeed, the second wiU be more fortu- 
 nate, because it will be better known where lies the difficulty 
 Avhich it is necessary to conquer. The plan which favours the 
 most interests cannot fail in the end to gain the most sufirages ; 
 and the useful novelty, which at first was repulsed with afiright, 
 becomes presently so familiar that no one recollects its commence- 
 ment. 
 
 5th. The fifth condition is method in the laws. The bad arrange- 
 ment of a code of laws may produce, by its efiect upon expecta- 
 tion, the same inconveniences with incoherence and inconsistency. 
 There may result from it the same difficulty of understanding ' 
 the law, and of remembering it. Every man has his limited 
 measure of imderstanding. The more complex the law is, the 
 more it is above the faculties of a great number. In the same 
 proportion it is less known ; it has less hold upon men ; it does 
 not present itself to their minds upon the necessary occasions; or, 
 what is yet worse, it deceives them, and produces false expecta- 
 tions. Both the style and the method should be simple ; the law 
 ought to be a manual of instruction for each individual; and 
 every one should be enabled to consult it in doubtful cases,, 
 without the aid of an interpreter. 
 
 The mjDre the laws conform to the principle of utility the 
 
PEUfCIPLES or THE CIVIL CODE. 153 
 
 simpler they will become ; for a system founded upon a single 
 principle may be as simple in form as ia substance. It is only 
 such, a system which is susceptible of a natural method, and a 
 familiar nomenclature. 
 
 6th. To become the controller of expectation, the law ought to 
 present itself to the mind as certain to he executed; at least, no 
 reason for presuming the contrary ought to appear. 
 
 Is there ground for supposing that the law will not be executed? 
 An expectation is formed contrary to the law itself. The law, 
 then, is useless. It never exercises its power except to punish ; 
 and these inefficacious punishments are an additional reproach to 
 the law. Contemptible in its weakness, odious in its force, it is 
 always bad, whether it reaches the guilty or suffers him to escape. 
 
 This principle has often been absurdly disregarded. Por 
 example, during Law's paper-money system, when the citizens 
 of France were forbidden to keep in their houses more than a 
 certain sum in coin, — could not everybody presume on the suc- 
 cess of disobedience ? 
 
 How many mercantile prohibitions are vicious in this parti- 
 cular ! A multitude of rules easily eluded, form, so to speak, 
 a lottery of immorality, in which individuals state their money 
 against the legislator and the custom-house. 
 
 It is in accordance with this principle that the domestic 
 authority has been established in the hands of the husband. 
 If it had been given to the woman, the physical power being on 
 one side, and the legal power on the other, the discord would 
 have been eternal. If an equality had been established betw^n 
 them, this nominal equality could never have been maintained, 
 because of two opposite wills one or the other must have the 
 sway. The existing arrangement is most favourable to the peace 
 of families, because, in making the physical and legal power 
 operate in concert, everything is combined which is necessary for 
 effectual action. 
 
 This principle affords a great assistance towards the resolution 
 of certain problems which have very much embarrassed the 
 lawyers; such, for instance, as this — in what cases ought a 
 
154 PEIKCIPLES OF THE CIVIL CODE. 
 
 thing found to belong to the finder ? The easier it would be to 
 appropriate the thing in spite of the law, the more expedient is 
 it not to make a law which wiU disappoint expectation ; or in 
 other terms, the easier it is to elude the law, the more cruel it 
 would be to make a law which, presenting itself to the mind as 
 almost impossible to be executed, would do nothing but evil, 
 when by chance it should happen to be executed. This may be 
 made clearer by an example : — Should I find a diamond in the 
 ground, my first idea would be to regard it as my own ; and an 
 expectation of keeping it would be formed at the same instant, 
 not only through the bent of desire, but also by analogy with 
 habitual ideas of property. 1st. I haye the physical possession 
 of it, and this possession alone is a title where there is no 
 opposing title., 3nd. There is something of mine in the disco- 
 very j it is I who have drawn this diamond from the dirt, where, 
 unknown to all the world, it had no value. 3rd. I may flatter 
 myself with the idea of keeping it, without the aid of the law, 
 and even in spite of the law ; since it will be enough to conceal 
 it tiU I have a pretext for produciag it under some other title. 
 Now, should the law undertake to bestow the diamond upon some 
 other person than me, it could not prevent this first movement of 
 expectation, this hope of keeping it ; and in taking it away from 
 me, it would make me experience that pain of disappointment 
 commonly called injustice or, tyranny. This reason would be 
 sufficient for causing the thing to be given to the finder, unless 
 some stronger reason can be oifered to the contrary. 
 
 This rule may vary according to the natural chance of keeping 
 the thing found without the aid of the law. A shipwrecked 
 vessel which I may have been the first to see upon the coast ; a 
 mine ; an island which I may have discovered ; are objects as to 
 which an anterior law may prevent any idea of property, because 
 it is impossible for me secretly to appropriate them to my own 
 use. The law which refused them to me, being easily executed, 
 would have its fall and entire effect upon my mind ; to such a 
 degree, that if the question turned on this principle alone, the 
 legislator would be at liberty to give or refuse the thing to the 
 
PKINCIPLES OF THE CITIL CODE. 155 
 
 discoverer, as he saw fit. But there is a particular reason for 
 showing some favour to the discoverer, which is, that a reward 
 given to industry tends to augment the general wealth. "When 
 all the profit of discovery passes to the public treasury, that aU 
 is generally very little. 
 
 7th. The seventh and last condition necessary to produce a 
 conformity between expectation and the laws, requires that the 
 laws should he literally followed. This condition depends partly 
 on the laws, audpartly on the judges. If the laws do not har- 
 monize with the ideas of the people, if the code of a barbarous age 
 still prevails in an era of civHizatiDn ; the tribunals, little by 
 little, will drop old principles, and insensibly substitute new 
 maxims. Thence will result a kind of contest between laws that 
 are growing obsolete, and usage that is taking their place ; and a 
 feebleness in the effect of the laws upon expectation, will be a 
 consequence of this uncertainty. 
 
 The word interpretation has a very different meaning in the 
 mouth of a lawyer, from what it has -when employed by other 
 peojile.' To interpret a passage in an author, is to bring out of it 
 the sense which the writer had in his mind.; - to interpret a law, 
 in the sense at least of the Eoman lawyers, is .often to get rid of 
 the intention clearly and plainly expressed, and to substitute 
 some other for it, in the presumption that this new sense was the 
 actual intention of the legislator! 
 
 With such a method of proceeding, there is no security. 
 "Where the law is fixed, though it be diflS.cult, obscure, inco- 
 herent, — the citizen always has a;chance to know it. It gives a 
 confused intimation, less efficacious than it might be, yet always 
 useful ; we see at least the limits of the evil it can do. But let 
 a judge dare to arrogate to himself the power of interpreting the 
 laws, that is to say, of substituting his wUl for that of the legis- 
 lator, and everything becomes arbitrary ; no one can foresee the 
 course 'which caprice will take. The question is no longer of the 
 actual evil ; howeVer; great that may be, it is smaU iu comparison 
 with the magnitude of possible cMisequences. The serpent, it is 
 said, can pass his whole body wherever he can introduce his 
 
156 PBINCIPLES OF THE ClYIL CODE. 
 
 head. As respects legal tyranny, it is this subtle head of which 
 •we must take care, lest presently we see it followed by all the 
 tortuous folds of abuse. It is not the evil only which we ought 
 to distrust, — it is the good even which springs from such means. 
 Every usurpation of a power above the law, though useful in its 
 immediate effects, as regards the future ought to be an object of 
 terror. There are bounds, and even narrow bounds, to the good 
 which can result from such arbitrary proceedings ; there are no 
 bounds to the possible evil ; there are no bounds to the alarm. 
 An indistinct danger hovers over every head. 
 
 Without speaking of ignorance and caprice, how many facili- 
 ties does this arbitrary system afford to partiality ! The judge, 
 now conforming to the law, and now explaining it away, can 
 always decide a case to suit his own designs. He is always sure 
 of saving himself, either by the literal sense or the interpretation. 
 He is a charlatan who astonishes the spectators by making sweet 
 and bitter run from the same cup. 
 
 One of the most eminent characteristics of the English tribunal 
 is their scrupulous fidelity in following the declared will of the 
 legislator ; and in directing themselves as much as possible, by 
 former judgments, in that imperfect part of English legislation' 
 which depends upon custom. This rigid observation of the laws 
 may have considerable inconveniences in an incomplete systenL, 
 but it is the true spirit of liberty which inspires the English with 
 so much horror for what they caU ex post facto laws. 
 
 All the conditions which constitute the goodness of the laws 
 have so intimate a connection that the fulfilment of one supposes 
 the fulfilment of the others. Intrinsic utility ; apparent utUity ; 
 consistency; simplicity; facility of being known ; probability of 
 execution ; all these qualities may be reciprocally considered aa 
 the cause or the effect of each other. 
 
 If that obscure system called custom were no longer permitted, 
 and everything were reduced to written law ; if the laws which 
 concern every member of the community were arranged in one 
 volume, and those which concern particular classes in little sepa- 
 rate collections ; if the general code were universally dissemi- 
 
PartfCIPLES OP THE CITCL CODE. 157 
 
 nated ; had it liecome, as among the Hehrews, a part of worship 
 and a manual of education ; if a knowledge of it were required 
 as preliminary to the enjoyment of political rights; — the law 
 would then be truly known ; every deviation from it would be 
 manifest ; every citizen would become its guardian ; its violation 
 would not be a mystery, its explanation would not be a mono- 
 poly ; and fraud and chicane would no longer be able to elude it. 
 
 It is fiirther necessary that the style of the laws should be as 
 simple as their provisions ; that it should make use of common 
 language ; that its forms should have no artificial complexity. If 
 the style of the code differed from that of other books, it should 
 be by a greater clearness, by a greater precision, by a greater 
 familiarity; because it is designed for all understandings, and 
 particularly for the least enlightened class. 
 
 After having imagined such a system of laws, if we proceed to 
 compare it with what actually exists, the sentiment that results 
 is far from favourable to our institutions. But" however bad 
 existing laws may be, let us distrust the declamations of chagrin 
 and the exaggerations of complaint. He who is so Hmited in his 
 views, or so passionate in his ideas of reform as to desire a 
 revolt, or to bring the established system into general contempt, 
 is unworthy to be heard at the tribunal of an enlightened public. 
 Who can enumerate the benefits of law, I do not say imder the 
 best government, but under the worst ? Are we not indebted to 
 it for all we have of security, property, industry, and abun- 
 dance ? Are we not iiidebted to it for peace between citizens, for 
 the sanctity of marriage, and the sweet perpetuity of families ? 
 The good which the law produces is universal; it is enjoyed 
 every day and every moment. Its evils are transient accidents. 
 But the good is not perceived ; we enjoy it without referring it 
 to its true cause, as if it appertained to the ordinary course of 
 nature; while evUs are vividly felt, and, in the description of 
 them, the suffering which is spread over a great space and a long 
 series of years, is accumulated by the imagination upon a single 
 moment. How many reasons we have to love the laws in spite 
 of their imperfections ! 
 
lo8 
 
 PART SECOND. 
 DISTRIBUTIOIT OF PEOPERTY. 
 
 CHAPTER I. 
 
 Titles which comtitide Property, 
 
 Wis have already shown the reasons ■which induce the iegislator 
 to Banotion property. Bilt hitherto we have viewed wealth only 
 in the mass; it is now necessary to descend to detailsy to take 
 the individual' ' objects' which compose it,' and to seek the prinr 
 cifles which ought to ,govem the distribution of property, at.the 
 time when it presents itself to the lA,w,' to be appropriated to such 
 or such individuals. These principles are the same which we 
 havie already laiid do'vynj viz., Siihsistencb, A-bun'dance^ EquaLity, 
 Seewity. "Where ttey; agree, the decision is easy; when they 
 diflFer, we must learn to distinguish where the jireference should 
 be given. 
 
 I. ActiTAi Possession'. — ^Actual possession is a title fo. pro- 
 perty which precedes all others, and may hold the pfaoe of them. 
 It wiU always be good against every man who has no other to 
 oppose to it." Arbitrarily to take away from him who has, for 
 the sake of giving to him who has not, is to create a los;- un one 
 side and a gaii on the other, i But, first, the value of the result- 
 ing pleasure! will not be equal to the amount of tlie resulting 
 pain ; second, such an act of violence, by its attach upon si c'urity, 
 will spread alarm among all prdprieitors. It appears, thru, that 
 actual possession is a title founded upon good of the first order, 
 and good of the second order. 
 
PBIXWrLES OP THE CIVII. CODE. 159 
 
 "What is called the right of the first oocupdwt, or of original 
 discovery, ani(3uiits to the same thing. When the right of pro- 
 perty is awarded to the first occupant, — 1st. He is spared the 
 paia of disappointment, the pain he ■would have felt at seeing 
 himself deprived of a thing of whidh he had been the first to take 
 possession. 2nd. The contests are prevented which might take 
 place between the first occupant and a succession of competitors 
 for the possession. 3rd. Certaia enjoyments are produced, which 
 otherwise would have had no existence ; for the first occupant, 
 if he had no right of possession, dreading to lose what he had 
 found, would not dare t6 enjoy it openly, for fear of betraying 
 himself; and whatever he could not instantly consume would be 
 valueless to him. 4th. The enjoyment thus bestowed upon a 
 discoverer is a spur to the industry of others, who will be en' 
 oouraged to seek like enjoyments for themselves; and these 
 individual, acquisitions will result in general wealth. ■ 5th^ If 
 unappropriated things did not belong to the first occupant, they 
 would always be the prey of the strongest, and the weak would 
 be for ever oppressed. 
 
 AH these reasons do.' not present themselves distinctly to men's 
 minds ; but they are perceived in a confused manner, as it were 
 .instinctively. Such, they say, is the decree of reason, equity, 
 and justice. These words, which everybody repeats and nobody 
 explains, express nothing but a sentiment of approbation ; but 
 this approbation, founded ^upon solid reasons, acquires a new 
 force when distinctly supported upon the principle of utility. 
 
 The title of original occupation formed the primitive foundation 
 of property. It will stiU serve as regards islands newly risen 
 from the waters, or lands newly • discovered, saving the right of 
 government, which is a peculiar incident of sovereignty. 
 
 II. Ancient Possession in Good Paith. — Possession, after a 
 certain period fixed by the law, ought to prevail over all other 
 titles. If you have suffered that period to elapse without putting 
 in a claim, it is a proof, either that you were ignorant of the 
 existence of your right, or that you had no intention to avail 
 yourself of it. In these two cases there is no expectation on 
 
160 PEINCIPIES OF IHE CIVIL CODE. 
 
 your part, no desire to gain possession ; and on my part tHere 
 is an expectation and a desire to preserve it. To leave the 
 possession witli me ■will not be contrary to security ; but it wUl 
 be an attack upon security to transfer the possession to you, for 
 it will give inquietude to aU possessors who are. obliged to rely 
 for their title upon ancient possession in good faith. 
 
 But what length of time is necessary to produce this displace- 
 ment of expectation ? or, in other words, what period is necessary 
 to legitimate property in the hands of a possessor, and to extin- 
 guish every opposite title ? To~ this inquiry, no exact answer 
 can be given. It is necessary to draw at hazard the line of 
 demarcation, according to the kind and value of the property in 
 question. If this line does not always prevent the pain of dis- 
 appointment among those actually interested,; it will at least 
 prevent all evil of the second order. The law informs me that 
 if during one year, ten years, or twenty years, I neglect to claim 
 my right, the loss of that right will be the result of my negligence. 
 This threat, the effects of which I can prevent, is not calculated 
 to disturb my security. 
 
 I suppose that the possession is in good faith, that is, that the 
 possessor believes himself to have a title. If not so, to confirm 
 it would not be to favour security, but to reward crime. The 
 age of Nestor ought not to be sufficient to insure to the fraudulent 
 usurper the wages and the pay of his iniquity. "Why should 
 there be a time when the malefactor can become tranquil ? "Why 
 should he enjoy the fruits of his offence under the protection, of 
 the laws he has violated ? 
 
 With respect to heirs, a distinction must be taken. Are they 
 possessors in good faith, believing themselves to have a title ? 
 The same reasons can then be alleged in their behalf as in behalf 
 of the former proprietoi, and they have the possession beside, 
 which inclines the balance in their favour. Are they possessors 
 in bad faith, as their ancestor was ? Then they are his accom- 
 plices, and impunity ought never to become the privilege of 
 fraud. 
 
 This second title is what is commonly called Prescription. 
 
PEIKCIPIES OF THE CIVrE CODE. 161 
 
 The reasons on which, it is founded are the prevention of dis- 
 appointment and the general security of proprietors. 
 
 III. Possession op. tee Contents and Peodttce op Land. — 
 The property of a field: includes everything which the field 
 contains, and everything which it produces. 'We understand by 
 contents everything beneath the surface, such as mines and 
 quarries ; by produce, everything that belongs to the vegetable 
 kingdom. All possible reasons,^ — security, subsistence, the aug- 
 mentation of general wealth, the good of peace, — combine to give 
 this extent to the right of property in land. 
 
 IV. Possession of. what Land suppoets, and of what it 
 RECEIVES. — If my land has supported animals, it is to me that 
 they owe their sustenance. Their existence would be a loss to 
 me if the possession of the animals themselves did not secure 
 me an indemnity. If the law .gave them to another it would be 
 a pure loss on my part and a pure gain on his — an arrangement 
 as contrary to equality as to security. It would then become 
 my interest to diminish their number and to prevent their multi- 
 plication, which would be manifestly to the detriment of the 
 general wealth. 
 
 If chance has thrown upon land things which have not yet 
 received the stainp of property, or which have lost the impress 
 of it, as a whale driven on shore by a storm, the scattered frag- 
 ments of a wreck, or trees torn up by the roots, such things ought 
 to belong to the owner of the land. The reason of this prefer- 
 ence is, that he is so situated as to derive a profit from them 
 without any individual being subjected to a loss ; they eannct be 
 taken from him without occasioning a pain of disappointment, 
 and finally, no other person can take them without occupying his 
 land and trespassing upon his rights. He has all the reasons of 
 a first occupant in his favour. 
 
 V. Possession of adjacent Lands. — If water which has 
 covered unappropriated land leaves it, to whom shall the new 
 land belong ? There are many reasons for giving it to the pro- 
 prietors of the adjacent lands. 1st. They only can occupy it 
 without trespassing upon- the property of others. 2nd. They 
 
162 PEINCrPIES OF THE CIVIL COLE. 
 
 only have formed some expeotatioa of possessing it, or can look 
 upon themselves as having a claim to it. 3rd. The chance of 
 gaining by the retreat of the waters is no more than an 
 rddemnity for the chance of losing by their invasion. 4th. The 
 property in land gained from the water wiU operate as a reward 
 calculated to stimulate the labour necessary to this kind of 
 conquest* 
 
 VI. Amelioeations or one's own Peopeutt. — If I have 
 applied my labour to one of those things which already belong 
 to me, my title acquires a new force. I have sowed and gathered 
 these vegetables, the produce of my land ; I have taken care of 
 thfese animals, I have dug these roots, I have cut these trees and 
 shaped them. If I should have suffered at seeing these things 
 taken from me before I had bestowed any pains upon them, how 
 much more shall I suffer after the efforts of my industry have 
 given them a new value, and have fortified my attachment to them 
 tad my expectation of keeping them? This fund for future 
 enjoyment, which labour constantly increases, could not exist 
 without security. 
 
 VII. Possession in good Paith with Amelioeation oe 
 anothee's Peopekty, — But, if I have applied my labour to a 
 thing belonging to another, treating it as if it belonged to me^j 
 for example, if I have made cloth of your wool, to which of us 
 shall the manufacture belong ? Before answering, it is necessary 
 to ascertain the state of the facts. Is it in good faith or bad 
 faiih that I have treated the thing as my property ? If I havo 
 
 ^ Such ia tlic theory. In practice, many details will be required, 
 otherwise this concession will resemble that famous partition of the new 
 world, which a pope made between the Spanish and Portuguese. Sup- 
 pose the water quits a bay, which has many proprietors on its shores ; 
 shall the distribution be regulated according to the quantity of land 
 wliioh eaoh possesses, or to the extent of his shore ? Lines of demarca- 
 tion will be necessary ; but it will not answer to wait till the event has 
 arrived, and the value of the land is known, for then all will entertain 
 hopes, which some only can realize. The event must be anticipated, and 
 expectation not yet formed will then be docile in the hands of the 
 logislaior. 
 
PEINCIPLES OP THE CITII. CODE. 168 
 
 acted in bad faith, to give me the production would be to reward 
 crime ; if I have acted in good faith, it remains to inquire which 
 of the two values is the greater, the original value of the thing 
 worked upon or the additional value of the labour bestowed upon 
 it ? How long since the first owner lost it ? How long have 1 
 possessed it ? To whom belongs the place in which it is at ths 
 moment when it is reclaimed, — to me, to the former possessor, or 
 to a stranger ? 
 
 The principle of caprice, vrithout regard to the comparative 
 amount of pains and pleasures, gives everything to one of the 
 parties without paying any attention to the other. The principle 
 of utility anxious to reduce to the least term an inevitable incon- 
 venience) weighs the two interests, seeks the means of reconciling 
 them, and directs indemnities. It grants the thing itself to that, 
 claimant who would suffer the greater loss if his demand were 
 refused, upon the condition, however, of giving to the other a 
 sufficient indemnification. 
 
 It is according to these same priaciples that we must answer 
 the same question in relation to things which become mixed and 
 confounded, as metal of yours and mine which has run together 
 in the melting-pot, or liquors of mine which have been poured 
 into the same recipient with yours. There are great debates 
 among the Eoman jurists who shall have the whole; the 
 Sahinians wish to give the whole to me, the Proculeians wish to. 
 giye the whole to you. Which is right? Neither. Either 
 decision would stiU leave one of the parties a sufferer. A single- 
 question might cut short aU these debates — ^Which of the two,, 
 in losing what belonged to him, would lose the most ? Let himi 
 have the possession, and let the other have an indemnity. 
 
 The English lawyers have cut this Gordian knot. They have- 
 not troubled themselves to examine on which side would be the 
 greater injuryj they make no account of good faith or of ba,d 
 faith, , they make no inquiry as to the greater value or the stronger- 
 expectation. They decide that the property of movable effects 
 shaU always be given to the actual possessor, on condition,- 
 however, of indemnifying the other claimant. , 
 
164 PEINCIPLES OF THE CIVIL CODE. 
 
 VIII. EXPLOEATION OE MiNES IN THE LaND 0]? AnOTHEE. 
 
 Tour land has hidden treasures in its bosom ; but, because you 
 lack the knowledge or the means, or have little confidence of 
 success, you do not dare to undertake the enterprise of mining, 
 and the treasures remain buried. If I, a stranger to your land, 
 have all the means of exploration which you want, and I wish to 
 imdertake it, ought the right to be granted to me without your 
 consent? Why not? Under your hands these buried riches 
 are of no use to anybody ; in mine they wiU acquire a great 
 value — thrown into circulation they will animate industry. What 
 wrong is done to you ? You lose nothing. The surface, the 
 only thing which you put to any use, may still remain in the 
 same condition. But the law, attentive to the interests of all, 
 ought to secure you a share, greater or less, of the produce ; for, 
 though this treasure might be of no actual value in your hands, 
 stiU. you would have an expectation of sometime profiting by 
 it, and you ought not to be deprived of that chance without 
 ndemnity. 
 
 Such is the English law. Under certain conditions, it allows 
 a vein, discovered in one field, to be followed into another by any 
 one who is willing to undertake the enterprise. 
 
 IX. LiBBETT OE EisHiNG iif GrEEAT Watees. — Great lakes, 
 great rivers, great bays, and especially the ocean, are not occupied 
 <by exclusive proprietors. They are considered as belonging to 
 mobody, or rather as belonging to all. 
 
 There are no reasons for limiting the ocean fisheries. The 
 
 ^'multiplication of most kinds of fish appears to be inexhaustible. 
 
 /In this matter the prodigality, the magnificence of nature almost 
 
 ■ surpasses conception. The indefatigable Leuwenhoek has esti- 
 
 •mated that the spawn of a single cod is capable of producing six 
 
 millions of codlings. What we can take or consume out of this 
 
 immense magazine of food is absolutely nothing when compared 
 
 with the destruction produced by physical causes, which we can 
 
 ■neither lessen nor prevent. Man on the ocean, with his wherry 
 
 Land his nets, is but a feeble rival of the great rulers of the sea. 
 
 Sharks cause more ravages among the small fish than he does. 
 
PBXSCrPLES OF THE CITIL CODE. 165 
 
 As to the fisli of rivers, lakes, and small bays, the laws take 
 precautions for their preseryation, at once necessary and 
 efficacious. 
 
 "Where there is no occasion for jealousy, and no fear that the 
 number of competitors mil diminish the fund of -wealth, it is 
 better to leave to every one the right of first occupancy, and ti 
 encourage every kiad of labour that tends to augment the general 
 abundance. 
 
 X. LiBEEiT OE Hunting tjpon' TTnappiiopeiated GEOuifxis. — It 
 is the same with unappropriated lands. Uncultivated wastes and 
 savage forests. In those vast countries which are not peopled ia 
 proportion to their extent, these unappropriated tracts are often 
 of great size, and the right of hunting may be exercised without 
 limit. Man there is only a rival of the beasts of prey, and the 
 chase enlarges the fund of subsistence without injuring anybody. 
 
 But in civilized societies, where agriculture has made great 
 progress, and ■jvhere unappropriated lands bear only a small pro- 
 portion to those which have received the impress of possession, 
 there are many reasons against allowing this right of chase. 
 
 First inconvenience. — In those countries where the population 
 is numerous, the destruction of wild animals may go on faster 
 than their reproduction. Eender the chase free, and the animals 
 which are the object of it would sensibly diminish, and even be 
 annihilated. The sportsman would presently have as much 
 trouble to obtain a single partridge as he now has to get a hun- 
 dred, and the price would be enhanced a hundred-fold. He 
 would suffer no loss himself, but he would furnish to society only 
 a hundredth part the value which he now furnishes. In simpler 
 terms, the pleasure of eating partridges would be reduced a 
 hundred-fold. 
 
 Second inconvenience. — The chase, without being more produc- 
 tive than other labours, has unhappily more attractions. Sport 
 is combined with labour, idleness with exercise, and glory with 
 danger. The charm of a profession so well adapted to all the 
 natural tastes of man wUl draw into this pursuit a great nun^ber 
 of competitors ; by their competition they wUl reduce the profits 
 
166 PEIlfCrPLES OP THE CITIt CODE. 
 
 of tMs employment to a mere subsistence ; and in general this 
 class of adventurers will be poor. 
 
 Third, inconvenience. — The chase having particular seasons, there 
 ■will be intervals during which the huntsman will be unemployed. 
 He will not easUy return from a wandering to a sedentary life, 
 from independence to subjection, and from a habit of idleness to 
 a habit of labour. Accustomed, like the gambler, to live upon 
 chances and hope, a small fixed income has few attractions for 
 him. The want and idleness of such a condition naturally lead to 
 crime. 
 
 Fowth inconvenience. — The very exercise of this profession is 
 naturaUy fertile in offences. The quarrels, the lawsuits, the 
 prosecutions, the convictions, the imprisonments and other punish- 
 ments which it causes, are more than sufficient to counterbalance 
 its pleasures. The hunter, tired with vainly waiting for his prey 
 on the highways, secretly spies out the game in the neighbouring 
 enclosures. Does he think himself observed? He turns aside 
 and waits, for he is an adept in patience and stratagem. Does he 
 see no witnesses ? He respects boundaries no longer ; he jumps 
 the ditches, he leaps the hedges, he devastates enclosures ; and 
 his cupidity betraying him into imprudences, he gets himself into 
 perilous positions, whence he cannot escape without disaster or 
 crime. If hunting were permitted on the high roads, there 
 would be needed an army of guards to restrain the wanderings of 
 the hunters. 
 
 Fifth inconvenience.— If this right of chase, so little advan- 
 tageous when confined within such narrow limits, is still suffered 
 to exist, the civil and penal code wiU. need an assortment of laws 
 to limit its exercise and to punish its excesses. This multipli- 
 cation of laws is always an evil, because laws cannot be multiplied 
 without being weakened. Besides, the severity necessary to pre- 
 vent offences so easy and so attractive gives an odious character 
 to property, and places the opulent in a state of war with their 
 poor neighbours. The way to cut this matter short is not to 
 regulate the right, but to suppress it. 
 
 The prohibitive law being once known, no expectations will bo 
 
PEBfCJIPIES OF THE CIVIL CODE. 167 
 
 formed of enjoying this privilege. Partridges -will no more be 
 coveted than pullets, and even in the minds of the multitude 
 poaching wOl not be distinguished from theft. 
 
 It is true that at the present day popular ideas are in favour of 
 this right of hunting; but if a condescension is due to popular 
 ideas, it is only upon occasions when they have a great power, 
 and when there is little hope of changing them. Let pains be 
 taken to enlighten the people, to make the ihotives of the law 
 evident, to exhibit it as a means of peace and security, to show 
 that the exercise of this right reduces itself almost to nothing, 
 that the life of a hunter is miserable, that this ungrateful pro- 
 fession constantly exposes him who follows it to the commission 
 of offences and his family to poverty and shame ; and I dare to 
 affirm that popular ideas, pressed by the continuous and mild 
 force of reason, would presently assume a new direction.* 
 
 There are animals^ whose, value does not compensate the damage 
 they do ; such as foxes,; wolves, bears, and all beasts of prey, the 
 enemies of the animals subject to man. So far from preserving, 
 it is an object to destroy them. One means for this end is, to 
 give all a right to destroy them, and a property in the beast when 
 slain, without regard to the ownership of the land. Every 
 hunter who attacks these hurtful animals ought to be considered 
 as employedby the! police. But this exception ought to be ad- 
 mitted only in case of animals capable' of much mischief ' - 
 
 ^ We may observe,, that of the fiv;e inQonyenienpes above enumerated 
 with which the right of free hunting is said to be attended, the second, 
 third, and fowih resoJve themselves into this, viz.," that in a civilized 
 community, the business of huntiiig is a private loss and a public incon- 
 venience. This being granted— and the fact is doubtless so— if by per- 
 mitting free hunting, that annihilation of wild game, which is described 
 as the firsA .inconvenience, can be •brought .about, it will jbe a decided 
 benefit; and when hunting ceases for want of game, of course all th^ 
 evils which go to make up the inconveniences of its existence will dis-. 
 appear with it. This is a view of the case which the author seems not 
 to have taken. That a right of free hunting would operate in this W£iy, 
 the example of MassacTmsetii clearly proves, a state in which game' and 
 sportsmen are equally rare, and game laws arfe unknown. — ^IVrtrvslWbn '■■•i 
 
168 PEINCIPLES or THE dTIL CODE. 
 
 CHAPTEE II. 
 
 Title ly Consent. 
 
 It may happen that possessing a thing ,by a lawful title, we wish 
 to dispossess ouiselves of it, and to abandon its enjoyment to 
 another. Shall such an arrangement be confirmed by the law ? 
 Doubtless it shall be. All the reasons which plead in favour 
 of the old proprietor change sides with the transfer, and then 
 plead in favour of the hew one. Besides, the former proprietor 
 must have had some motive for abandoning his property. Motive 
 is pleasure, or equivalent ; pleasure of friendship or of benevo- 
 lence, if the thing was given for nothing; pleasure of acquisition, 
 if it was a means of exchange ; pleasure of security, if it was 
 given to ward off some evil ; pleasure of reputation, if the object 
 was to acquire , the esteem of others. It seems, then, that the 
 transfer must increase the enjoyment of the parties interested in 
 it. The acquirer stands in the place' of the conferrer as to the 
 old advantages, and the conferrer acquires a new advantage. "We 
 may then lay it down as a general maxim, that every alienation 
 imports ackantage. A good of some sort is always the result 
 of it. 
 
 When the question is of an exchange, there are then two 
 alienations, of which each has its separate advantages. The 
 advantage for each of the contracting parties is, the difference 
 to him between the value of the thing he gives-, and that of the 
 thing he acquires. In every transaction of this sort there are 
 two new masses of enjoyment. In this the good of commerce 
 consists. 
 
 In all the arts, there are many things which cannot be pro- 
 duced except by the concourse of a great number of workmien. 
 In all . these cases the labour of an individual would have 
 no value, either for himself or for others, if it could not be 
 exchanged. 
 
 II. Cases is which Exchanoes should be Invalid. — But 
 there are cases in which the law ought not to sanction exchanges, 
 
rKINCIPLES OP THE CITIL CODE. 169 
 
 and in -which the interests of the parties ought to be regulated, 
 as if the bargain had not taken place ; because, instead of being 
 advantageous, the exchange would be injurious to one of the 
 parties, or to the public. "We may arrange all the causes which 
 invalidate exchanges under the nine following heads : — 
 
 1st. Concealment. 
 
 2nd. Fraud. 
 
 3rd. Coercion. 
 
 4th. Subornation. 
 
 5th. Erroneous idea of legal obligation. 
 
 6th. Erroneous idea of value. 
 
 7th. Incapacity. 
 
 8th. Probable inconvenience to the public. 
 
 9th. "Want of right on the part of the conferrer. 
 1st. Concealment. — If the thing acquired proves of less value 
 than the acquirer had expected, he experiences regret, and feels 
 a pain of disappointment. If the value is not equal to what he 
 ,;gave in exchange, instead of gaining, he has lost. It is true 
 taat the other party has gained ; but the good of gain is not 
 equivalent to the evil of loss. I have paid ten guineas for a 
 horse, which would be worth that sum if he were sound ; but, 
 as his wind is broken, he is worth but two guineas. The seller 
 has gained eight guineas, which I have lost ; but, if the interests 
 of the two parties be weighed together, the trade, on the whole, 
 is not productive of pleasure, but the contrary. 
 
 But if at the time of the sale this inferiority of value was 
 unknown to the former proprietor, why should the exchange be 
 void ? Why oblige him to make a disadvantageous re-exchange? 
 The loss must fall on somebody, and why on him more than 
 another? And even suppose that he knew the circumstance 
 which lessened the value of the thing, was he obliged to com- 
 municate it without being asked ? 
 
 The, two following questions arise in every case of invalidity 
 resulting from concealment: — Did the seller Imow of the exist- 
 ence of the fault? "Was it a case in which he ought to have 
 told of it ? The solution of these questions demands too many 
 
170 PEINCIPLES OP IHE CIVIL CODE. 
 
 details and researclies to find a place tere, especially as an answer 
 cannot be given wMch. embraces every case, but divers modifica- 
 tions are necessary, according to the different kinds of tbings. 
 
 2nd. Fraud.— This case is simpler than the preceding. A 
 fraudident acquisition ought never to be permitted when it can be 
 hindered. Praud is an offence which borders upon theft. Ton 
 asked the seller if the horse was broken -winded ; he replied in 
 the negative, knowing the contrary. To sanction such a trade 
 would be to reward crime. Add the reason in the preceding 
 case, namely, an evil to the purchaser greater than the good to 
 the seller, and it will then appear that this cause of invalidity is 
 well founded. 
 
 3rd. It is the same with coercion. A seller whose horse is 
 worth but two guineas has constrained you, by violence and 
 threats, to give ten guineas. Suppose you would have been 
 wUling to pay two guineas;'' the surplus is so much gained by an 
 offence. It is true that this loss was. an advantage "to you in 
 comparison with the evil you were threatened with in case of 
 ref iMal ; but neither this comparative advantage, nor the gain of 
 the delinquent, can eountei'balance the evil of the offence. 
 
 4th.. It is the same with subornation; by which I understand 
 the price of a service, which consists in com'mittLng an offence, as 
 money promised to a man to engage him to give a false deposi- 
 tion. There are two advantages in such a bargain, that of the 
 suborned and that of the suborner; but these two advantages 
 are not at all equal to the evilof the offence. 
 
 It maybe observed in passing, that in the case of fraud, of undue 
 coercion, and of subornation, the law, not content with annulling 
 the act, opposes to it a stronger counter-weight of punishment. 
 
 6th.. JErroneous Idea of Legal Ohligaiion. — ^You have delivered 
 your horse to a man, under an erroneous idea that your manager 
 had sold him. Or you have delivered your horse to a man under 
 the impression that he was authorized by the government to take 
 him for the use of the state; in one word, you imagine yourself 
 obliged to sell, when no such obligation exists. If after the 
 discovery of the mistake the alienation should be confirmed, the 
 
PRINCIPLES OP THE CIVIL CODE. 171 
 
 buyer wOTild make an unexpected gain, -while the seller would 
 experience an unexpected loss. But w6 hare seen that the 
 ■gooi of gcdn is not equivalent to the evil of loss. Besides, this 
 case may be classed with that' of coercion. 
 
 6th. Erroneous Idea of Value. — ^If, in alienating a thing, I was 
 ignorant Of a circumstance which tended to augment its value, 
 upon discovering my error, I shall experience the regret of loss. 
 But is that a reason for invalidating the contract ? On the one 
 side, if such causes of nullity are admitted without restriction, 
 there is the risk of a great discouragement to exchanges ; for what 
 security of acquisition dO' I have, if the seller can break the 
 trade, under the pretence of not kno'wulg what he was about ? 
 ■On the other side, there would be the pain of a very' lively 
 regret, if after having sold a diamond as a morsel of crystal, 
 •there were no means of recovering it. To hold an equal balance 
 between the parties, we tnust conform' to the diversity of circum- 
 stances and of things. We must always exaimine if the igno- 
 rance. of the seller were not the result of negligence; and even 
 should the case require the avoidance of the sale,- it will always 
 ■be necessary to provide for the security of the person whose 
 interest it would be to have the bargain confirmed. 
 - But it may be that a trade exempt ^from, all these faults turns 
 out to be disadvantageous. You bought a horse for the sake of 
 a journey which you do not make. When yOu are. ready to set 
 out, the horse faHs sick and dies. You set out, and the horse 
 throws you and breaks your leg; You mount the horse, but only 
 to go on the highway to rob. The fancy which made you buy 
 him was transitory, and, being past, leaves you a loser. These 
 eventual cases may be multiplied indefinitely, — cases in ■which a 
 thing acquired on account of its value becomes useless, or onerous, 
 or fatal to the acquirer, or to another. Are not these exceptions 
 to the axiom that every exchange imports an advantage ? Are 
 not these reasonable grounds for invalidating the contract? ' • 
 . No; All these unfavourable eveits are only matters of acci- 
 dent, posterior to the sale. The common case is, that the thing 
 is worth what it costs. The total advantage of useful exchanges 
 
172 TEISSrClPLES OF IHE CITIl CODE. 
 
 is far more than equivalent to the total disadvantage of such 
 as ate unfavourable. The gains of oommere are greater than the 
 losses, since the world is now richer than in the savage state. 
 Alienations in general ought, then, to be maintained. But to 
 annul alienations, on account of accidental losses, would be to 
 interdict alienations in general ; for nobody would wish to sell, 
 nobody would wish to buy, if the transaction could be annulled - 
 at any moment, on account of some subsequent event impossible 
 to be foreseen or prevented. 
 
 7th. There are cases in which the legislator foresees the evU of 
 conventions, and prohibits them beforehand. It is thus that in 
 many coimtries prodigals are incapacitated to contract, that is, all 
 contracts with them are declared void. But the danger of such 
 contracts, that is, the disposition which renders the prodigal 
 unfit to manage his own affairs, is always previously made known. 
 Every one has notice, or at least might have, of the incapacity 
 which the guardian hand of justice has imposed. 
 
 In all countries there has been established an incapacity to con- 
 tract in the two analogous cases of infancy and madness ; I say 
 analogous, for what a child is, for a period which may be suffi- 
 ciently well determined, though always by a demarcation more or 
 less arbitrary, the madman is, for a time indeterminate, or per- \ 
 petual. The reasons are the same as in the preceding case. 
 Minors and persons of unsound understanding are, by their con- 
 dition, either ignorant, rash, or prodigal. This is presumed by a 
 general induction, which does not need to be sustained by par- 
 ticular proofs. 
 
 It is plain that in these three cases the incapacity ought to ex- 
 tend only to things of a certain importance. To apply them to 
 little objects of daily consumption would be condemning these 
 three classes to die of famine. 
 
 8th. The law sometimes invalidates contracts in consideration of 
 some public inconvdnience likely to result from them. 
 
 I have, a landed property situated on the boundary of the state. 
 If acquired by the neighbouring power it might become the seat 
 of hostile iatrigues, or might favour preparations dangerous to my 
 
PEINCIPLES OE THE CIVIL CODE. 173 
 
 country. Wiether I have or have not suet an intent, the law 
 ought to provide for the public interest. It ought to prevent the 
 evil by refusing beforehand to give a sanction to such sales.* 
 
 The restraints which it has been thought fit to put upon the 
 sale of drugs which operate as poisons may be referred to this 
 head. It would be the same of a prohibition to sell murderous 
 arms, such as stilettoes, so frequently used in Italy in the most 
 common quarrels. 
 
 It is to this same motive, well or ill founded, that we ought to 
 refer all prohibitions relative to the introduction or sale of certain 
 species of merchandise.f 
 
 In most of these cases the custom is to say, that the contract is 
 void in itself. "We need but open the law books to see what 
 nonsense has been gravely uttered upon this subject, and 'to dis- 
 cover into what absurdities the lawyers have fallen, from not 
 having seized upon the' sole cause of the invalidity of contracts 
 made under these circumstances, to wit, that they are attended 
 by more evil than good. i 
 
 Having said that these contracts are void in themselves to be 
 consistent, it seems to follow that they ought not to have any 
 effect ; that they ought to be annihilated ; and that no trace of 
 them should be left. , However, there are abundance of cases in 
 which it wiU be sufficient to modify them, and to correct their 
 inequality by compensations without altering the substance of 
 the original contract. 
 
 Ko contract is volu ia itself; none is valid in itself. It is the 
 law which, in either case, grants or refuses validity. But for 
 
 * Most nations, perhaps withont thinking of it, have obviated this 
 danger by a general law, which forbids strangers to acquire lands. But 
 that is going too far. The reason of the prohibition does not extend 
 beyond the particular case above mentioned. The stranger who wishes 
 to buy immoveable property, gives the country of his choice the most 
 imequivooal proof of his affection, and the surest pledge of good conduct. 
 Even if we look no further than to finauce, the state cannot but gain by 
 Buoh purchases. 
 
 + Under this head fall the laws prohibiting the traffic in ardent spirits. 
 — TramslatoT, 
 
174 PEDfCIPIES OF THE CIVH COBE. 
 
 granting or refusing it, reasons are necessary. Equivocal gene- 
 ration is banished from sound physiology ; perhaps some day it 
 will be banished from jurisprudence. This void in itself is pre- 
 cisely an equivocal generation. 
 
 III. Obstacies id the 'Alienation op Land. — To say that 
 the power of alienation is useful, is also to say that all arrange- 
 ments which tend to prevent it are generally pernicious. 
 
 It is with respect to immoveables that this inconsistency has 
 chiefly been displayed, whether by entails or by inalienable foun- 
 dations, described by English lawyers as grants in mortmain ; 
 yet, besides the general reasons already given, there are some 
 particular ones in favour of the free alienation of land. 
 
 1st. He who seeks to get rid of a landed estate shows suffi- 
 ciently that it is not for his advantage to keep it. He either 
 cannot or will not spend anything for its improvement ; indeed, 
 it often happens that he cannot help sacrificing its future value 
 to satisfy a present want. On the contrary, he who seeks to 
 acquire an estate certainly has no intention of diminishing its 
 value, and he probably means to increase it. 
 
 It is true that the same capital which would be employed in 
 the improvement of a landed"" estate might otherwise be employed 
 in commerce ; but, although the advantage of these two employ- 
 ments might be the same to an individual, they would not be the 
 same to the state. That portion of wealth which is applied to 
 agriculture is more fixed ; that which is appUed to commerce is 
 more fugitive. The first is immoveable ; the second can be trans- 
 ported at the pleasure of the proprietor. 
 
 2nd. By mortgaging an immoveable estate a productive capital 
 may be raised. Thus one portion of the value of a landed estate 
 may be employed in the improvement of the other portion of it ; 
 an enterprise which, perhaps, without that resource, could not be 
 undertaken. To prevent the free alienation of lands is to diminish 
 the productive capital which might be employed in their improve- 
 ment nearly to the amount of their saleable value ; for a thing , 
 cannot be mortgaged unless it can be alienated. 
 
 It is true that we speak here only of loans ; and there is no 
 
PEINCrPLES OP THE CITIL CODE. 175 
 
 new capital created by a loan. This same capital, in otter hands, 
 might receive a destination not less useful ; but it is to be observed 
 that the more means there are for employing capital the greater 
 amount of it will come into a country. That which comes from 
 abroad forms a net addition to the domestic supply. 
 
 These restrainsts upon alienation, though condemned by the 
 soundest notions of political economy, are to be found almost 
 everywhere. It is true that they have gradually diminished in 
 proportion as governments have better understood. the interests of 
 agriculture and commerce ; but there are still three causes which 
 operate to maintain them. 
 
 The first is, the desire of preventing prodigality. But to ob- 
 viate this evU, it is not-necessary to prevent the sale of lands ; 
 it will be sufficient to protect their value by not leaving it at the 
 disposal of the prodigal. 
 
 The second is, family pride,, joined to that agreeable iUusiouj 
 which paints the successive exigtqnce of our descendants as the 
 prolongation of our own. The imagination is not satisfied with 
 the idea of leaving our children the same value ; they must 
 possess the same lands, the same houses, the same natural objects. 
 This continuity of possession appears, a continuity of enjoyment, 
 and givtes support to a feeling chimerical and absurd. 
 
 The third cause is, the love of power, the desire of ruling after 
 death. The preceding motive supposes a posterity, this does not. 
 It is to this cause that we must refer all foundations, both those 
 which have an object of utility, well or ill understood, and those 
 of pure fancy. 
 
 If a foundation consists merely in the distribution of benefits 
 witboutimposing any conditions, and without exacting any service,: 
 it appears sufficiently innocent, and its continuation is not. an evil. 
 We must except foundations for distributing alms without dis- 
 tinction and discernment, which serve merely to promote men- 
 dicity and idleness. The best of these establishments are those 
 in favour of such poor as were once of a better condition. They 
 are a means of providing for such unfortunates a more liberal 
 support than public charity would allow. 
 
176 PKIS-CIPLES OF IHE CIVIL CODE. 
 
 As to foundations, the benefits of which, are not granted except 
 on the fulfilment of certain duties, such as convents, colleges, and 
 churches, their tendency is useful, indifferent, or injurious, 
 according to the nature of the services exacted. 
 
 It is a singularity which merits observation, that in general, 
 these foundations, these particular laws, which the individual 
 establishes by the indulgence of the sovereign, have been treated 
 ■with more respect than the public laws, which are immediately- 
 derived from the sovereign himself. When a legislator has 
 wished to tie up the hands of posterity, such a proceeding has 
 appeared absurd or futile. The obscurest individuails have arro- 
 gated that privilege, and no one has dared to attack it ! 
 
 It would seem that lands left to corporations, convents, and 
 churches, must necessarily decline in value. Indifferent towards 
 successors, who are not allied to him by blood, each transient 
 pro;^rietor wUl be apt to exhaust as much as he can a possession 
 which he enjoys only for life; and, in old age especially, to 
 neglect the necessary repairs. This sometimes happens. "We 
 must be just, however, to religious communities. They are oftener 
 distinguished for good than for bad economy. If their situation 
 inflames cupidity and avarice, it represses pride and prodigality. 
 If there are causes which nourish among them a spirit of selfish- 
 ness, there are others which combat that sentiment by creating 
 an esprit de corps, a warm attachment to the profession to which 
 they belong. 
 
 ' It is scarcely neoessary to tnection yubHc I^'^r^rty, — that '<£, 
 those things the use of which is public, such as roads, churches, 
 markets. To fulfil their end, it is necessary that their duration 
 should be indefinite, with provision, however, for permittEig 
 those successive changes which circumstances may require. 
 
' PEINClrLES 01' THE CIVIL CODE. 177 
 
 CHAPTEE III. 
 
 Title ly Succession. 
 
 Afteb the decease of an iadividual, hov ought his goods to be 
 disposed of ? 
 
 In framing a law of succession, the legislator ought to have 
 three objects in view : — 1st, Provision for the subsistence of the 
 rising generation ; 2nd, Prevention of disappointment ; 3rd, The 
 equalization of fortunes. 
 
 Man is not a solitary being. With a very small number of 
 exceptions, every man has about him a circle of companions, more- 
 or less extensive, who are united to him by the ties of kindred or 
 of marriage, by friendship or by services, and who share with him, 
 in fact, the enjoyment of those goods which »w?flw belong to him 
 exclusively. His fortune is commonly the sole fund of subsistence 
 on which many others depend. To prevent the calamities of which 
 they would be the victims, if death in taking away their friend 
 took from them at the same time the supplies which they draw 
 from his fortune, it is necessary to know who habitually enjoy 
 these supplies, and in what proportions. IN'ow, since these are 
 facts which it would be impossible to establish by direct proofs, 
 without becoming involved in embarrassing procedures and infinite 
 contests, it is necessary to resort to general presumptions, as the 
 only basis upon which a decision can be established. The share 
 which each survivor was accustomed to enjoy in the property of 
 the deceased may be presumed from the degree of affection which 
 ought to have subsisted between them ; and this degree of affection 
 may be presumed from nearness of relationship. 
 
 If relationship were the only consideration, the law of succession 
 would be very simple. In ihe first degree of relationship are all 
 those who are connected with you without any other person 
 intervening: your wife, or husband, your father, your mother, 
 and your children. In the second degree are those whose con- 
 nection with you demands the intervention of a single person, or 
 the joint intervention of two persons : your grandfathers, your 
 
■178 PHIIfCTPLES OP THE CITII, CODE. 
 
 grandmotliers, yoiir brotters, your sisters, and your grandcliildrep. 
 In the third degree are those wliose . relationship supposes two 
 intermediate generations : your great-grandfathers, your great- 
 grandmothers, your great-grandchildren, your uncles and aunts, 
 nephews and nieces. 
 
 But this arrangement, though quite perfect as respects simpli- 
 city and regularity, wiU not answer the political and moral ends 
 to he aimed at by the legislator. It does not correspond to the 
 degree of affection of which, if employed, it must be taken as a 
 presumptive proof ; and it will not accomplish the principal object, 
 which is to provide for the wants of the rising generation. Let 
 us leave, then, this genealogical arrangement, and adopt one 
 founded upon utility. It consists in always giving to the descend- 
 ing line, Jwwever long, a preference over the ascending and composite 
 
 StiU, it. must- happen that the presumptions; of affection or of 
 "wantr which serve as a foundation to these rules; will often fail 
 in practice ; and that, in consequence, the rules themselves will 
 iiot accomplish their end. But the power of making a vsdll offers, 
 as we shall see,, an efficacious remedy for the imperfections of the 
 general law ; and that is the principal reason for sanctioning such 
 a power. 
 
 Thesa are the general principles ; but how ought they to be 
 -applied in detail, when it is necessary to decide between several 
 ■claimants? ' • : 
 
 The model of a law will serve instead of a "great number of 
 ■discussions. 
 
 Aetiole I. ]ffo distinction between the sexes ; what is said of 
 me extends to the, other. The portion of the one shall le always 
 equal to that of the other. 
 
 Reason. — Good of equality. If there were any difference, it 
 ought to be in favour of the feebler — in favour of women — who 
 have more wants and fewer means of acquisition, or of employing 
 profitably what they possess. But the stronger have had all the 
 preferences. Why ? Because the stronger have made the laws. 
 
 Article II. After the husland's death, the widow shall retain 
 
PEINCIPLES OF THE CIVIL CODE. 179 
 
 half the common propefty ; unless same different arrangement was 
 
 made hy the marriagb contract.' 
 
 . Aeticle III. The other half shall he distributed among the 
 
 •children in egiidl proportions. 
 
 Reasons.-^l&t. Equality of affection on tte part of thte fatter. 
 ■2nd. Equality of co-'occupd,tion on the- part' of -the' cHldrem; ■ 3rd. 
 Equality of wants. 4tli; Etf&aMty of all imaginable reasons on 
 one side and the other. Differences of agie,' of temperament, of 
 ,talent> and of strength, may 'produce some differences in point of 
 (•wants ; hut it is . ho't i^ossibic for the law> tO • appreciate Ihem. 
 ■The father must provide fof them by the exercise of his right to 
 make a vdU. ■ •■ > '•' ■' ■ ' ••■ '•■<.' \'. 
 
 -y Aetmle IV. If a'cMM-dies'leforeMs father, learning children, 
 Ms share shall he, dveided among his ohild/Ten in equal proportions ; 
 and SO' of all descendants. "'■'■^' '•'' ' ' • > .. ', r. 
 
 " This- distribution by ^oclils' is prSfei'red ' ttf that by heads, for 
 'two 'reasons. 1st: To prevent disappointment. That the part 
 'of the eldest' should 'bei difninish^E by the birth' of ^Setty-bunger 
 child is a natural event,' to"V7hich Ins' expectatioii'vrall''C(!>nform 
 itself. But in- general, -flrhen' one of the' children begjis" to exer- 
 cise his reproductive faculty,' that of the father is almost at its 
 end. At that time the children 'suppose thfemselves arrived at 
 the point whe?re the diminution of their te^peetive portions ceases. 
 But if each grandson andgrandda'u^hfcerVere to produce the same 
 diminution which each son 'and daughter- had" produced, the 
 diminution would have no bounds. There wouldno longer be 
 toy certainty according to •Which' they could aTrakge their plan 
 of Kfci ■2nd. The' graudclhildren' havfe, 'as an' immediate resiaurce, 
 the property of their deceased feth'er. Their habit of c6M)ccupatibn, 
 detached from their graffd&thef,' must have been exercised -in 
 preferenefej if not exclusively, lipon^ the fund' of thfeil father's 
 industry: Add to thisy that they have in the property o'f •their 
 mother and her relations a tesburce, in which the- other- descend- 
 ants of their grandfather have no share.- ■ r.r. -..i:»t, 
 - AKTiGLte V. If there are no descendants, the -property shall go 
 in common to the father' and 'mother i ''■••■ ' • •> - ■■'' •Vi . 
 
 n2 
 
180 PEINCIPLES OF THE CIVIL CODE. 
 
 Why to descendants before all otters ? Ist. Superiority of 
 affection. Every other arrangement would be contrary to the 
 inclination of the father. "We love those better who depend 
 upon U3 than those upon whom we depend. It is sweeter to 
 govern than to obey. 2nd. Superiority of need. It is certain 
 that our children cannot exist without us, or some one who fills 
 our place. It is probable that our parents may exist without 
 us, as they did exist before us. 
 
 Why should the succession pass to the father and mother, 
 rather than to the brothers and sistfers ? 1st. The relationship 
 being more immediate, is a presumption of superior affection. 
 Sad. It is a recompense for services rendered, or rather an indem- 
 nity for the pains and expense of educating the child. The 
 relationship between me and my brother consists in our common 
 relationship to the same father and mother ; and the reason why 
 he is more dear to me than another companion with whom I have 
 passed an equal portioU of my life is, his being dearer to those 
 who have my first affections. It is not certain that I am indebted 
 to him for anything, but it is certain that I am indebted to them 
 for everything. Thus, whenever the stronger title of my own 
 children does not intervene, I owe compensations to my parents, 
 to which a brother can have no claim. 
 
 Akticle VI. Jff' one of the parents is dead, the share of the 
 deceased shall go to his or her descendants, in the same way as it 
 would have gone, had there been any, to the descendants of the 
 deceased child. 
 
 In poor families, whose only property is household furniture, 
 it will be better that the whole should go to the individual sur- 
 vivor, whether father or mother, with the condition of providing 
 for the support of the children. The expense of the sale and 
 the dispersion of the property would ruia the survivor, while the 
 parts, too small to serve as capital, would soon be dissipated. 
 
 Abticle YII. Failing such descendants, the whole property shall 
 go to the surviving parent. 
 
 Aeticle VIIL If both father and mother are dead, the pro- 
 perty, shall be divided as above among their descendants. 
 
PEINOIPLES OF IHE CIVIL CODE. .181 
 
 AETictE IX. But the part of the half-hlood shall he, only half 
 as great as the part of the whole-llood. 
 
 Reason. — Superiority of affection. Two ties attach me to my 
 brotter, but only one to my balf-brotber. 
 
 Article X. In defect of relations in these degrees, the property 
 shall go into the puhlie treasury. 
 
 Aeticle XI. Under condition, however, of distributing the 
 interest in the form of life annuities among all the relations in 
 the ascending line in equal shares. 
 
 Tbe tenth, and eleventh articles may be adopted or not, accord- 
 ing to the condition of the public revenue ; but I cannot dis- 
 cover any solid objection against this fiscal resource. It may be 
 said that the collateral relations who wiU be excluded by this 
 arrangement may be in want. But this is too casual an accident 
 to found a general rule upon. , They have, as a natural resource, 
 the property of their respective parents, and they do not form 
 their expectations or fix their plan of life upon this basis. On 
 the part even of an uncle, the expectation of inheriting from a 
 nephew can be but feeble ; and a positive law wiU be enough to 
 extinguish it vnthout violence, or to prevent it beir,g formed. 
 The uncle has not the titJes of the father and grandfather. , It 
 is true that, in case of their death, the uncle may have taken 
 their place, and acted as a father to his nephew. This is a 
 circumstance which merits the attention of the legislator. The 
 power of making a will would be a remedy for cases of this sort ; 
 but that means of obviating the inconveniences of the geiaeral 
 law would be unavailing when the nephew died at an age too 
 tender to allow the exercise of that power. If, then, it were 
 determined to soften this fiscal regulation, the first exception 
 should be in favour of the uncle, whether as regards the prin- 
 cipal, or only the interest of the'property. 
 
 AaTicLE XII. To effect a division among the heirs, the property 
 shall he sold at auction ; reserving to them the right of making 
 such other arrangement as they may think proper. 
 
 This is the only means of preventing a community of goods, 
 an arrangement the pernicious consequences of which wUl pre- 
 
182 PEINCIPLES OP THE CITIL CODE. 
 
 sently be pointed out. Such of the property as may have a 
 value of affection, will find its true price from the competition 
 of the heirs, and will turn to the common advantage, without 
 producing those disputes which occasion durable animosities in 
 families. 
 
 AmicLE XIII. Vhtil sale and, division he made, the whole pro- 
 perty shall be intrusted to the Jceepincf of the oldest male heir of full 
 age; reserving to the court to make other arrangements, through 
 apprehension of lad management, specified on the hearing of the ease. 
 
 "Women in general are less fit for affairs of money and business 
 than men. , But an individual woman may have a superior apti^ 
 tude;_if pointed, out by the general wish of the relations,^ she 
 ought to have the preference. 
 
 Akticle XIV. In defect of a male heir of full age, the property 
 shall ie intrusted to the guardian of the oldest 'male heir, reserving 
 a discretionary power as in the preceding article. 
 
 Aeticle XV. The succession which falls to the treasury, for want 
 of natViral heirs, shall also he sold at auction. 
 
 The .government is incapable of managing specific pi'operty to 
 advantage. Thei administration of such property belonging to a 
 government costs much, brings in little, and- is certain to undergo 
 a rapid deterioration. This is a truth which Adam Smith has 
 demonstrated. 
 
 This, project 6f a, law appears to be' simple, precise, and easy to 
 be coiriprehended ; it gives little room for fraud, chicanery, or 
 diversity of interpretation ; and finally, it is analogous to the 
 affections- of .the, human heart, to those habitual inclinations which 
 spring .frqm the social relations ; siiid therefore it is likely to con- 
 ciliate both the affections of those who judge by sentiment and 
 the esteem of those who appreciate reasons. 
 
 Those who accuse this plan of being too simple, and who declare' 
 that at this rate the law would no longer be a science, may find 
 wherewith to be satisfied, astonished, and delighted, in the laby- 
 rinth of the English common law of successions. 
 
 To give the reader an idea of the English common law on this 
 subject, it would be necessary to begin with a dictionary of new 
 
PBIIfCrPLES OF THE CIVH CODE. 183 
 
 words ; and presently, when they should discover the absurdities, 
 the subtilties, the cruelties, the frauds, with which that system 
 abounds, they would imagiue that I had written a satire, and that 
 I wished to insult a nation otherwise so justly renowned for its 
 wisdom. 
 
 It is to be observed, however, that the right of making a will 
 reduces this evil within tolerably narrow limits:- It is only the 
 sueeession to the property of intestates which is obliged to pass 
 through the crooked roads of the common law. Wills ia that 
 country may be- compared to arbitrary pardons, which correct the 
 severity of penal laws. 
 
 CHAPTEE IV. 
 
 Testaments, 
 
 1st. The law, not knowing individuals, cannot accommodate itselfi* 
 to the diversity of their wants. All that can be exacted from it 
 is to offer the best possible chance of satisfying those wants. It 
 is for each proprietor, who can and who ought to know theparti- 
 cular circumstances ia which those who depend upon him will be 
 placed at his death, to correct the imperfections of the law in all 
 those cases which it cannot foresee. The power of making a will 
 is an instrument intrusted to the hands of individuals, to prevent 
 private calamities. 
 
 2nd. The same power may be considered as an instrument of 
 authority, intrusted to individuals for the encouragement of virtue 
 in their families and the repression of vice. It is true that this 
 means maybe employed for the contrary purpose ; butj fortunately, 
 such cases are an exception. The interest of each member of a 
 family is, that the conduct of every other member should be con- 
 formable to virtue, that is, to general utility. The passions may 
 occasion accidental deviations ; but the law must be arranged in 
 conformity to the ordinary course of things. Virtue is the^ domi- 
 nant Regulator of' society ; even vicious parents are as jealous as 
 others of the honour and the reputation of their children. A man 
 
184 MtlNCIPLES OP THE CIVIL CODE. 
 
 little scnipulous in his own conduct would be shocked to have his 
 secret practices disclosed to his family ; at home he is still the 
 Jipostle of probity ; he disregards it in his own behaviour, but he 
 wishes it in those about him. In this point of view, every pro- 
 prietor is entitled to the confidence of the law. Clothed with the 
 power of making a will, which is a branch of penal and remu- 
 nerative legislation, he maybe considered as a magistrate appointed 
 to pr,eserve good order in that little state called a family. This 
 magistrate may be guilty of partiality and injustice ; and as he is 
 restrained in the exercise of his power neither by publicity nor 
 by responsibility, he would seem to be very Ukely to abuse it. 
 But that danger is more than counterbalanced by the ties of 
 interest and affection, which put his inclination in accord with his 
 duty. His natural attachment to his children and his relatives 
 is as secure a pledge for his good conduct as any that can be 
 obtained for that of the political magistrate ; to such a degree 
 that, all thiags considered, the authority of this non-commissioned 
 magistrate, besides being absolutely necessary to children of 
 tender age, will oftener be found salutary than hurtful, even to 
 adults. 
 
 3rd. The power of making a wOl is advantageous under 
 another aspect, as a means of governing — ^not for the good of 
 those who obey, as in the preceding article, but for the good of 
 him who commands. In this way- the power of the present 
 generation is extended over a portion of the future, and to a 
 certain extent the wealth of each proprietor is doubled. By 
 means of an order not payable tiU after his death, he procures for 
 himself an infinity of .advantages beyond what his actual means 
 would furnish.' By continuing the submission of children 
 beyond the term of minority, the indemnity for paternal cares is 
 increased, and' an additional assurance against ingratitude is 
 secured to the father; and though it would be agreeable to think 
 that such precautions are superfluous, yet when we recollect the 
 infijmities of old age, , we must be satisfied that it is necessary 
 not to deprive it of this counterpoise of factitious attractions. 
 In the rapid descent of life, every support on which man can 
 
PEINCIPIES OP THE CIVIL CODE. 185 
 
 lean should be left untouched, and it is -well that interest serve 
 as a monitor to duty. 
 
 Ingratitude on the part of children and contempt for old age 
 are not common vices in civilized society ; but we must recollect 
 that everywhere, more or less, the power of making a wiU exists. 
 Are these vices most frequent where this power is most limited ? 
 "We might decide the question by observing what passes in poor 
 families, where there is but little to give in legacies ; but even 
 that method of judging would be deceptive, for the influence of 
 this power, established in society by the laws, tends to form 
 general manners, and general manners thus formed determine the 
 sentiments of individuals. This power given to fathers renders 
 the paternal authority more respectable, and those fathers whose 
 indigence does not permit them to exercise it, unconsciously 
 profit by the general habit of submission to which it has given 
 rise. 
 
 But in mating the father a magistrate we must tate care not 
 to make him a tyrant. If children have their faults he may have 
 his, and though we give him the power of correction, it does not 
 follow that he should have the right to punish by starvation. 
 The institution called in Trance a legitime, by which each child 
 is protected against a total disinheritance, is a convenient medium 
 between domestic anarchy, and paternal tyranny. Even this pro- 
 vision the father should have the power of taking away, for 
 cau^p3 specified in the law and judicially proved. 
 
 There is stUl another question. In default of natural heirs, 
 shall the proprietor have the right of leaving his property to 
 whomsoever he chooses; either to distant relations or to strangers ? 
 In that case the fiscal resource spoken of in the preceding chapter 
 wUl be greatly diminished, it will apply only to the case of 
 intestates. Here the reasons of utiUty divide. "We must 
 endeavour to find some middle course. 
 
 It may be said that, in default of kin, the services of strangers 
 are necessary to a man, and his 'attachment to' them almost the 
 same as to relations. He should have the means of cultivating 
 the hopes and rewarding the care of' a faithful servant, and of 
 
186 PEtlfCIPLES OP THE CITIL CODE. 
 
 softening the regrets of a friend who has watched at his side, not 
 to speak of the woman who, but for the omission of a ceremony, 
 would be called his widow, and the orphans whom all the world 
 but the legislator regard as his children. 
 
 Again, if to enrich the public treasury you deprive a man of 
 the power of leaving his property to his friends, do you not force 
 him to spend it all upon himself? If he has no control over his 
 capital from the moment of his death, he wiU be tempted to con- 
 vert his property into a life annuity. It is to encourage him to 
 be a spendthrift,, and almost to make. a law against economy. 
 
 These reasons are, doubtless, more weighty than any consi- 
 deration of gain to the public treasury. We ought to leave the 
 proprietor who has no near relations the light of disposing of at 
 least half his property by will, while the other half is reserved 
 for the public ; and to be contented with less would, perhaps, 
 in this case, be a means of getting more. Besides, it is a matter 
 of very great importance not tp attack the principle which allows 
 every one to dispose of his property after death ; and not to create 
 a, class of proprietors who will regard themselves as inferior to 
 others, on account of the legal incapacity attached to one-half of 
 their fortune. 
 
 All that has been said of alienations between the living, applies 
 also to testaments. • On most of those points we shall be Instructed 
 by the conformity between contracts and testaments, and some- 
 times by contrast. 
 
 The same causes of nullity which apply to alienations between 
 the living apply to testaments, except that in the place ot^ con- 
 cealment on the part of the receiver, it is necessary to substitute 
 erroneous suppodtion on the part of the testator. For example; 
 I leave a certain legacy to Titius, who is married to my daughter, 
 believing that marriage to be lawful;, and not knowing the bad 
 faith of Titius, who, before marrying my daughter, had contracted 
 another marriage, still subsisting. 
 
 Testaments are exposed to an' unfortunate dilemma. Do we 
 admit their validity when made upon a death-bed ? The testator 
 is exposed to coercion and to fraud. Do we exact formalities 
 
PEINCIPLES or THE CIVIL CODE. 187 
 
 incompatible with. tUs indulgence ? We deprive the dying man 
 of his power over the conduct of others, at the very moment when 
 he needs it most. Barbarous heirs may torment him, in order to 
 hasten or make sure of the advantage of a will executed in form. 
 A dying man, who has no power to give or to tate away, is no 
 longer to be feared. A great many details wiU be necessary to 
 reduce all these opposite dangers to their lowest amount. 
 
 CHAPTER T. 
 
 Bights to Services. Methods of aequiring them. 
 
 Aftee things, services remain to be distributed, a kind of property 
 sometimes confounded with things, and sometimes appearing 
 ■ander a distinct form. 
 
 There are as many kinds of services as there are Ways in which 
 man can be useful to man, either in procuring him some good, or 
 preserving him from some evil. 
 
 In that exchange of services which constitute social intercourse 
 some services are free, and others are compulsive. Those which 
 are exacted by the laws constitute rights and obligations. If I 
 have a right' to the services of aiiotheir, that other is in a state of 
 ohUgation, with respect to me ; these two terms are correlative. 
 
 'At first, aU services Were free. It was only by degrees that 
 laws intervened to convert the more i-iSiportant into positive rights. 
 It was thus that the institution of marriage changed into an ob- 
 ligation legally binding the hitherto voluntary connection between 
 husband and wife, father and childi In the same Way, the law, 
 in certain states, has converted into an obligation the maintenance' 
 of the poor, — a duty which yi3t remains, among the greater part 
 of nations, entirely voluntary: These ^o/«W(;a? duties, compared' 
 to duties purely social, are like inclosures in a vast common, 
 where a particular kind of cultivation is carried on with precautions 
 which insure success. • The same plant might grow on the com- 
 mon, and might even be protected by certain conventions ; but it 
 would always be exposed to more hazards than in the par-- 
 
188 PEIKCIPIES OF THE CITIL CODE. 
 
 ticular iaclosure traced by the law, and protected by tbe public 
 force. 
 
 Yet, whatever the legislator may do, there is a great number 
 of services upon which he has no hold. It is not possible to 
 order them, because it is not possible to define them, or because 
 constraint would change their nature, and make them an evil. 
 If it were attempted to enforce them bylaw, nn apparatus of 
 police and of penalties would be necessary, which would spread 
 terror through society. Besides, the law could not act against 
 the actual obstacles opposed to it; it could not put dormant 
 powers into activity ; it could not create that energy, that super- 
 abundance of zeal, which surmounts difficulties, and goes a thou- 
 sand times further than commands. 
 
 The imperfection of law, in this respe'ct, is corrected by a kind 
 of supplementary law ; that is, by the moral or social code — a code 
 which is not "written, which exists only in opinion, in manners, 
 and in habits, and which begins where the legislative code finishes. 
 The duties which it prescribes, the services which it imposes, 
 under the names of equity, patriotism, courage, humaiiity, gene- 
 rosity, honour, and disinterestedness, do not directly borrow the 
 aid of the laws, but derive their force from other sanctions, 
 founded upon punishments and rewards. As the duties of this 
 secondary code have not the imprint of the law, their fulfilment 
 has more ielat; it is more meritorious ; and a superior degree of 
 honour attached to their performance happily makes up for their 
 deficiency in positive force. After this digression upon morals, 
 let us return to legislation. 
 
 The kind of service which is most important consists in giving 
 up some good in favour of another. 
 
 The kind of good which plays the greatest part in civilized 
 society is money, — a representative of value which is almost 
 universal. It thus happens that the consideration of services is 
 often confounded with that of things. 
 
 There are cases where the service is exacted for the benefit of 
 him who .commands ; such is the state of a master in reference to 
 his servant. 
 
PfU.NCIPI.E3 OP THE CITIL CODE. 189 
 
 There are cases in ■which, the service is exacted for the advan- 
 tage of him who obeys ; such is the condition of the ward iu 
 reference to his guardian. 
 
 These two correlative states are the foundation of all the others. 
 The rights which belong to them are the elements of which all the 
 others are composed. The father ought to be, in some respects, 
 the guardian, in others the master of the child; the husband 
 ought to be, in some respects, the guardian, in others the master 
 of the wife. These states are capable of a constant and indefinite 
 duration, and form domestic society. The rights which ought to 
 be attached to them are discussed in subsequent chapters. 
 
 The public services of the magistrate and the citizen constitute 
 other classes of obligations, of which the estabKshment belongs to 
 the constitutional code. 
 
 But beside these constant relations, there are transient and 
 occasional relations, dh. which the law may exact the services of 
 one individual in favour of another. 
 
 The means of acquiring rights to services — that is, the causes 
 which determine the legislator to create obligations — ^may be 
 referred to three heads : — l&i, Superior need; 2nd, Anterior ser- 
 vice ; 3rd, Pact or Agreement. 
 
 I. SiTPEKiOK Need. — That is, a need of the service greater than the 
 inconvenience of rendering it. 
 
 Every individual has, as a constant occupation, the care of his 
 own happiness — an occupation not less lawful than necessary ; 
 for suppose this principle could be reversed, and that the love of 
 others should tate an ascendancy over the love of self, what a 
 ridiculous, what a fatal confusion would be the consequence ! How- 
 ever, there are many occasions when we can make a considerable 
 addition to the well-being of others by a slight and almost imper- 
 ceptible sacrifice. In such circumstances, to do what depends upon 
 us to prevent the evil about to faU upon another, is a service which 
 the law may exact ; and the omission of this service, in cases where 
 the law might see fit to exact it; would form a sort of offence, which 
 might be called negative, to distinguish it from positive offences, 
 which consist in being the active and instrumental cause of evil. 
 
190 PEINCIPLES OF THE CIVIL CODE. 
 
 But, to make efforts, however slight, in the service of another, 
 may be an evil; to he obliged to make such efforts certainly is 
 one, for all restraint is evil. Therefore, to justify exacting from. 
 you a service in' favour of me, the evil of not receiving the service 
 ought to be so great, and the evil of rendering it so small, that 
 there can be no room for hesitation as to the expediency of pro- 
 ducing the one, for the sake of avoiding the other. There are no 
 means of fixing precise limits ; all must depend on the. circum' 
 stances in which the individuals interested are placed, and we 
 must leave to the judge the power of deciding upon individual 
 cases as they occur. 
 
 The good Samaritan, by relieving the wounded traveller, saved 
 his life. It was a noble action, a virtuous deed— nay, amoral 
 duty. Can such actions be made a legal duty ? Can we ordain 
 them by a general law? No ; hot unless we limit that law by 
 exceptions more or less. vague. jIt would, be very necessary to 
 establish in such a law a dispensation in favour of the. isurgeon 
 waited for by many woimded^menih greatmeed of his, serviced — 
 of the officer whoihastens, to his post to repel the enemy: — of the 
 father who is jnishing to. the succiaut of his' child. . . . ; ^ 
 
 This principle of superior need is the foundation of many oblir 
 gations. The duties required.of a father' to, his children may be 
 biu'densome ; but that evil is nothing when compared to. the €vil 
 bf -the children being abandoned. The duty of defending the state 
 m^y be more burdensome yet ; but iinless the state i&defendedy 
 it cannot exist. . If the taxes are not paid, the government is 
 dissolved. If the publicfunctions are not exercised,, a career is 
 opened to every disorder and to every crime. 
 
 The obiigatiohi of rendering*.' the service ought to fall tipon.a 
 particular individual,>by,:reason ■ of his peculiar, position/which 
 gives him, more- than 'any other •personj.the;^ower or the incli- 
 nation to perform.it. ' It is for this reason that.im selecting guard- 
 ians for , orphan- children, the choice falls, upon relations or 
 friends, to whom the duty must be less burdensome than to a 
 stranger. , 
 
 II. Anteeiok Seevice. — A servicerekdered, — in consideration 
 
PEINCrPIiES OF THE CITII CODE. 191 
 
 of which there is exacted from him who received the henefit a com- 
 pensation, an equivalent in fa/oour of him who conferred it. 
 
 This case is more simple ; it is only necessary to ascertain the 
 value of a benefit already received, and to assign a compensation 
 for it. The judge will not need so much latitude of discretion. 
 
 A surgeon has bestowed his services upon a sick man who had 
 lost his senses, and who was not in a condition to ask for assist- 
 ance, A depositary, though not requested to do so, has employed 
 his labour, or has made pecuniary advances for the preservation 
 of a deposit. A man has exposed himself in a fire to save valu- 
 able property, or to rescue persons in danger. The effects of a 
 passenger have been thrown overboard to lighten the ship, and to 
 preserve the rest of the cargo. In all these cases, and in a thou- 
 sand others which might be cited, the laws ought to insure a 
 recompense equivalent to the value of the service. 
 
 This title to indemnity is founded upon the best reasons. 
 Grant it, and he by whom it is famished wiU still be a gainer ; 
 refase it, and you leave him who has done the service in a con- 
 dition of loss. 
 
 Such a regulation is less for the benefit of him who receives 
 the compensation, than for the benefit of those who need the 
 service. It is a promise of indemnity made beforehand to every 
 man who may have the power of rendering a burdensome service, 
 in order that a prudent regard to his own personal interest may 
 not come into opposition with his benevolence. "Who can say 
 how many evils might be prevented by such a precaution? In 
 how many cases may not the duty of prudence restrain the wishes 
 of benevolence ? Is it not wise for the legislator, as far as pos- 
 sible, to reconcile these motives ? It is said that ingratitude' was 
 punished at Athens as an infidelity injurious to the commerce of 
 benefits. I do not propose to punish ingratitude ; but as far as 
 possible to prevent it. > If the man to whom you have rendered 
 a service is ungrateful,— no matter ; the law does not count upon 
 virtue ; it assures you a compensation, and ia important cases' it 
 will elevate that compensation to the level of reward. 
 Eeward! that is the true means of obtaining services. In 
 
192 PEINCIPLES OF THE CIVIL CODE. 
 
 comparison, punishment is but a feeble instrument. To punish 
 an omission of service vre must first be sure that the individual 
 had the power to render it, and that he has no excuse for not 
 having done so. All this requires a process of investigation, 
 difficult and doubtful. Besides, if men act from the fear of 
 punishment, nothing vrill be done except what is absolutely 
 necessary to avoid it ; but the hope of reward develops an un- 
 known strength; it triumphs over real obstacles, and brings 
 forth prodigies of zeal and ardour in cases where threats would 
 produce only an unwilling submission. 
 
 Three precautions must be observed in arranging the interests 
 of the two parties. First, — to prevent a hypocritical generosity 
 from converting itseK into tyranny, and exacting the price of a ' 
 service which would not have been accepted had it not been sup- 
 posed disinterested. Secondly, -^not to authorize a mercenary 
 zeal to snatch rewards for services which the person obliged 
 might have rendered to himself, or have obtained elsewhere at a 
 less cost. Thirdly, — not to suffer a man to be overwhelmed by 
 a crowd of helpers, who cannot be fully indemnified without 
 counterbalancing by an equivalent loss the whole advantage of 
 the service. 
 
 Anterior service justifies many classes of obligations. On this 
 is founded the right of fathers over their children. When in the 
 order of nature the strength of ripening age has succeeded to the 
 feebleness of infancy, the need of receiving ceases, and the duty 
 of restitution begins. Upon this also is founded the right of the 
 wife to the continuance of the union after the period when time 
 has effaced the attractions which were its first motive. 
 
 Establishments at the public expense for those who have 
 served the state rest upon the same principle, — reward for past 
 services as a means of creating future ones. 
 
 III. JPact or AeEEEMENT. — Tlie intervention of a promise 
 hetween two persons, with the understanding that a legal olUgation 
 attaches to it. 
 
 Everything that has been said of consent, in relation to the 
 distribution of property, applies to consent as respects the inter- 
 
PKINCIPLES OP THE CIVIL CODl!. 193 
 
 change of services. There are the same reasons for sanctioning 
 this interchange of services as for sanctioning the interchange of 
 property. Both rest on the same fundamental axiom, that' every 
 alienation imports an advantage. Bargains are not made except 
 from the motive of utility. 
 
 The same reasons which annul consent in the one case, annul 
 it in the other — Concealment ; fraud ; coercion ; subornation ; 
 erroneous idea of legal obligation ; erroneous idea of value ; 
 incapacity ; pernicious tendency of the bargain, though •without 
 fault in the contracting parties. 
 
 "We need not enlarge upon those subsequent causes -which 
 produce the dissolution of agreements ; — lat, Accomplishment ; 
 2nd, Compensation ; 3rd, Express or tacit remission ; 4th, Lapse 
 of time; 5th, Physical impossihility ; 6th, Intervention of a 
 superior inconvenience. In all these cases, the reasons which 
 caused the agreement to be sanctioned exist no longer ; but the 
 two latter relate only to the literal or specific accomplishment of 
 the bargain, and may stiU leave room for compensation. If in a 
 mutual bargain one of the parties only has fulfilled his part, or if 
 his part be the more nearly performed, a compensation from the 
 other wiU be necessary to re-establish the equilibrium. 
 
 It is enough to point out the principles without dwelling on 
 the details. Particular arrangeifients must vary according to 
 circumstances. However, if we establish firmly a small number 
 of rules, these particular arrangements will not interfere with 
 each other, and wUl all be arranged in the same spirit. These 
 rules are so very simple that they need no development. 
 
 1st. Avoid producing disappointment. 
 
 2nd. "WTien a portion of that evil is inevitable, diminish it 
 as much as possible by dividing the loss among the parties 
 interested in proportion to their means. 
 
 3rd. Take care in the distribution to throw the greater part of 
 the loss upon him who, by attention, might have prevented the 
 evil, so as to punish his negligence. 
 
 4th. Avoid especially producing an accidental evil greater than 
 disappointment. 
 
19.4 PEINCIPLES OF THE CITIL CODE. 
 
 General Observation. — It is tlius that the -whole theory of 
 obligations may be made to rest upon the basis of utility. "We 
 have built the whole of this vast edifice upon three principles — 
 superior need, anterior service, pact or agreement. "Who would 
 have believed that to arrive at principles so simple and so familiar, 
 it would have been nBcessary to open a new road ? Consult those 
 masters of the science, Grotius, Puffendorf, Burlamaque, "Vatel, 
 Montesquieu himself, Locke, Eousseau, and the crowd of com- 
 mentators. "When they wish to lay open the origin of obligations, 
 they tell you of a natural right, of a law anterior to man, of the 
 Divine law, of conscience, of a social contract, of a tacit contract, 
 of a quasi contract, &c., &c. I know that these teums are not 
 incompatible with the true principle, because all of them, by 
 explanations more or less forced, may be made to signify good 
 and evil. But this oblique and rotmdabout process involves uncer- ' 
 tainty and embarrassment, and leads to interminable disputes. 
 
 They have not perceived that the pact, the contract of which 
 they tell us, strictly speaking, is not a reason in itself; and that 
 it wants a basis, an original and independent reason, on which to 
 rest. The pact serves to prove the existence of a mutual ad- 
 vantage on the part of the contractors. It is this reason of utility 
 which gives the contract all its force ; thereby it is tliat the cases 
 are distinguished in which a contract ought to be confirmed, as 
 well as those in which it ought to be annulled. If a contract 
 were a reason of itself, it ought always to have the same effect. 
 If a pernicious tendency makes it void, it must be a useful 
 tendency which makes it valid. 
 
 CHAPTER VI. 
 
 Community/ of Goods, or Tenancy %n common. Its Inconveniences. 
 
 There is no arrangement more contrary to the principle of utility 
 than community of goods ; especially that kind of indeterminate 
 community where the whole belongs to each of the partners. 
 1st. It is the source of never-ending discord. Instead of being 
 
PEINCIPLES OF IHE CIVXL CODE. 195 
 
 a stats of satisfaction and enjoyment for all interested, it is a 
 state of discontent and disappointment 
 
 2nd. This undivided property always loses a great part of its' 
 value for all the partners. Subject on the one hand to all kinds 
 of depredations, because it is not under the protection of indi- 
 vidual interest, on the other it receives no repairs or improve- 
 ments. Shall I risk an expense of which the burden, will be 
 certain, and which will fall entirely upon me, while the benefit 
 of it will be precarious and divided ? 
 
 3rd. The apparent equality of this arrangement only serves to 
 cover a real inequality. The strong abuse their strength with 
 impunity ; and the rich grow richer, at the expense of the poor. 
 The community of goods calls to mind that sort of monster which 
 is sometimes seen to exist, --^beasts joined together back to back,; 
 in such cases, the stronger always carries off the weaker. 
 
 The question is not here of the community, of goods between 
 husband and wife. Called to live together, to cultivate their 
 interests together, and to feel, a, mutual concern for the interests 
 of their children, they ought to enjoy in common a fortune often 
 acquired, and always kept by common cares. Besides, if their 
 wills conflict, the dispute -will not be lasting ; the. law confers 
 upon the husband the right to decide . 
 
 Nor is the question here of common property among partners, 
 in trade. That tenancy in common is confined merely to acqui- 
 sition; it has nothing to do with enjoyment. l^Tow, as-concemsi 
 acquisition, the partners have but one and the same interest.. 
 "When the gains are to be enjoyed, they are divided, and each, 
 partner becomes independent of the others. Besides, associates in 
 commerce are always few in number ; they select each other, and 
 separate at will. It is precisely the contrary with joint pro- 
 prietors of land. 
 
 In England, one of the greatest and best established improve.- 
 ments is the division of commons. In passing through the lands 
 which have undergone that happy change, we are enchanted as 
 by the sight of a new colony. .Harvests, flocks, smiling habita-. 
 tions, have succeeded to the dull sterility of a desert. Happy 
 
 2 
 
196 PEINCIPIES OP THE CIVIL CODE. 
 
 conquests of peaceful industry ! If oUe aggrandizement, wHch 
 inspires no alarms, and provokes no enemies ! But who would 
 believe that in a country where agricidture is so highly estimated, 
 miUions of acres of productive land are still abandoned to the 
 wild state of common tenancy ? A short time since the govern- 
 ment, desirous of knowing the true condition of its territory, 
 caused an examination to be made in every county, which has 
 brought to light a truth so interesting and so calculated to pro- 
 duce important consequences. 
 
 The inconveniences of tenancy in common, except in accidental 
 cases, do not apply to the case of sermtudes, — that is, to rights 
 of partial property exercised over immoveables, such as a right 
 of passage, or a right to draw water. These rights are in general 
 limited ; the value lost by the subject property is not equal to 
 the value acquired by the property to which the right attaches ; 
 or, in other terms, the inconvenience to the former is not so great 
 as the conveniency to the latter. 
 
 In England, land which, being freehold, is worth thirty times 
 the annual rent, being copyhold, is worth but two-thirds as much. 
 The reason is, that in the latter case a lord of the manor pos- 
 sesses certain rights which establish a kind of common tenancy 
 between him and the principal proprietor. But it is not to be 
 supposed that what is lost by the copyholder is gained by the 
 lord ; for the greater part of it faUs into the hands of agents 
 and attorneys, and is consumed in useless formalities and minute 
 vexations. These are the remnants of the feudal system. 
 
 "It is a fine spectacle," says Montesquieu, "that of the 
 feudal laws," — and afterwards he compares them to an ancient and 
 
 * There are ciroumstaBces which justify exceptions to general rules. 
 The citizens of the smaU Swiss cantons, for example, possess the greater 
 part of their lands, to wit, the High Alps, in common. It may be that 
 this arrangement is the only one convenient for pasturages which are 
 practicable only a part of the year. It may be, too, that this method of 
 holding their lands forms the necessary basis of a constitution purely 
 democratic, well adapted to the condition of a little community, shut up 
 in an inclosure of mountains. 
 
PRINCIPLES OP THE CIVIL CODE. 197 
 
 majestic oak. Let us rather compare them to that fatal tree 
 whose sap is poisonoTis, and whose shade is destructive. That 
 imfortunate system has produced in modern laws a confusion and 
 complexity from which it is very diflcult to deliver them ; for 
 being everywhere interlaced with property, it needs much 
 management to get rid of feudal absurdities, without shaMngthe 
 security of property itself. 
 
 CHAPTEE VII. 
 
 Distribution of Loss. 
 
 Things make one branch of the objects of acquisition; services 
 the other. After having treated of the different methods of ac- 
 quiring and alienating these two objects, the analogy between 
 gain and loss would seem.to indicate, as the next point of inquiry, 
 the different metheds of distributing the losses to which possessions 
 are exposed. 
 
 This task will not detain us long. Has a thing been destroyed, 
 damaged, or lost ? If the proprietor is known, the loss falls upon 
 him ; if he is not known, it falls upon nobody. It is, in fact, no 
 loss. The question whether the loss shall be transferred to some 
 other person than the proprietor, — that is, whether in any case a 
 satisfaction shall be allowed him, — is a matter which will be dis- 
 cussed in that part of this work which treats of the Penal CodCi 
 I shall conifine myself here to a single example, which will serve 
 to indicate principles. 
 
 When the seller and buyer of an article of merchandise are at 
 a distance apart, the article must pass through a greater or less 
 number of intermediate hands. This transport is by land, by sea, 
 or by internal navigation ; the merchandise may be destroyed, 
 damaged, or lost ; perhaps it does not arrive at its destination, or 
 it does not come there in the state in which it ought to be. Upon 
 whom shall the loss fall — the buyer or the seller? I say the 
 seller, reserving his claim against the intermediate agents. The 
 seller, by care, may contribute to the safety of the merchandise ; 
 
198 PEEsrcrPLES of the cith, code. 
 
 he can ctoose th.e moment and tlie manner of sending it, and take 
 tte precautions on which, in case of loss, the acquisition of evidence 
 depends. ,A11 this ■would be easier to a merchant, who makes a 
 business of selling, than to an individual who buys. It is only 
 by accident that the care of such a buyer can contribute in any 
 way to the safe arrival of the goods. The reason of this decision 
 is a superior preventive power ; it is founded upon the principle 
 of security. 
 
 Particular situations may show the necessity of establishing 
 exceptions to this general rule. For a yet stronger reason, in- 
 dividuals may except themselves from it by agreements made 
 between themselves. I only indicate principles. This is not the 
 place for their application. 
 
199 
 
 PART THIED. 
 
 EIGHTS AND OBLIGATIONS ATTACHED TO 
 SEVERAL PRIVATE CONDITIONS. 
 
 INTRODUCTION. 
 
 /We now proceed to, consider more in detail, the rights and obliga- 
 tions vHcIi the law. ought to, attach to theidifferent states which 
 compose the domestic or -private condition. These states may be 
 resolved into. four.:, those rqf master and servant; guardian, and 
 ward; father and child; husband and wife. . . , •- , ^ 
 
 ;If wefgllqwed the historical or natural .order of these relations, 
 the last in the catalogue would becomeitbe first. ,But, to avoid 
 repetitions, it is better; to begin; with the- simplest. ^vThe rights 
 ,and obligations of a father, audi a husband are composed of the 
 rights and obligations of a master and a. guardian; the two 
 former states are the eleinents. of the two latter. v 
 
 CHAPTEE I. 
 
 Master , .mi , $erxmt. , • ^ 
 
 Aside from the. question of slavery; there is not fauch to be said 
 as to the condition of mister, and the correlative conditions created 
 by the different Mndsi of, ,sermnts. .All these conditions are a 
 matter of contract. , It belongs to the parties interested to arrange 
 them according to their own convenience. .0 
 
200 PEINCIPLES OP THE CrPIL CODE. 
 
 The condjtioa of master, to which the condition of apprentice 
 corresponds, is a mixed condition. The master of an apprentice 
 is at the same time a master and a guardian : a guardian as 
 respects the art he teaches, a master as regards the profit he 
 derives. 
 
 The work which the apprentice does, after the value of his 
 lahour is worth more than the expense of maintenance and instruc- 
 tion, is the salary or reward of the master for his anterior ex- 
 penses. 
 
 This compensation ought naturally to he greater or less accord- 
 ing to the difS.culty of the art. Some arts may be learned in 
 seven days ; it is possible that some others may require seven 
 years. Competition will best regulate the price of these mutual 
 services, as of aU other objects of commerce ; and here, as else- 
 where, industry should find its just reward. 
 
 But the greater part of governments have not adopted this 
 system of liberty. They have desired to introduce what they call 
 order into employments ; that is, out of a mere passion for regu- 
 lating, they have substituted an artificial for a natural arrange- 
 ment. Intermeddling in this way with a business which they do 
 not understand, they have been led by a false notion of uniformity 
 to apply the same rule to things which have no resemblance. 
 Thus the ministers of Elizabeth fixed the same term of seven 
 years as the period of apprenticeship for the simplest as well as 
 for the most difiicult arts. 
 
 This mania for regulation conceals itself under the pretence of 
 a desire to perfect the arts, to prevent workmen from being un- 
 skilful, or to guard the credit and honour of the national manu- 
 factures. But there is a simple and natural means of accomplish- 
 ing these objects. It is, to leave everybody a perfect liberty of 
 choosing the good and rejecting the bad, of being governed in 
 their preferences by merit; and to excite the emulation of artists 
 by the freedom of competition. But no ; the public must be sup- 
 posed incapable of judging, and the work must be regarded as 
 good if the workman has wrought at the trade a certain number 
 of years. 
 
PBINCIPLES OP THE CIVIL CODE, 201 
 
 An artist must not be asked if lie understands Ms business, but 
 whether he has served a regular apprenticeship. For, if the work 
 is to be judged by its merits, we may as well allow every one to 
 work at his own risk. According to that system, some would be 
 masters who had never been apprentices, and others would be 
 apprentices all their lives. 
 
 CHAPTEE II. 
 
 Of Slavery. 
 
 "When servitude becomes a condition, and when the obligation to 
 continue in that condition, with respect to a certain master, or to 
 others who may derive a title from him, embraces the entire life 
 of the servant, that condition is slavery. 
 
 Slavery is susceptible of many modifications, according to the 
 fixed amount, more or less exact, of the services which may be 
 demanded, and g,ccording to the coercive means, the use of which 
 is permitted. There was a great difference in the state of a slave 
 at Athens and at Lacedsemon ; there is more yet between that of 
 a Russian serf and a negro in the colonies. But whatever may be 
 the limits or the means of authority, if the obligation of serving 
 is unlimited in point of time, I still call it slavery. To draw a 
 line of separation between servitude and liberty, we must start 
 from some point ; and that above assumed seems to be the most 
 salient and the easiestto fix. 
 
 This distinction drawn from perpetuity is so much the more 
 essential, because, wherever such perpetuity is found, it weakens, 
 it enervates, it renders extremely precarious the wisest precau- 
 tions for mitigating the exercise of authority. A power, not 
 limited as regards time, can hardly be limited as regards any- 
 thing else. If we consider, on the one side, the facility with 
 which the master may aggravate the yoke, little by little, how 
 he can exact with rigour the services that are due, extend his 
 pretensions under different pretexts, and spy out occasions to 
 torment an insolent servant, who dares refuse to render services 
 
202 PlilS-CIPLES OF THE CIVIL CODE. 
 
 ■wtich ]io does not owe ; if we consider, on the other side, how 
 difficult it is for slaxes to demand or to obtain legal protection, 
 how much more vexatious their domestic situation becomes after 
 a public breach with their mastet', and how they will be driven 
 to captivate him by an unlimited submission, rather than to 
 irritate him by refusals, — we shall soon see that the project of 
 limiting slavery by law is much easier to form than to execute ; 
 -that a fixed amount of services is a very feeble means of soften- 
 ing the lot of slavery ; that under the best laws for that purpose 
 only the most crying infractions wiU be punished, while the 
 ordinary course of domestic rigours 'will outbrave every tribunal. 
 I do not say that on this- acoeunt slaves ought to be abandoned 
 to the absolute p^ower of a master, and that the protection of laws 
 should not be extended to them, because that protection is in- 
 sufficient. But it is necessary to sh<<w' the' evil inherent in th6 
 verynature of the thing ; to wit, the impossibility of submitting 
 to a legal restraint the authority of a master over his slaves, so 
 as to prevent him, if so disposed, from abusing his power. ' 
 
 That- slavery is agreeable to the masters, does not admit of a 
 doubt ; since nothing is wanting but wiH on -their part to bring 
 it to an instant tennination; • That it is disagreeable 'to the slaves; 
 is a fact not less certain, since "they are never 'kept in that condi- 
 tion but by constraint. {No one who- is free wishes to become a 
 slave, and there is no slave who does not wish to 'be free. 
 
 It is absurd to reason on the happiness of men, excerpt irom 
 their own desires, and their own sensations. It is absurd to 
 attempt showing, by calculations, that a: iilan ought to be happy, 
 when he is actually miserable ; and that a condition into which 
 no one wishes to enter, and from which everybody wishss to 
 escape, is a condition good in itself, and adapted to human nature. 
 I can well believe that the difference between liberty and servi- 
 tude is not so great as it appears to ardent and prejudiced minds. 
 The habit of evil, and, for a stronger reason, the ignorance of 
 anything better, take away much of the interval which separates 
 two conditions, at the first glance, so opposite. But these reason- 
 ings of probability upon the happiness of slaves are quite super- 
 
PEINCIPIES OP IHB CIVIL CODE. 203 
 
 fluouR, since we have complete proof that tliis condition is never 
 embraced by choice, and that, on the contrary, it is always an 
 object of aversion. 
 
 Slavery has been compared to the condition of a schoolboy 
 prolonged through life ; and it is added, that a great many 
 people think the time passed at school the happiest part of their 
 existence. 
 
 The parallel is just only in one point. The circumstance which 
 is common to these two states is subjection ; but subjection is 
 very far from being the circumstance which makes the happiness 
 of a schoolboy. What makes him happy is, a freshness of mind 
 which gives to all impressions the charm of novelty, lively and 
 boisterous pleasures with companions of the same age, contrasted 
 with the solitude and seriousness of the paternal dwelling. And 
 after aU, how maiiy schoolboys are there who are not anxious to 
 see their pupilage ended ?. "Which of them desires to be a school- 
 boy for life? 
 
 , Be this as it may, if slavery were established in such a pro- 
 portion that there was one slave for one master, possibly! I might 
 .hesitate before, pronouncing upon the balance between the ad- 
 vantage of the one and the disadvantage of the other. It might 
 be possible, all things considered, that the sum of good in this 
 arrangement would be, almost equal to the sum of evil. But 
 things cannot be so arranged. Where slavery is once established, 
 it presently bficoines the lot of the greater number. A master 
 counts his slaves, like his flocks, by hundreds, thousands, tens of 
 thousands. The advantages are on the side of one, the disad- 
 vantages on the side of a multitude. Though the evil of servitude 
 were not great in itself, the extent of that evil would be sufficient 
 to render it very considerable. Generally speaking, and aside 
 from every other consideration, there is no room at all for 
 hesitating between the loss which emancipation would bring 
 upon the masters, and the gain which it would confer upon the 
 slaves. 
 
 Another very strong argument against slavery is drawn from 
 its influence upon the wealth and power of nations. A freeman 
 
204 PEINCIPLES OF THE CIVIL CODE. 
 
 prodilces more tlian a slave. If the slaves of a master were set 
 at liberty, that master would, doubtless, lose a part of his pro- 
 perty ; but the slaves taken together would not only possess aU. 
 that he loses, but more too. ITow happiness necessarily increases 
 with abundance; and the public power increases iu the same 
 proportion. 
 
 Two circumstances combine to diminish the produce of slaves : 
 the absence of the stimulus of reward, and the insecurity of their 
 condition. 
 
 It is easy to see that the fear of chastisement is not well 
 adapted to extract from a labojirer all the industry of which he 
 is capable, all the values he can furnish. Fear rather leads him 
 to conceal his power than to show it ; rather to sink beneath his 
 true level than to rise above it. 
 
 He will bring a punishment upon himself by works of supere- 
 rogation ; by displaying his ability he will only cause the standard 
 of his ordinary duty to be raised. Not only the slave produces 
 less; he consumes more, — not in the way of enjoyment, but by 
 waste, piUage, and bad economy. What does he care for interests 
 not his own ? All the labour he can save himself is a pure gain ; 
 what he suffers to perish is a loss only to his master. Why 
 should he invent new means to do more, or to do better ? To 
 improve, one must think; and thinking is a trouble not taken 
 without a motive. The man who is sunk into a mere labouring 
 animal never rises above a blind routine ; and generations succeed 
 each other without any progress. 
 
 It is true that a master who understands his own interest will 
 not dispute with his slaves the little profits which their industry 
 may occasionally procure. He knows their prosperity to be his 
 own, and that to offer them the inducement of an immediate reward 
 is the surest way to animate them to labour. But this precarious 
 favour, dependent upon the uncertain disposition of a master, 
 does not inspire that confidence which carries one's views to the 
 future, which shows in daily economy the foundation of future 
 wealth, and which extends the care of fortune to posterity. 
 Slaves clearly perceive that, if richer, they would be exposed to 
 
PEINCIPLES OP THE CIVIL CODE. 205 
 
 extortion, if not upon the part of their master, at least from over- 
 seers and other subalterns in authority, more greedy and more to 
 be dreaded than the master himself. For the greater part of slaves 
 there is no to-morrow. Joys instantly to be realized alone have 
 power to tempt them. They are gluttonous, idle, dissolute, 
 without reckoning the other vices which spring from their con- 
 dition. Those who have any foresight hide their little treasures. 
 The sad feeling of insecurity, inseparable from their condition, 
 nourishes all the faults destructive of industry, and all the habits 
 most fatal to society, and that too without compensation and 
 without remedy. This is not an empty theory. It is an actual 
 result, at all times, in aU places. 
 
 But we are told that, in respect to labour, the free day 
 labourer in Europe is nearly upon the same footing with the 
 slave. He who is paid by the piece has recompense as a motive, 
 and every effort has its reward ; but he who is paid by the 
 day has no motive but pain, — let him do much or little, 
 he receives the price of a day's work ; so that, in fact, there is 
 no reward for exertion. If he does less than ordinary workmen 
 he maybe dismissed from his employment, as a slave, in' the like 
 case, would be beaten. Both are excited only by fear, and have 
 no interest in the produce of their labour. 
 
 To this reasoning there are three replies : — 
 
 1st. It is not true that the day labourer has not the motive of 
 reward. The more skilful and the more industrious are better 
 paid than others. Those who distinguish themselves are more 
 constantly employed, and always have the choice of the most 
 lucrative engagements. This is a real reward attendant upon 
 their exertions. 
 
 2nd. If the only motives of the free workmen were, in fact, of 
 the penal kind, stUl we should have more hold on him than on a 
 slave. The free workman has his honour like the rest of us. In 
 a free country there is a shame attached to the reputation of 
 being idle and incapable; in this respect, the eyes of his comrades 
 are an addition to those of his employer, and this punishment of 
 honour is inflicted upon an infinity of occasions, by judges who 
 
206 prJOfciPiES OF the civie code. 
 
 have no interest ta soften it. "Free labourers exercise in this 
 way a reciprocal inspection, and are sustained by emulation. 
 This motive has much less force upon a slave. The treatment to 
 ■which slaves are subjected renders them little sensible to a pain 
 so delicate as that of honour ; and as -the ■ injustice of labouring 
 without compensation, for the sole benefit of another, cannot 
 escape them, slaves are not ashamed to avow to each other a 
 repugnance to labour, in which they all agree. 
 
 3rd. That which presents itself to a day labourer as a gain, 
 is a sure gain ; all that he can acquire belongs to himself, and 
 nobody has any right to touch i^k-; but, as we have seen above, 
 a slave cannot enjoy any real security. Exceptions to this 
 remark may be cited. Such a Russian lord, for example, has 
 industrious slaves who possess many thousand roubles, and who 
 enjoy their property in the same way as their master enjoys his. 
 But these are particular cases which do not change the ordinary 
 rule. Such particular and unusual incidents are of no import- 
 ance iu judging of the ordinary effects of a general arrange- 
 ment. 
 
 In this short exposition of the inconveniences of servitude 
 there has been no attempt to move the feelings, no appeal to 
 the imagination, no endeavour to cast odium upon masters by 
 generalizing particular abuses of power. There has been an 
 omission of all reference to those terrible means of rigour and 
 constraint, common in these domestic governments without law, 
 without procedure, without appeal, without publicityj and almost 
 without restraint ; for, as we have already seen, the master is 
 never responsible, except in extraordinary cases. Everjrthing 
 which touches the feelings is easily accused of exaggeration ; and 
 in this case the evidence of simple reason is so strong, that it 
 needs no suspicious colouring. The owners of slaves, whom per- 
 sonal interest has not divested of common sense and of common 
 humanity, wiU readily assent to the advantages of liberty over 
 servitude, and would themselves desire that slavery were ahor , 
 lished, if that abolition could take place without overturning 
 their rank and fortunes, and without any shock to their personal 
 
rEINCIPLES OP THE CIVIL CODE. 207 
 
 security. The injustice and the calamities ■wMcli have accom- 
 panied precipitate attempts, form the greatest ohjection to pro- 
 jects of emancipation. 
 
 This operation could not take place suddenly, except hy a 
 violent revolution, which, by displacing aU men, by destroying all 
 property, by putting all persons into situations to which they had 
 not been educated, would produce evils "a thousand times greate'r 
 than all the immediate good which could be expected from it.* 
 
 Instead of rendering emancipation burdensome to the ftiaster, 
 it ought, as far as possible, to be rendered advantageous to him ; 
 and the first means which naturally ofiers itself to this end, is to 
 fix a price at which every slave shall have the right to purchase 
 his freedom. 'iTnfortunately, there is a strong' objection to this 
 means. From the moment of its adoption, the interest of the 
 master is in opposition to that of his slaves. He will attempt to 
 prevent them from acquiring the sum necessary to their ransom. 
 To leave them in ignorance and to keep them in poverty, to cut 
 their wings as fast as they grow — such will be his poHoy. But 
 this danger arises only from fixing the price. The liberty of 
 redeeming themselves at such prices as may be agreed upon has 
 no inconvenience. The interest of the slave would induce him to 
 do his best, in order that he might have a greater price to offer. 
 The interest of the master would induce him to suffer the slave 
 to grow' rich as fast as possible, in order to draw from him a 
 heavier ransom. 
 
 A second means consists in limiting the power to dispose of 
 slaves by will, so that where there is no successor in the direct 
 line, emancipation shall be a right. The hope of inheritance is 
 always very feeble in distant successors, and no such hope would 
 exist after the law was once known. There could be no injustice 
 where there was no disappointment. 
 
 ■We might go a little further. At each change of the proprie- 
 torship, even in successions the nearest, a small sacrifice of pro- 
 
 * Eeoent experience in, the West ladies seems to contradict this 
 theory ; so does the case of the Polish lordships, cited in the last para- 
 graph of the chapter. — Translator. 
 
208 PEINCIPIES OF THE CIVIL CODE. 
 
 perty might be made to liberty, by the liberation, for example, of 
 a tenth part of the slaves. Such a loss -would not present itself 
 to the heir as of any determinate amount. The defalcation of a 
 tenth part of the inheritance ■would scarcely be perceptible. 
 At the moment of succeeding to the estate it would be less a 
 loss than a slight privation of gain. As respects nephews, who 
 have an additional hope of succession on the side of their fathers, 
 the tax in favour of liberty might be still greater. 
 
 This offering to liberty ought to be determined by lot. Choice, 
 under pretext of selecting the most worthy, would be a source of 
 intrigues and abuse. It would be more fruitful in discontent and 
 jealousy than in happiness. The lot is impartial; it gives to all 
 an equal chance of happiness ; even those whom it does not favour 
 it allows to participate in the charm of hope, and tie fear of being 
 deprived of this chance for certain specified offences would be an 
 additional pledge for the fidelity of the slaves. * 
 
 The emancipation ought to take place by families rather than 
 individually. A father enslaved, and a son free ; a father free, 
 and a son enslaved ; what a disagreeable, — ^what a shocking con- 
 trast ! what a source of domestic chagrin ! 
 
 There might be other means of accelerating an object so de- 
 sirable ; but they can only be discovered by studying the par- 
 ticular circumstances of each country. 
 
 These bonds of slavery, which the legislator cannot cut at a 
 single blow, time dissolves little by little j and the march of 
 liberty ,though slow, is not the less sure. The whole progress of 
 the human mind, of civilization, of morals, of public wealth, and 
 of commerce, brings on, little by little, the restoration of individual 
 
 * This means might tempt the slaves to employ murder to accelerate 
 their liberty — a very serious objection to this lottery. We may observe, 
 however, that its uncertainty would lessen the danger. There would be 
 less temptation to commit a crime, the fruits of which might go entirely 
 to others. But the temptation may be wholly got rid of, if it were pro- 
 vided that this partial emancipation should not apply to cases where the 
 master was poisoned or assassinated, either by his slaves or by some one 
 unknown. In this way, this means of liberation would become a safe* 
 guard to the master. 
 
PEINCIPLES OF THE CIVIL COBE. 309 
 
 liberty. England and Prance have been what Eussia, Poland, 
 and a part of G-ermany now are. 
 
 Proprietors ought not to be alarmed at this change. Those 
 who own the land have a natural power over those who can live 
 only by their labour. The apprehension that freemen, at liberty 
 to go where they choose, would abandon their native soil, and 
 leave the earth uncultivated, is a fear absolutely chimerical, 
 especially when the emancipation goes on gradually. Because 
 it is seen that the slave runs aways when he can, it is concluded 
 that, were he free, stiU he would run away. The opposite con- 
 clusion would be much more just. The motive for flight exists 
 no longer, and the motives for remaining retain all their force. 
 
 "We have seen in Poland some proprietors, enlightened as to 
 their true interest, or animated by a love of glory, carry into 
 effect, throughout vast lordships, a total and simultaneous eman- 
 cipation. Did this generosity ruin them ? Just the contrary : 
 the farmer, having an interest in his own labour, has soon put 
 himself into a condition to pay more than the slave ; and the 
 domains' cultivated by the hands of freemen receive every year 
 an addition to their value. 
 
 CHAPTER III. 
 
 Guariian and Ward. 
 
 The feebleness of infancy demands a continual protection. Every- 
 thing must be done for an imperfect being, which, as yet, does 
 nothing for itself. The complete development of its physical 
 powers takes many years ; that of its intellectual faculties is still 
 slower. At a certain age it has already strength and passions, 
 without experience enough to regulate them. Too sensitive to 
 present impulses, too negligent of the future, such a being must 
 be kept under an authority more immediate than that of the 
 laws ; it must be governed by punishments and rewards, which 
 act, not at distant intervals, but continually, and which can 
 adapt themselves to all the details of conduct during the process 
 of education. 
 
210 PHIlfCIPLES OS THE CITIl CODE. 
 
 In order ttat a condition of life, or a profession, may be chosen 
 for a child, he must of necessity be subraitted to a particular 
 authority. This choice is founded upon personal circumstances ; 
 upon the expectations, the talents, the inclinations of the pupil ; 
 upon his facility for adopting one business rather than i another ; 
 in one word, upon probabilities of success. It is a question too 
 complicated to be left to the decision of a public magistrate ; it 
 must be determined specially for every case ; and such a deter- 
 mination would demand a knowledge of details, which the magis- 
 ^^rate could not possess., 
 
 This power of protection and of government, over individuals 
 thought incapable to protect and to govern themselves, constitutes 
 wardship, — a kind of domestic magistracy, founded upon the 
 manifest need of those who are submitted to it, and which ought 
 to include all the powers necessary to the fulfilment of its object, 
 and nothing more. 
 
 The, powers necessary to education are those of determining the 
 ward's method of life, and of fixing his domicile, with those means 
 ■of reprimand and of correction, without which this authority 
 "would not be efficacious. The severity of these means may be 
 the more easily limited, inasmuch as their application is more 
 immediate, more certain, and more varied, and because domestic 
 igovernment possesses an inexhaustible fund of rewards ; for at 
 :an age when nothing is acquired and everything is bestowed, 
 there is no concession which may not take the form of remu- 
 neration. 
 
 As to the subsistence of the ward, it can be derived from three 
 ^sources only : either from property he possesses in his qwn right, 
 from a gratuitous gift, or from his own labour. 
 
 If the ward has property of his own, it is administered in his 
 name and for his advantage by the guardian ; and all that the, 
 guardian does in that particular, according to the prescrijbe,d, 
 forms, is ratified by the law. 
 
 If the ward have no property, he is supported either at the 
 expense of the guardian^as in the case most common of all, when, 
 the wardship is exercised by the father or mother of the child ; 
 
PalNCIPLES OP THE CITIL CODE. 211 
 
 or at the expense of some charitable establishment ; or finally, by 
 his own labour, as when, for example, he is bound an apprentice 
 in such a way that the period of non^value shall be made up to 
 his master by the profitable labour of a subsequent period. 
 
 "Wardship being a charge purely burdensome, it is made to fall 
 upon those persons who have the greatest inclination to sustain it, 
 and the greatest facility for doing so. This is eminently the case 
 >with the father and mother. !N"atural affection disposes them to 
 this duty more strongly than the law ; yet the law .which imposes 
 it upon them is not useless. It is because instances occur in which 
 children are abandoned by their parents, that this abandonment 
 has been made an offence. 
 
 If the father, when dying, names a guardian for his child, it is 
 to be presumed that he knew better than any one else who had 
 the means and the inclination thus to supply his place. His 
 choice therefore should be confirmed, unless there are yery strong 
 reasons to the contrary. 
 
 If the father has made no provision for the wardship, the obli- 
 gation ought to fall upon some relation whose interest would induce 
 him to preserve the family property, and whose honour and affec- 
 tion would be a security for;the happiness and education of the 
 child. In default of relatives, some friend of the orphan should 
 be chpsen who would voluritdrily undertake the offioe, or some 
 public officer appointed for that special purpose. 
 
 Some attention should be paid to those circumstances which 
 .ought to release particular individuals from the duty of wardship, 
 such, as advanced age, a numerous family, infirmities, or reasons 
 of prudence and jielicacy — such, for example, as a complication 
 of interests. 
 
 Particular precautions against the. abuse of this power are to be 
 found among the penal laws. An abuse of authority as respects 
 the person of the child belongs to the class of personal injuries ; 
 illicit gains at the expense of the ward's fortune fall into the class 
 of fraudulent acquisitions. The only thing to be considered is 
 the particular circumstatice of the offence, namely, the violation of 
 confidence, But though this readers the offence more odious, it is 
 
 p2 
 
"il2 rEINCIPLES OP THE CITIL CODE. 
 
 not always a reason for augmenting the punishment ; on the con- 
 trary, as we shall see elsewhere, it is often a reason for diminish- 
 ing it ; the position of the delinquent being such that the discovery 
 of the offence is easier, the reparation easier, and the alarm not so 
 great. In the case of seduction, the character of guardian is an 
 aggravation of the crime. 
 
 As regards general precautions, the wardship has often been 
 divided ; the administration of the property has been given to the 
 nearest heir, who in quality of heir had the greatest interest in 
 its good management; and the care of the person to some other 
 ■sdative more interested in the welfare of the child. 
 
 Some legislators have taken further precautions, such as for- 
 bidding guardians to buy the goods of their wards ; or permitting 
 wards to re-assume property sold by their guardians within so 
 many years after their majority. The first of these two means 
 does not appear liable to great inconveniences ; the second can- 
 not but affect the mterest of the ward ; for it dimiuishes the price 
 of his property, in the same proportion that its value is diminished 
 in the hands of the purchaser, on account of the precariousness 
 of his possession, — a precariousness which prevents him from 
 making any improvements j for in the end they might turn to 
 his disadvantage by furnishing the former owner an additional 
 motive to reclaim the possession. These two means appear useless 
 if the sale of the property is required to be public, and under the 
 inspection of a magistrate. 
 
 The most simple means of protection is to allow anybody to 
 act as the friend of the ward in legal processes against his guard- 
 ian, whether for mismanagement of the property, for negligence, 
 or for violence. The law thus puts those who are too feeble to 
 protect themselves under the protection of every man generous 
 enough to undertake the charge. 
 
 "Wardship being a state of dependence, is an evil which ought 
 to cease as soon as there is no danger that its cessation will pro- 
 duce a greater evU. But what should be the age of emancipation ? 
 As to that matter, we must be guided by general presumptions. 
 The English law, which has fixed upon the age of twenty-one 
 
PEIIfCIPLES OF THE CIVII. CODE. 213 
 
 years, seems much more reasonable than the Eoman-la-w, ■which, 
 has appointed the age of twenty-five for that purpose, and which 
 has been followed throughout almost the whole of Europe. At 
 twenty-one the faculties of man are developed ; he has a percep- 
 tion of his strength ; he yields to counsel what he refuses to 
 authority ; and can no longer bear to be kept in leading-strings. 
 So strong is this feeUng, that the prolongation of the domestic 
 power often produces a state of irritation and iU-nature equally 
 uncomfortable for all concerned. But there are individuals who 
 seem incapable of arriving at maturity, or who are much slower 
 than others in reaching it. Cases of that nature may be easily 
 provided for by prolonging the guardianship whenever occasion 
 for it occurs. 
 
 CHAPTER lY. 
 
 Father and Child. 
 
 It has been already mentioned that a father is, in some respects, 
 the master, in others the guardian of the child. 
 
 In his character of master, he will have the right to impose 
 services upon his children, and to employ their labour for his own 
 advantage, tiU. the age at which the law establishes their inde- 
 pendence. This right given to the father is an indemnity for 
 the pains and expenses of the children's education. It is well 
 that the father should have an interest and a pleasure in the 
 education of his children. The advantage which he finds in 
 bringing them up is a good thing for both parties. In his quality 
 of guardian he has all the rights, and all the obligations which 
 have been mentioned under that title. 
 
 Tinder the first relation the advantage of the father is con- 
 sidered ; under the second, that of the child. These two relations 
 are easily reconciled in the person of the father, on account of 
 his natural affection, which leads him much rather to make sacri- 
 fices on account of his children, than to avail himself of his rights 
 for his own advantage. 
 
 It would seem, at the first glance, that the le^slator need not 
 
214 PEINCIPLES OP THE CIVIL CODE. 
 
 inteifere between fathers and cMlclren ; that he might trust to 
 the tenderness of the parent and the gratitude of the child. But 
 this superficial view would he deceptive. It is absolutely neces- 
 sary, on one' side, to limit the paternal power, and, on the other, 
 to maintain filial respect by legal enactments. 
 
 As a general rule, we ought to confer no power by the exercise 
 of which the child would lose more than the father would gain. 
 
 This rule has not been followed in Prussia, where, in imitation 
 of the Eomans, there has been given to the father the right to 
 prevent his son from marrying without any limitation of age. 
 
 As respects the paternal authority, political writers have fallen 
 into opposite excesses. Some have wished to make it despotic, as 
 among the Romans ; others have wished to annihilate it. Some 
 philosophers have thought that children should not be delivered 
 up to the caprice and ignorance of parents, but that the state 
 ought to raise them in common ; and they cite, in support of this 
 scheme, Sparta, Crete, and the ancient Persians. It is not recol- 
 lected that this education never existed, except for a small class 
 of citizens ; for in those states the mass of the population was 
 composed of slaves. 
 
 In this artificial arrangement there would be the difficulty of 
 dividing the expense, and of enabling the parents to support the 
 burden of education without deriving any advantage from it; — 
 a burden which would weigh the heavier upon parents little 
 influenced by motives of tenderness for children who had become 
 almost strangers to them.- What would be a stiU greater incon- 
 venience, — these children would not, be seasonably formed for 
 that diversity of .pursuits which they would be Called to foUow. 
 The choice of a business depends upon so many circumstances, 
 that it belongs only to parents to fix upon it; no one else can so 
 well judge, either what, is proper for the children, what they 
 expect, or for what, their talents and inclinations are adapted. 
 Besides, this system, iwhich counts for nothing the reciprocal 
 affection of fathers and children, would have a niost fatal effect 
 in destroying the family spirit, in weakening the conjugal union, 
 in depriving .fathers and mothers of the pleasure which thoy 
 
PBUfCIPLES OF THE CI7IL CODE. 215 
 
 derive from seeing a new generation growing up around ttem. 
 "Would they feel the same zeal for the future happiness of 
 children who would no longer he theirs ? "Would they cherish 
 an affection which they had no hope would ever he returned ? 
 Would industry, no longer animated by the spur of paternal love, 
 have the same ardour ? "Would not domestic enjoyments take a 
 turn less advantageous to general prosperity ? 
 
 ■As a last reason, I shall add, that the natural arrangement, 
 which leaves the choice, the mode, and the burden of education 
 to the parents, may be compared to a series of experiments for 
 perfecting the general system. Everything is advanced and 
 developed by the emulation of individuals, and by differences of 
 ideas and of genius; in a word, by the variety of particular im- 
 pulses. But let the whole be cast into a single mould; let 
 instruction everywhere take the form of legal authority ; errors 
 will be perpetuated, and there wiU be no further progress. This 
 perhaps is saying too much in relation to an idea so chimerical 
 but this notion of Plato's has seduced, in our day, some celebrated 
 authors ; and an error which has misled Eousseau and Helvetius 
 toU be likely to find other defenders. 
 
 CHAPTEE V. 
 
 Of Marriage. 
 
 Inde casas postqua/m,' ac pelles, ignemgue pa/ra/runt, 
 Et rmdier conjtmcta mro, concessit in tmrnm, 
 Castaque privates veneris connubia leata, 
 Cognita siimt, prolemque ex se mdere creatam, 
 Time germs Tmmarmm prvmuyn molescere coepit. 
 
 ■: ■:_•: , LUCEETIUS, v. 1109. 
 
 When huts, and skins, and fire they had prepared; 
 
 And woman joined to man, became as one, 
 
 And chaste connubial joys of private love 
 
 Were known, and offspring from themselves they saw. 
 
 Then first the human race began to soften. 
 
 ITndee whatever point of view the institution of marriage is con- 
 
216 PEINCIPLES OF THE CIVIL CODE. 
 
 sidered, nothing can be more striking than the utility of that 
 noble contract, the tie of society, and the basis of civilization. 
 
 Marriage, considered as a contract, has drawn woman from the 
 severest and most humiliating servitude ; it has distributed the 
 mass of the community into distinct families ; it has created a 
 domestic magistracy ; it has formed citizens ; it has extended the 
 views of men to the future, through affection for the rising gene- 
 ration ; it has multiplied social sympathies. , To perceive all its 
 benefits, it is only necessary to imagine for a moment what men 
 would be without that institution. 
 
 The questions relating to this contract may be reduced to seven. 
 ] st. Between what persons shall it be permitted ? 2nd. What 
 shall be its duration ? 3rd. "What its conditions ? - 4th. At what 
 age may it be contracted ? 6th. At whose choice ? 6th. Between 
 how many persons ? 7th. "With what formalities ? 
 
 Seciion I. 
 Between what Persons shall Marriage le permitted? 
 
 If we are guided upon this question by historical facts, we 
 shall encounter great embarrassment, or rather, it will be im- 
 possible to deduce any single fixed rule from so many contradic- 
 tory usages. There wiU not be wanting respectable examples, 
 to authorize unions which we regard as most criminal, nor for 
 prohibiting many which we esteem quite innocent. Every people 
 pretend to follow in this respect what they call the law of nature; 
 and they look with a sort of horror upon everything not con- 
 formed to the matrimonial laws of their own couutry. Let us 
 suppose ourselves ignorant of all these local institutions ; let us 
 consult only the principle of utility, for the purpose of discover- 
 ing among what persons it is fit to allow, or to prohibit, this 
 union. 
 
 If we examine the interior of a family, composed of persons 
 who differ among themselves in age, sex, and relative duties, 
 therp will be immediately presented to ovtx minds strong reasons 
 for {.luhibiting certain alliances among several individuals of it. 
 
PEINCIPLES OF THE CIVIL CODE. 217 
 
 There is a reason which -weighs directly even against the con- 
 nection of marriage. A father, a grandfather, or an uncle hold- 
 ing the place of a father, might abuse their power by compelling 
 a young girl to contract an alliance with them which would be 
 odious to her. The more necessary the authority of these rela- 
 tives is, the less temptation should they have to abuse it. 
 
 This inconvenience, however, extends but to a small number 
 of the cases called incestuous, and is not the weightiest. It is the 
 danger of dissolute manners, that is, the evil which would result 
 from a transient commerce without marriage, that affords the 
 true reasons for proscribing certain alliances. 
 
 If there were not an insurmountable barrier between near rela- 
 tives called to live together in the greatest intimacy, this contact, 
 continual opportunities, friendship itself and its innocent caresses, 
 might kindle fatal passions. The family — that retreat where 
 repose ought to be found in the bosom of order, and where the 
 movements of the soul, agitated by the scenes of the world, ought 
 to grow calm — ^would itself become a prey to all the inquietudes 
 of rivalry and to all the furies of passion. Suspicions would 
 banish confidence — the tenderest sentiments of the heart would be 
 quenched — eternal enmities or vengeance, of which the bare idea 
 is fearful, would take their place. The belief in the chastity of 
 young girls, that powerful attraction to marriage, would have no 
 foundation to rest upon ; and the most dangerous snares would be 
 spread for youth in the very asylum where it could least escape 
 them. 
 
 These inconveniences may be arranged under four heads : — 
 
 1st. Miil of Rivalry. — The danger resulting from a real or 
 suspected rivalry between a married person and certain relatives 
 or connections. 
 
 2nd. Prevention of Marriage. — The danger of depriving girls 
 of the chance of forming a permanent and advantageous establish- 
 ment in the way of marriage, by diminishing the confidence of 
 those who might desire to marry them. 
 
 3rd. Relaxation of Domestic Discipline. — The danger of invert- 
 ino' the nature of the relations between those who ought to com- 
 
218 PJUNCIPIES OF THE CIVIL CODE. 
 
 mand and those who ought to obey ; or, at least, of weakening 
 that tutelary authority which, for the interest of minors, ought to 
 be exercised over them by the heads of the family or those who 
 hold their place. 
 
 4th. Physical Injury. — Those dangers to the health and Strength 
 which might result from premature indulgences. 
 
 Table of Prohibited Alliances. 
 A man shall not marry, — 
 
 1. The wife or widow of his father, or of any other progenitor. 
 Incotiveniences 1, 3, 4. 
 
 2. Any descendant. Incon/oenienoes 2, 3, 4. 
 
 3. His aunt. Inconveniences 2, 3, 4. 
 
 4. The wife or widow of his uncle. Inoowiieniences 1, 3, 4. ^ 
 
 5. His niece. Inconveniences 3, 3, 4. 
 
 6. His sister. Inconveniences 2, 4. 
 
 7. Any descendant of his wife. . Ineonveniences 1, 2, 3, 4. 
 
 8. His wife's mother. Inconvenience 1. 
 
 9. The wife or widow of any descendant. Inconvenience 1. 
 10. The daughter of his father's wife by a former husband, or 
 
 of his mother's husband by a former wife. Inconveniences 2, 4. 
 
 In a code of laws there would be necessary a corresponding 
 table of alliances forbidden to the woman : here it would ■ be a 
 useless repetition. 
 
 Shall a man be allowed to marry the sister of his deceased wife ? 
 
 There are reasons for and against it. The reason against it is 
 the danger of- rivalry between the sisters ; the reason for it is the 
 advantage of the children. If their mother dies, what an advan- 
 tage to them to have their own aunt for a stepmother! "What 
 more likely to diminish the natural hostility of that connection 
 than so near a relationship ? This last reason seems to be the 
 weightier ; but to obviate the danger of rivalry, the wife ought to 
 have the legal power of forbidding the house to her sister.- If the 
 wife does not choose to have her own sister in the house, what 
 lawful motive can the husband have for desiring it ? 
 
 Shall a man be allowed to marry his brother's widow ? There 
 
rEijjciPLEs OP T:p:E citil code. 219 
 
 are reasons for and against it, as before. The reason against it is 
 still the danger of rivalry ; the reason for it is likewise the advan- 
 tage of the children. But both these reasons seem to have very- 
 little weight. 
 
 My brother has no more authority over my wife than a 
 stranger, and cannot see her but with my permission. The 
 danger of rivalry on his part seems as small as on that of any 
 other person. The reason against is reduced almost to nothing. 
 On the other hand, children have little to fear from a father-in- 
 law. If a stepmother is not the enemy of the children-in-law, 
 it is very remarkable ; but a stepfather is commonly their friend, 
 their -second guardian. ■ The differences ' in the condition of the 
 two- sexes, the legal subjection of the one, the legal empire of 
 the other, expose itheni ' to opposite weaknesses, which produce 
 opposite effects. The uncle is already the natural friend of his 
 nephews and- his nieces. They have nothing to gain in that 
 respect by his becoming the husband of their motMr. If they 
 find an enemy ia a stepfather who is a strcinger, the -protefction of 
 their uncle is always a resource. If they find a friend in such a 
 stepfather, they have acquired an additional protector, whom 
 they would not have had if their uncle had married their mother. 
 The reasons for and the reasons against having little force on 
 either side, it would seem that the good of liberty ought to 
 iieline the balance in favour of permitting such marriages. 
 
 Instead of the reasons which I have given for prohibiting 
 alliances within a certain degree of relationship, ordinary morals 
 decide perefti'^t6rily upon all these points of 'legislation, without 
 taking the trouble to examine any of them. "Nature," it is 
 said, " is repugnant to such alliancGs ; therefore they are for- 
 bidden." 
 
 This argument alone never can furnish a satisfactory reason 
 for prohibiting any action whatever. If the repugnance be real 
 the law is useless, Why forbid what nobody wishes to do ? If, 
 in. fact, there be no repugnance, the reason is at an end ; vulgar 
 morality would have nothing more to say in favour of prohibit- 
 ing the acts in question, since its whole argument, founded upon 
 
220 rHINCIPLES OF THE C17IL CODE. 
 
 natural disgust, is overturned by the contrary supposition. If 
 everything is to be referred to nature — that is, the bent of desire, 
 we must equally ,conform to her decisions, whatever they may 
 be. If those allianees must be forbidden to which she is repug- 
 nant, those with which she is pleased must be permitted. 
 !N"ature which hates, merits no more regard than nature which 
 loves and desires. 
 
 It is very rare that the iDassion of love is developed within 
 the circle of individuals to whom marriage ought to be forbidden. 
 There needs to give birth to that sentiment a certain degree of 
 surprise, a sudden effect of novelty. It is this which ^the poets 
 have happUy expressed by the ingenious allegory of the arrows, 
 quiver, and blinded eyes of Love. Individuals accustomed to 
 see each other and to know each other, from an age which is 
 neither capable of conceiving the desire nor of inspiring it, wiU 
 see each other with the same eyes to the end of life ; and this 
 inclination finds no determinate epoch whence to begin. Their 
 affections have taken another course, like a river which has dug 
 its bed, and which does not change it. 
 
 Nature, then, agrees sufficiently well with the principle of 
 utility. However, it will not do to trust to nature alone. 
 There are circumstances in which the inclination may spring 
 up, and in which an alliance will become an object of desire 
 if it is not prohibited by the laws, and branded by public 
 opinion. 
 
 Under the Greek dynasty of Egyptian sovereigns, the heir of 
 the throne commonly married one of his own sisters. It was, 
 apparently, to escape the danger of an alliance either with a 
 subject or a foreign family. In that rank, such marriages might 
 be exempt from the inconveniences that would attend them in pri- 
 vate life. Eoyal opulence would admit a separation and a seclu- 
 sion, which could not be maintained in the dwelling of a citizen. 
 
 Policy has produced some similar examples in modern times. 
 In our day the kingdom of Portugal has introduced a practice 
 not far distant from that of Egypt ;' a reigning queen has had a 
 nephew and a subject for her husband. But to escape the blot 
 
PRMCIPLES OF THE CIVIL CODE. 221 
 
 of incest, kings and the great can address themselves to an ex- 
 perienced chemist, who -changes at his pleasure the colour of 
 certain actions. Protestants, to whom this lahoratory is closed, 
 have no power to marry their aunts. The Lutherans, however, 
 have given the example of a similar extension of privileges. 
 
 The inconvenience of these alliances is not for the persons who 
 contract them. The evil is wholly in the example. A permission 
 granted to some makes others feel the prohihition as a tyranny. 
 When the yoke is not the same for all, it weighs the heavier upon 
 those who wear it. 
 
 It has heen said that these intermarriages of the same Wood 
 cause the'species to degenerate, and that the necessity of crossing 
 the races is as great among men as among other animals. There 
 might be some force in this objection if it were likely that alli- 
 ances among relations, if not prohibited by law, would become 
 the most common. But it is enough to show the futility of bad 
 reasons ; indeed it would be too much, — were it not an essential 
 service to a good cause, to put aside the false and feeble arguments 
 by which it is attempted to sustain it. Some well-intentioned 
 men are of opinion that no support to good morals, not even a 
 false one, ought to be taken away. This error is the same as that 
 of those devotees who have thought to serve religion by pious 
 frauds. Instead of fortifying it they have weakened it, by ex- 
 posing it to the derision of its adversaries. "When a depraved 
 mind has refuted a false argument, it claims that refutation as a 
 triumph over morality itself. 
 
 Sechon II. 
 For what time ? Considerations on Divorce. 
 If the law did not prescribe any particular duration to this 
 contract, if individuals were allowed to form this engagement like 
 any other, for a longer or shorter term, what under the auspices 
 of liberty would be the most common arrangement ? Would it be 
 very different from the order now established ? 
 ■ The end of the man in this contract might be only the gratifica- 
 
223 PEisrciPLES OF the civil code. 
 
 tion of a transient passion, and that passion satisfied, lie would 
 have had all the advantage of the union -without any of its incon- 
 veniences. It is not the same with the woman ; the engagement 
 has for her, very durable and very burdensome consequences. 
 After the troubles of preg-nancy, after the pains of child-birth, she 
 is charged with the cares of maternity. Thus a union which 
 would give the man nothing but pleasures, would be for the 
 woman the beginning of sufferings, and \vould lead her to inevit- 
 able destruction, if she had not secured beforehand for herself, 
 and for the germ which she nourishes in her bosom, the care and 
 the protection of a husband. "Igivemyself up to you," she says, 
 " but you shall be my guardian in my state of weakness, and you 
 shall provide for the fruit of our love." Here is the beginning 
 of a partnership, which would prolong itself through many years, 
 though there were but. one child ; but successive births form 
 successive ties ; As time advances the engagement is prolonged ; 
 the bounds first assigned to it presently disappear, and meanwhile 
 there is opened a new course of reciprocal pleasures and duties. 
 
 "When the mother can expect no more children, when the father 
 has made provision for the support of the youngest of the family, 
 can we suppose that the union will be severed ? After a coha- 
 bitation of so many years, will the parties think of separating ? 
 Will not habit have entwined their hearts by a thousand and a 
 thousand ties, which death only can sever ? Will not the children 
 form a new centre of union ? "Will they iiot create a new fund 
 of pleasures and of hopes ? Will they not Tender the father and 
 mother necessary to each other, by the cares and the charms of a 
 common affection which no one else can share with them ? It 
 seems, then, that the ordinary course of the conjugal union would 
 be for life ; and if it is natural to suppose in the woman prudence 
 enough thus to secure her dearest interests, can we expect less of 
 a father, or a guardian, whose experience is more mature ? 
 
 The woman has yet an additional interest in the indefinite 
 duration of the union. Time, pregnancy, nursing, cohabitation 
 itself, all conspire to diminish the effect of her charms ; and she 
 must expect that her beauty will decline at an age when the 
 
PRINCiriES OF THE CITIL CODE. 223 
 
 energy of the man is still increasing. She knows that, having -worn 
 out her youth with one husband, she will hardly find another ; 
 while the man will experience no such difficulty. Accordingly, 
 foresight will dictate to her this new clause in tlie agreement : 
 " If I give myself up to you, you shall not be free to leave me 
 without my consent." The nian, in his turn, demands the same 
 promise ; and thus on both sides is completed a lawful contract, 
 founded upon the happiness of the parties. 
 
 It seems, then, that marriage for life is the most natural mar- 
 riage, the best adapted to the wants and the circumstances of 
 families, and, in general, the most favourable to individuals. If 
 there were no l^ws to ordain it, — that is, no laws except those 
 which sanction contracts in general, — this arrangement would 
 always be the most, common, because it is best adapted to the 
 reciprocal interests of the parties. Love on the part of the man, 
 love and foresight on the part of the woman ; the enlightened 
 prudence and affection of parents, — all conspire to imprint the 
 character of perpetuity upon this alliance. 
 
 , But what shall we think if the woman adds this clause : ""We 
 shall not be at liberty to separate, though hereafter we come to 
 hate each other as now we love ?" Such a condition tvould seem 
 an act of folly; it has something about it contradictory and 
 absurd which shocks at the first glance ; everybody would agree 
 in :^egai;ding such a promise as ; rash, and in thinking that hu- 
 manity requires it to be omitted. 
 
 -But it is not the, woman who asks, it -is not- the man who 
 invokes this absurd and cruel clause ; it is the law, 'which im- 
 poses it.on both, as a condition which cannot be avoided. The 
 law. comes in betw;een the contractors ; it takes them by surprise 
 in the midst of youthful trjansports, in those moments which open 
 all the perspective of happiness ; and it says to them, " YoU form 
 this connection in the hope of enjoyment ; but I warn you, you 
 are entering a prison of which the gate will never open. I shall 
 be inexorable to the cries of \your grief, and though you wound 
 each other with your chains, I cannot suffer them ever to be 
 loosened." 
 
224 PitlNCIPLES OP THE CIVIL CODE. 
 
 To believe in the perfection of the object beloved, to believe in 
 the eternity of a passion felt and inspired, these are illusions 
 which we may well pardon in two children blinded by love. But 
 ancient lawyers, and legislators grey with age, do not yield 
 themselves up to such chimeras. If they believe in this eternity 
 of passion, why do they take away a power which nobody would 
 use? But no; they foresee inconstancy, they foresee hatred; 
 they foresee that the most violent love may be succeeded by more 
 violent antipathy ; and with the cold-blooded indifference of care- 
 less unconcern, they pronounce the eternity of the marriage vow, 
 even though the sentiments in which it originated shall be fol- 
 lowed by feelings entirely the reverse. If there were a law 
 which forbade the taking a partner, a guardian, a manager, a 
 companion, except on the condition of always keeping him, what 
 tyranny, what madness it would be called ! Yet a husband is a 
 companion, a guardian, a manager, a partner, and more yet ; and 
 stUl, in the greater part of civilized countries, a husband cannot 
 be had except for life. 
 
 To live under the perpetual authority of a man you hate, is of 
 itself a state of slavery; but to be compelled to submit to his 
 embraces, is a misfortune too great even for slavery itself. Is it 
 said that the yoke is mutual? That only doubles the mis- 
 fortune. 
 
 Since marriage presents to the generality of men the only 
 means of satisfying fuUy and peaceably the imperious desires of 
 love, to turn them from it is to deprive them of its pleasures, 
 and is to do an evil of no small magnitude. Now what more ter- 
 rible bugbear than the indissolubility of this contract ? "Whether 
 it be a marriage, a service, a country, a condition of any kind, 
 the prohibition to go out' of it must operate as a prohibition to 
 enter in. 
 
 It is enough just to indicate another observation, well founded, 
 but common. As marriages are more rare, infidelity to the 
 marriage bed is more frequent; the more seducers, the more 
 seductions. 
 
 "When death is the only deliverer, what horrible temptations, 
 
pnnfciPXES OF the civil code. 325 
 
 ■what crimes may result from a position so fatal ! The examples 
 which remain unknown, are perhaps more numerous than those 
 which come to light. What most commonly takes place upon 
 ■ these occasions is negative offence. How easy is crime, even to 
 unperverted hearts, where nothing but inaction is needed to ac- 
 complish it ! Expose a detested wife and a beloved mistress to a 
 common peril ; will efforts as generous and as sincere be mads 
 for the one as for the other ? 
 
 It must not be dissembled that there are objections against 
 the dissolubility of marriages ; which I now proceed to state, and 
 to answer. 
 
 First Objection. — If divorce were allowed, neither party would 
 regard their lot as irrevocably fixed. The husband would look 
 round to find some woman who pleased him better ; the wife, in 
 like manner, would be employed upon comparisons and projects 
 to procure a better husband. There would result a perpetual 
 and mutual insecurity in this important state, on which every 
 plan of life depends. 
 
 Answer. — 1st. This same inconvenience exists in part, under 
 o-ther names, during an indissoluble marriage, whenever, accord- 
 ing to the supposition, affection is extinguished. In that case, it is 
 not a new wife that is sought for, but a mistress; it is not a second 
 husband, but a lover. The strict duties of marriage, and its 
 prohibitions so easily eluded, rather serve to produce inconstancy 
 than to prevent it. It is well known that prohibition and con- 
 straint are a stimulus to the passions. Is it not a truth of expe- 
 rience, that even obstacles, by occupying the imagination, and 
 by recalling the mind to the same object, serve only to increase 
 the desire of surmounting them ? The rule of liberty would 
 produce fewer stray fancies than the law of conjugal captivity. 
 Eender marriages dissoluble, and there would be more apparent 
 separations, but fewer real ones. 
 
 2nd. "We. should not confine ourselves to a consideration of 
 the evil of the thing ; we must look also at its advantages. Both 
 parties knowing what they might lose, would cultivate those 
 means of pleasing from which their mutual affection originated. 
 
 Q 
 
226 PEINCIPIES OF IHE CITIL CODE. 
 
 ; They -would take more pains to study and to humour each other's 
 disposition. They would perceive the necessity of making some 
 sacrifices of inclination and self-love. In one word, care, atten- 
 tion, complaisance, would be prolonged after marriage ; and what 
 is now done only to gain affection, would then be practised to 
 preserve it. 
 
 3rd. Young persons about to be married would not be so often 
 sacrificed by the avarice and the cupidity of their parents. It 
 would be necessary to give some attention to inclinations before 
 forming a union which repugnance might break. That real 
 suitability upon which happiness depends, — correspondence of 
 9.ge, of education, and of taste, — would then enter into the cal- 
 culations even of prudence. It would no longer be possible to 
 marry property without marrying the owner of it. Before 
 forming an establishment, some attention would be paid to 
 secure its, durability. 
 
 Second Objection.— 'Eadh party, regarding the connection qs 
 transitory, would espouse with indifference the interests, espe- 
 cially the pecuniary interests, of the other. Hence, profusion, 
 negligence, and bad economy of every kind. 
 
 Answer. — There is the same danger in partnerships of com- 
 merce, yet the evil is very rarely felt. A dissoluble marriage 
 has one tie which such ]f)artnerships have not, — the strongest, 
 the most durable of all moral ties, — an affection for their common 
 children, which cements the affection of the married couple. We 
 see this bad economy, attendant upon an indissoluble marriage, 
 much oftener than on a partnership of commerce. "Why ? It is 
 the effect of indifference and disgust, which produces in married 
 people who are tired of each other a continual need of separation, 
 and of something to distract their attention. The moral tie of 
 the children is dissolved. Their education, the care of their 
 future happiness, is hardly a secondary object; the. charm of 
 common interest vanishes ; each, engaged in a separate pursuit 
 of pleasure, cares little what may happen to the other. This 
 principle of disunion introduces a thousand -kinds of negligence 
 and disorder into their affairs, and the ruin of their fortune is 
 
PKIIfCIPlES OF THE CIVIL CODE. 33,7 
 
 very often a consequence , of the estrangement of their hearts. 
 Under the reign of liberty, this evil would not exist. Before 
 disuniting their interests, disgust would have separated their 
 persons. 
 
 Facility of divorce tends rather to prevent prodigality than to 
 produce it. Each would be careful of giving so all-sufficient a 
 ground of discontent to an associate, whose esteem it would be 
 necessary to conciliate. Economy estimated at all its worth by 
 the interested prudence of both parties would always be so great 
 a merit in their eyes, that it would cover a multitude of faults, 
 and many wrongs would be forgiven for its sake. Moreover, it 
 would be very evident that, in case of a divorce, that party who 
 had gained the reputation of misconduct and prodigality, would 
 have much less chance of forming a new and advantageous con- 
 nection. 
 
 Third Oljection. — -The dissolubility of marriage would produce 
 in the stronger party a disposition to maltreat the feebler, in 
 ■ order to force consent to a divorce. 
 
 Answer. — This objection is solid ; it merits the greatest atten- 
 tion on the part of the legislator. Fortunately, a single precau- 
 tion will be sufficient to diminish the danger. In case of bad 
 treatment the party ill-treated should alone be set at. liberty. 
 Thenceforth, the more desirous a husband might be of a divorce,/- 
 for the sake of a subsequent marriage, the more fearful he would 
 be of iU conduct towards his wife, lest such actions, might be 
 construed as violence intended to force her consent. Gross and 
 brutal means being prohibited, attractive means would be his. 
 only resource for persuading her to a separation. He would 
 tempt her, if he had the means,.by the offer of an independent 
 provision ; or he would find another husband for her as the price- 
 of his ransom. - , 
 
 Fourth Ohjectioii, — ^What would become of the children after the 
 law had dissolved the union between, their father and mother. 
 
 Answer. — "What would become of them if death had dissolved 
 it ? In the case of divorce the disadvantage to which they are 
 subjected is not so great. The children may continue to life 
 
 a 2 
 
328 PHINCIPLES OF THE CITIL CODE. 
 
 with that parent whose cares are most necessary to them ; for 
 1 he law consulting their interest will confide the boys to the 
 lather and the girls to the mother. The great danger of children 
 after the decease of a parent is, that of passing under the bontrol 
 of a stepfather or of a stepmother, who may look upon them with 
 hostile eyes. Girls are especially exposed to the most vexatious 
 treatment under the habitual despotism of a second mother. In 
 the case of divorce this danger does not exist. The boys will 
 have their father to educate them — the girls will have their 
 mother. Their education will suffer less than it would have done 
 &om domestic discords and hatred. If the interests of the children 
 would justify the prohibition of second marriages in case of 
 divorce, for a much stronger reason might the same prohibition 
 be justified in the case of death. 
 
 The dissolution of a marriage is an act sufficiently important 
 !to be submitted to formalities which would have the effect more 
 •or less to counteract the operation of caprice, and to leave the 
 parties time for reflection. The intervention of a magistrate is 
 aiecessary, not only to establish the fact that there has been no 
 violence on the part of the husband to force the wife's consent, 
 but also to interpose a delay, longer or shorter, between demand- 
 ing and obtaining the divorce. 
 
 This is one of those questions upon which opinions will always 
 
 be divided. Every person is inclined to approve or to condemn 
 
 divorce according to the good or the evil which he may have 
 
 seen to result from certain particular cases, or according to his 
 
 -fiwn personal interest. 
 
 In England a marriage can be dissolved only when the adultery 
 
 .'of the wife is proved. But it is necessary to pass through many 
 
 ': tribunals, and, as an Act of Parliament on this subject costs at 
 
 least five hundred pounds sterling, divorce is accessible only to a 
 
 -very limited class. 
 
 In Scotland the adultery of the husband is enough to found a 
 divorce upon. In this respect the law exhibits a certain degree 
 of facility; yet it is not destitute of rigour. "While it dissolves 
 .the marriage it prohibits the guilty party from contracting another 
 «(rith the accomplice of his offence. 
 
PEIXCIPIES OP THE CIVIL CODE. 22ft', 
 
 In Sweden divorce is aUovred for adultery on either side, which, 
 there amounts to the same thing as permitting it hy mutual con- 
 sent ; for the husband suffers himself to he accused of adultery, 
 and the marriage is dissolved. 
 
 In Denmark it is the same, provided collusion cannot be 
 proved. 
 
 Under the code Frederic the parties can separate at pleasure, 
 and marry again after a year's solitude. It would seem that 
 some part of this interval would be better employed in delaying,, 
 the divorce. 
 
 At Geneva adultery is a ground of divorce ; but it may also 
 take place for mere incompatibility of character. A woman, by 
 leaving her husband's house and retiring among her friends or 
 relations, gives him occasion to ask a divorce, which demand, if 
 persisted in, always has its legal effect. Divorce is rare. It is. 
 proclaimed in all the churches ; and that proclamation is a sort, 
 of punishment or pubUc censure always dreaded. 
 
 After marriage, in France, was made dissoluble at the pleasure 
 of the parties, in two years there took place at Paris, out of all 
 the marriages in that city, between five and six hundred divorces. 
 But it is very difficult to judge of the real effects of an institution 
 so new. 
 
 Divorces are not common in those countries where they havfr 
 been a long time permitted. The same reasons which prevent, 
 legislators from permitting them deter individuals from availing 
 themselves of the permission. The government which prohibits- 
 them decides, by so doing, that it understands the interests of 
 individuals better than they do themselves. If such a law has 
 any effect at all it must be a bad one. 
 
 In all civilized countries the Tfoman who has experienced 
 cruelties and bad treatment on the part of her husband, has ob- 
 tained from the tribunals what is called a separation ; but this is 
 not attended by a liberty to either party of marrying again. The 
 ascetic principle, hostile to pleasure, has only consented to the 
 assuagement of suffering. The outraged woman and her tyrant . 
 undergo the same lot ; but this apparent equality covers an in- 
 
286 PKINCrPlES OF THE CIVIL CODE. 
 
 eq^uality too real. Opinion leaves a great freedom to the man, 
 "vrtule it imposes fke strictest restraints upon the woman. 
 
 Section III. 
 On what Conditions ? 
 
 The only question here is, to discover those general conditions 
 of marriage which, according to the principles of utility, .suit the 
 greatest number best ; for it ought to be left to the peifsons in- 
 terested to fix upon the particular stipulations of their contract ; 
 or in other words, the conditions ought to be left to their will, 
 with some general exceptions. 
 
 !First Condition. The wife shall be subject to the will of the 
 husbani, reserving an appeal to the courts of justice. There may 
 at any moment arise a contradiction between the wills of two 
 persons who pass their lives together. The good of peace requires 
 that a pre-eminence should be established which may prevent or 
 end these contests. Bnt why should the man govern ? Because 
 he is the stronger. In his hands the power maintains itself. 
 ■Give the authority to the woman, and every moment a revolt 
 would break out on the part of her husband. This reason is not 
 the only one. It is probable that the man, by his Mnd of life, 
 has acquired more experience, more aptitude for affairs, more 
 steadiness of mind. In these respects there are exceptions ; but 
 there are exceptions to every general rule. 
 
 I have said, reserving an appeal to the courts of justice. For it 
 is not our object to make the man a tyrant, and to reduce to a 
 passive state of slavery the sex, which by its feebleness and its 
 tenderness, most needs the protection of the laws. The interests 
 ef women have been too often sacrificed. By the Eoman law the 
 rules of marriage are a code of violence ; the man receives the 
 lion's share. But those, on the other hand, who out of some 
 vague notion of justice and generosity wish to give to the woman 
 an absolute equality, only spread for her' a dangerous snare. To 
 absolve her by law, as far as possible, from the necessity of pleasing 
 
PTIINCIPLES OF THE CIVIL CODE. 331 
 
 her husband, would operate to weaken her empire instead of 
 strengthening it. 
 
 Man, assured of his prerogative, is not disturbed by the in- 
 quietudes of jealousy, and enjoys it while he yields it. Substitute 
 fpr this arrangement, a rivalry of powers; the pride of the stronger 
 would be continually wounded, it would convert him into a dan- 
 gerous antagonist ; and looking more at what was taken from him 
 than at what was left, he would turn aU his efforts towards re- 
 establishing his pre-eminence. 
 
 Second Condition. The control of the affairs of the family shall 
 rest with the man alone. This is the natural and immediate con- 
 sequence of his authority. Besides, it is commonly upon his 
 labour that the support of the family depends. 
 
 Third Condition. Property shall he enjoyed in common. The 
 reasons , are, first, the good of equality ; second, the benefit of 
 ^ving both parties the same interest in the domestic prosperity. 
 But this condition is necessarily modified by the fundamental 
 tiile which submits the wife to the power of the husband. Differ- 
 ences in the mode of life and in the nature of property will 
 require a great many details ; but this is not the place to give 
 them. 
 
 Pourth Condition. The wife shall ohserve eonjugal fidelity , The 
 reasons why adultery should be made an offence will be given in 
 the Penal Code. 
 
 Eifth Condition. The hushand shall ohserve the same conjugal 
 fidelity. The reasons for punishing adultery on the man's part, 
 are far less cogent. StiU .they are strong enough to justify this, 
 legal condition. They will be explained in the Penal Code; 
 
 Section IV. 
 
 At what Age. 
 
 At what age shall marriage be permitted ? It ought never to' 
 be allowed before the age at which the contracting parties are 
 Supposed to know the extent of the engagement; and this requi- 
 
232 
 
 PEIJICIPIES OF THE CITIl CODE. 
 
 sition ouglit to be still more strict in countries where the marriage 
 is indissoluble. "What precautions are not necessary to preyent a 
 rash engagement in a case in which repentance will be useless ? 
 Surely, in such a case, this right of contracting a marriage ought 
 not to be allowed at an age earlier than that at which the indi- 
 vidual is entrusted with the management of his property. It is 
 absurd that a man should be able to dispose of himself for life, at 
 an age when he cannot sell a piece of land of the value of ten 
 crowns. 
 
 Section V. 
 At whose Choice. 
 
 On whom shall the choice of a husband or a wife depend ? This 
 question presents an apparent, or rather a real absurdity; as 
 though such a choice could possibly belong to any other than the 
 parties interested. 
 
 The law should never trust this power to fathers. They lack 
 two things essential to its exercise : the knowledge requisite for 
 such a choice, and a will directed to the true end. Parents and 
 children neither see nor feel alike. They have not the same 
 interest. Love is the motive of the young ; and for that, old men 
 care but little. In general, fortune is a trifling consideration 
 with the children ; it absorbs all the father's thoughts. The son 
 wishes to be happy ; the father wishes him to seem so. The son 
 is ready to sacrifice every interest to that of love; the father 
 wishes that interest to be subordinate to every other. 
 
 For a father to receive into his family a son-in-law or a 
 daughter-in-law whom he dislikes, is a vexatious circumstance ; 
 but is it not more cruel that the child should be deprived of 
 a companion who would make him happy ? Is the pain of the 
 father equal to that of the child ? Compare the probable dura- 
 tion of the father's life with that of the son, and consider if you 
 ought to sacrifice that which is beginning to that which is ending. 
 Such is the objection to the mere right of preventing a marriage. 
 How much stronger would it be if a pitiless tyrant might abuse 
 
PEINCIPLES OP THE CIVIL CODE. • 233 
 
 the tenderness and the timidity of his daughter, and force her to 
 marry a husband whom she hated ? 
 
 The attachments of children depend very much upon their 
 fathers and mothers. This is partly true of the sons, and almost 
 wholly so of the daughters. If the parents neglect to use this 
 right, if they do not apply themselves to direct the inclinations 
 of their children, if they abandon to chance the choice of their 
 acquaintances, whom ought they to blame for the imprudences of 
 youth ? 
 
 But in taking from the parents the power to restrain and to 
 compel, there is no need to take from them the power of mode- 
 rating and retarding. The marriageable age may be divided into 
 two epochs. During the first, the want of consent on the part of 
 the parents should be enough to prevent the marriage ; during the 
 second, they might still have the power of retarding for some 
 months the celebration of the contract. This time might be 
 allowed the parents to try what they could do in the way of 
 advice. 
 
 There exists a very singular custom in a country of Europe 
 celebrated for the wisdom of its institutions. The consent of the 
 father is necessary to a minor, unless the lovers can run a hundred 
 leagues before being caught. But if they are so lucky as to arrive 
 in a certain village, and to procure at the moment some passer-by 
 to pronounce a nuptial benediction, without any questions asked 
 or answered, the marriage is valid and the father is ousted of his 
 authority. Has this privilege been left in existence for the 
 encouragement of fortune-hunters. Or is there a secret desire of 
 weakening the paternal power and of favouring what are elsewhere 
 called mis-alliances? 
 
 Section VI. 
 
 Sow many Parties to the Contract ? 
 
 Between how many persons may this contract of marriage 
 subsist at the same time ? In other terms, ought polygamy to be 
 
231 piujfcrpLEs or tsb civil code. 
 
 tolerated ? Polygamy is simple or complex. Simple polygamy 
 is polygyny, multiplicity of wives, or poh/andia, multiplicity of 
 husbands. 
 
 Is polygyny useful or hurtful ? All that anybody has been 
 able to say in its favour relates to certain particular cases, to 
 certain transient circumstances — as when a man by his wife's 
 sickness is deprived of the pleasures of, marriage, or when by his 
 employment he is obliged to divide his time between two houses. 
 
 That polygyny might sometimeabe agreeable to a man, is likely ; 
 but it never would be so to the women. For every man favoured 
 by it, the interests of two women would be sacrificed. 
 
 1st. The effect of such aUoense would aggravate the inequality 
 of conditions. Superiority of wealth has too great an ascendancy 
 already, and such an institution would increase it. A rich man 
 negotiating with a poor girl would avail himself of his position 
 to secure the right to give her a rival. Each of his wives would' 
 find herself reduced to half a husband, when she might have made 
 happy another man, who in consequence of this unjust arrange- 
 ment is deprived of a companion. 
 
 2nd. "Where would be the peace of families ? The jealousies 
 of rival wives would spread among their children. They would 
 form two opposite parties, two little armies, each having at its 
 head a protectress equally powerful, at least so far as rights were 
 concerned. "What a scene of contentions I what fury ! what ani- 
 mosity ! From the enfeeblement of paternal ties would result a 
 like enfeeblement of filial respect. Each son would see in his 
 father the protector of his enemy ; all his acts of kindness or of 
 severity, interpreted by. opposite prejudices, would be attributed 
 to unjust sentiments of favour or of hatred. The education of the 
 children would be wretched in the midst of these hostile passions, 
 under a system of favour or oppression which would spoil some 
 by rigour and others by indulgence. In the East polygamy may 
 be consistent with peace ; but it is slavery that prevents discord, 
 one abuse palliates another, all are tranquil under the same yoke. 
 
 There would result from polygyny an increase of the husband's 
 authority. What zeal to satisfy him ! "What delight at antici- 
 
PRINCIPLES OF THE CIVIL CODE. 335 
 
 pating a rival in an act pleasing to the husband ! "Would this he 
 an evil or a good ? Those persons who, out of a mean opinion of 
 women, think they cannot be too submissive, find polygyny admir- 
 able. Those who think that the ascendancy of the sex isfavour- 
 able to refinement of manners, that it augments all the pleasures 
 of society, that the mild and persuasive authority of women is 
 salutary in the family, must esteem polygyny a great' evil. 
 
 It is not necessary seriously to discuss either polyandia, or 
 complex polygamy. Too much has been said even on polygyny, 
 were it not necessary to point out the true basis upon which 
 manners rest. 
 
 Sectioit VII. 
 
 With what Formalities. 
 
 The formalities of the marriage contract ought to have two 
 objects in view : — Ist. To establish the fact of the free consent 
 of the parties, and of the lawfulness of their union. 2nd. To 
 make known the marriage, and to secure proofs of its celebra- 
 tion. It is proper, besides, to explain to the contracting parties 
 the legal rights which they respectively acquire, and the legal 
 
 obligations they assume. 
 
 Most nations have made this act very solemn ; and, without 
 doubt, ceremonies which strike the imagination serve to impress 
 'upon the mind the force and dignity of the contract. 
 
 In Scotland, the law far too accommodating, exacts no for- 
 mality whatever. A mutual declaration of marriage, in the pre- 
 sence of a witness, is enough to render the contract valid ; and 
 therefore it is that English minors, impatient of restraint, 
 hasten to relieve themselves by an off-hand marriage at a village 
 on the Scotch frontier, called Gretna Green. 
 
 In establishing the forms of marriage there are two dangers to 
 be avoided : — 1st. That of rendering them so embarrassing as 
 to prevent marriage, when there is wanting neither freedom of 
 consent nor capacity to contract. 2nd. That of giving to the 
 
236 PBINCIPLES OP THE CIVIL CODE. 
 
 persons who are required to be present at the formalities the 
 power of abusing that right, and of employing it to some bad 
 end. 
 
 In many countries one must watch a loijg time in the vestibule 
 of the temple before arriving at the altar. Under the name of 
 an affianpe the chains of marriage are worn without its enjoy- 
 ments. Eor what serves this preliminary, except to multiply 
 embarrassment, and to spread snares ? The code Frederic is 
 loaded, in this respect, with useless restraints. The English law, 
 on the other hand, is remarkable for its simplicity and clearness. 
 By the English law the parties know what they are about ; they 
 are married, or they are not married; there is no intermediate 
 condition. 
 
PRINCIPLES OP THE PENAL CODE. 
 
23S 
 
 PART FIRST. 
 OF OFFENCES. 
 
 INTRODUCTIOK 
 
 The object of this first part is to describe offences, to classify 
 them, and to point out the circumstances by •which they are 
 aggravated or extenuated. It is a treatise upon diseases, -which 
 of necessity precedes the inquiry as to cures. 
 
 The common nomenclature of offences is not only incomplete, 
 it is deceptire. Unless we begin by reforming it, we never shall 
 be able to dispel the obscurity in which the science of penal legis- 
 lation is involved. 
 
 CHAPTEE I. 
 Classification of Offences. 
 What is meant by an offence ? The sense of this word varies 
 according to the subject under discussion. If the question relates 
 to a system of laws already established, offences are whatever the 
 legislator has prohibited, whether for good or for bad reasons. If 
 the question relates to a theoretical research for the discovery of 
 the best possible laws, according to the principle of utility, we 
 give the name of offence to every act which we think ought to 
 be prohibited by reason of some evil which it produces or tends 
 . to produce. Such is the only sense of this word throughout this 
 treatise. 
 
240 PEINCIPLES OF ,THE PENAt CODE. 
 
 The most general classification of offences may be deriveji from 
 the classes of persons who suffer by them. They may be divided 
 into the four following kinds : — 
 
 1st. Privkte Offences. — Those which are injurious to such or 
 such assignable individuals,* other than the delinquent himself. 
 
 2nd. Refledtive Offences, or Offences against One^s Self. — Those 
 by which the delinquent injures nobody but himself; or, if he 
 injures others, it is only in consequence of the injury done to 
 himself. 
 
 3rd. Semi-public Offences. — Those which affect a portion of 
 the community, a district, a particular corporation, a religious 
 sect, a commercial company, or any association of individuals 
 united by some common interest, but forming a circle inferior in. 
 extent to that of the community. 
 
 It is never a present evil nor a past evil that constitutes a 
 semi-public offence. If the evil were present or past, the 
 individuals who suffer, or who have suffered, would be assignable. 
 It would then be an offence of the first class, a private offence. 
 In semi-public offences the point is a future evil, — a danger 
 which threatens, but which as yet attacks no particular indi- 
 vidual. 
 
 4th. Public Offences. ^Those which produce some common 
 danger to aU the members of the state, or to an indefinite num- 
 ber of non-assignable individuals, although it does not appear 
 that any one in particular is more likely to suffer than any 
 other.-j- 
 
 * An assignable individual is sucH or such an individual in particular, 
 to the exclusion of every other ; as Peter, Paul, or William. 
 
 t The fewer individuals there are in a flistrict or a corporation, "the 
 more probable it is that the parties injured wiU be assignable j so that it 
 is sometimes difBoult, to determine whether a given offence is private or 
 semi-publie. The more considerable the district or corporation is, the 
 nearer do the offences which affect them approach to public offences. 
 These three classes are consequently liable to be confounded more or less 
 with each other. But this inconvenience is inevitable in all the ideal 
 divisions which we are obliged to establish for the sake of order and 
 por.3picuity. 
 
PBUTCIPLES OP THE PENAL CODE. . 241- 
 
 CHAPTEE II. 
 
 Suh-dmsion of Offences. 
 
 SrB-j>msioif OP Pbivate Offences. — Since the happiness of an 
 individual flows from four sources, the offences which may attack 
 it can be arranged under four divisions : — 
 
 1st. OflEences against the person. 
 
 2nd. Offences against property. 
 
 3rd. Offences against reputation. 
 
 4th. Offences against the condition ; that is, against 
 domestic or civil relations, such as the relation of father and 
 child, husband and wife, master and servant, citizen and magis- 
 trate, &c. 
 
 Offences which are injurious in more respects than one- 
 may be designated by compound terms; as offences against 
 the person and property, offences against the person and repu- 
 tation, &c. 
 
 Sub-division op Eeplective Offences. — Offences against one's 
 self are, properly speaking, vices and imprudences. It is useful 
 to classify them, not in order to subject them to legislative seve- 
 rity, but rather to remind the legislator, by a single word, that 
 such or such an action is beyond his sphere. 
 
 The sub-division of these offences is exactly the same as that 
 of offences of the first class ; we are vulnerable by our own hand^ 
 in as many points as by the hand of another. We can injure 
 ourselves in our person, our property, our reputation, our civil' 
 and domestic condition. 
 
 Sub-division of Semi-public Offences. — The greater part of" 
 these offences consist in the violation of those laws of which the 
 object is to protect the inhabitants of a district against the dif- 
 ferent physical calamities to which they may be exposed. Such 
 are laws for preventing the spread of contagious diseases, for pre- 
 serving dykes and causeways, for restraining the ravages of" 
 hurtful animals, for guarding against famine. The offences- 
 
2^3; PKJlfCrPIES OP THE Pi;NAI CODE. ; 
 
 ■vrhicli tend to produce calamities of tHs sort form the first kind 
 of semi-public offences. 
 
 Those semi-public offences ■vrhich may be consummated with- 
 out the intervention of a natural scourge, such as threats against 
 a certain class of persons, calumnies, libels which touch the 
 honour of some sect or company, insults to some object of reli- 
 gion, thefts of property belonging to societies, the destruction of 
 the ornaments of a city, these and others like them form a second 
 kind of semi-public offences. The first sort are founded upon 
 some calamity ; the second sort arise from pure malice. 
 
 Sub-division op Pubiic Oppences. — Public offences may be 
 arranged under nine divisions. 
 
 1st. ences against External Security. — Those which tend to 
 expose the nation to the attacks of a foreign enemy; such as 
 every act which provokes or encourages hostile invasion.. 
 
 2nd and 3rd. Offences against Justice and the Police.' — It is diffi- 
 cult to draw the line which separates these two branches of ad- 
 ministration. Their functions have the same object-r^that of 
 maintaining the internal peace of the state. Justice regards in 
 particular offences already committed ; her power does not dis- 
 play itself till after the discovery of some act hostile to the 
 security of the citizens. Pojice applies itself to the preivention 
 both of offences and calamities ; its expedients are, not punish- 
 ments, but precautions; it foresees evUs, and provides against 
 wants. 
 
 Offences against justice and police are those which have a ten- 
 dency to thwart or to misdirect the operations of these two 
 nMgistracies. 
 
 4th. Offences against the Public Force.— Thase which have a 
 tendency to thwart or misdirect the operations of the military 
 force destined to protect the state, both against external enemies 
 and against such internal adversaries as the government cannot 
 subdue except by an armed force. 
 
 5th. Offences against the Public Treasure. — Those which tend to 
 diminish the revenue, and to disturb or divert the employment of 
 fluids destined to the service of the state. 
 
rHUfCIILES OF THE PENAL COKE. MS 
 
 6th. ' Offences against Population.— ^ThosQ which, tend to a; dimi-' 
 nution of the numbers of the community. 
 
 7th. Offences against National Wealth.— T^hase which tend to 
 diminish the quantity or the value of the property belonging to 
 the individual members of the community. 
 
 8th. Offences against the Sovereignty. — It is the more difficult 
 to give a clear idea of these oifences because there are many states 
 in which it would be almost impossible to resolve the question of 
 fact — Where does the supreme power reside ? The following is 
 the simplest explication. "We ordinarily give the collective name ■ 
 of government to the whole assemblage of persons charged with 
 the different political functions. There is commonly in states a 
 person or a hody of persons who assign and distribute to the mem-, 
 bers of the government their several departments, their several 
 functions and prerogatives, and who have authority over them and 
 over the whole. The person or the collection of persons which 
 exercise this supreme power is called the sovereign. Offences 
 against the sovereignty are those which tend to thwart or to mis- 
 direct tho operations of the sovereign, thus having a direct tendency 
 to thwart or misdirect the operations of the different parts of the 
 government. 
 
 , 9th.' Offences against Religion. — Governments cannot possess 
 either an universal knowledge of what passes in secret nor an 
 inevitable power which leaves the guilty no means of escape. To 
 supply these imperfections of human power it has been thought 
 necessary to inculcate a belief in supernatural power. I speak , 
 generally of all religious systems, and not of any one in particular.. 
 To this superior power is attributed a disposition to maintain the 
 laws of society, and to punish or to reward, at some future time, 
 such acts as may have escaped punishment or may have failed to, 
 be rewarded among men. Religion is represented as an allegorical 
 personage charged with preserving and strengthening among . 
 mankind a fear of this supreme judge. It follows that to dimi- 
 nish or to pervert the influence of religion is to dimirri^ or to 
 pervert, in the same proportion, the service which the state re- 
 ceives from it, whether that service is exercised' in repress'iiig 
 
 B 2 
 
244 PBnfcaPLES OF the penal code. 
 
 cnme or encouraging virtue. Whatever tends to thwart or to 
 misdirect the operations of this power is an offence against 
 religion.* 
 
 CHAPTEE III. 
 Some other Divisions. 
 The divisions of which we are about to speak may all be resolved 
 into the fundamental divisions already given ; but they are some- 
 times employed for the sake of brevity, and to mark some parti- 
 cular circumstance in the nature of offences. 
 
 1st. Complex Offences, in opposition to Simple Offences. — An 
 offence which makes a joint attack upon the person and reputation, 
 or upon the reputation and property, is a complex offence. A 
 public offence may include a private offence. For example, a 
 perjury which saves a criminal from punishment is a simple offence 
 against justice ; a perjury which saves a criminal and at the same 
 time causes the punishment to fall upon a person who is innocent 
 iiicludes a public and a private offence. It is a complex offence. 
 
 2nd. Principle and Accessory Offences. — The principal offence 
 is that which produces the evil in question ; accessory offences are 
 acts which have a greater or less preparatory force towards the 
 production of the principal offence. In the crime of counterfeit- 
 ing the true principal offence is the act of issuing the false money, 
 for thence comes his loss who receives it. The act of fabricating 
 the false money in this point of view is only an accessory offence. 
 
 3rd. Positive and Negative Offences. — Positive offence is the 
 result of an act intended to produce that end. Negative qffence 
 results from a neglect to act, from not doing what one is bound 
 to do. 
 
 * The qnestion here relates to the utility of religion ia a political point 
 o£ view, not to its truth. I say offences against religion, the abstract 
 entity, not offences against God, the Existent Being. For how can a sin- 
 ful mortal offend an impassive Bcmg, or affect his happiness ? Under 
 what class could this imaginary offence be arranged ? Would it be an 
 offence against his person, his property, his reputation, or his condition P 
 
PEINCIPLES OF THE PENAL CODE. 245 
 
 "With respect to defamation, Horace has well distinguished 
 these two modifications of the offence : — 
 
 Absentem qui rodit aumcum. 
 
 Qm, non defendit, aUo cuVpwnte . . . . Jiic mger est. 
 
 Who blames an absent friend, — 
 
 Another blaming, who does not defend him, 
 They both are black. 
 
 Great offences are generally of the positive kind. The gravest 
 of the- negative kind belong to the class of public offences. If the 
 shepherd allows himself to sleep, the flock wiU suffer. 
 
 There are many cases of negative offence, which, in a perfect 
 system, might and ought to be placed by the side of positive 
 offences. To induce a man to go with a lighted candle in 
 his hand into a room which we know to be full of loose gun- 
 powder, and so to cause his death, is a positive act of homicide ; 
 while seeing him go of his own accord, and suffering him to do 
 it, without warning him of the danger, is a negative offence to be 
 ranged under the same head.* 
 
 4th. Imaginary Offences. — These are acts which produce no real 
 evil, but which prejudice, mistake, or the ascetic principle, have 
 caused to be regarded as offences. They vary with time and 
 place. They originate and end, they rise and they decay, with 
 the false opinions which serve as their foundation. Such at 
 Eome was the offence for which vestal virgins were buried alive. 
 Such are heresy and sorcery, which have caused so many 
 thousand innocent victims to perish in the flames. 
 
 To give an idea of these imaginary offences it is not necessary 
 to prepare a catalogue of them; it will be enough to indicate 
 some principal groups. We say to the legislator, " The evil 
 attributed to such actions is imaginary ; it will be better not to 
 prohibit them by law." Such is our advice ; — to the legislator, 
 however, not to the citizen. We do not say, — "because they 
 are imaginary, it will be well to commit them in spite of public 
 opinion and the laws." 
 
 * It is proper to observe, however, that negative oflFences do not in- 
 spire the same degree of alarm, and that they are very difficult to prove. 
 
246 PEINCIPLES OF THE PENAL CODE. 
 
 Imaginary offences are, 1 st. Offences against laws which im- 
 pose religious belief, or religious practices. 2nd. Offences which 
 consist in mating innocent bargains, bargains forbidden by the 
 laws for false reasons ; usury, for example. 3rd. The offence of 
 an artist or other person emigrating from his native country. 
 4th. Offences which consist in the violation of prohibitive rules 
 of which the effect is to fetter one class of citizens for the benefit 
 of another, such as a prohibition to export wool, intended to 
 favour, the manufacturer at the expense of the farmer. 
 
 "We shall see hereafter that so far as the public is concerned, 
 offences which originate in the sexual appetite, when there is 
 neither violence, fraud, nor interference with the rights of otheijs, 
 and also offences against one's self, may be arranged under this 
 head. 
 
 CHAPTEE IV. 
 
 Evil of the Second Order. 
 
 The alarm which different offences inspire is susceptible of many 
 degrees, from disquiet up to terror. 
 
 But does not the more or less of alarm depend on the imagina- 
 tion, the temperament, age, sex, position, experience ? Can we 
 calculate beforehand effects which vary with so many causes? 
 Has alarm so regular a progress that its degrees can be measured s 
 
 Though that which is subject to the imagination, a faculty so 
 changeable and so fantastic, cannot be reduced to rigorous 
 precision, yet the general alarm produced by different offences, 
 follows proportions sufficiently constant, and capable of being 
 determined. Alarm is greater or less, according to the following 
 circumstances.* 
 ■ 1st. The greatness of the evil of the first order. 
 
 2nd. The intention of the delinquent. 
 
 3rd. The position which has furnished him an opportunity to 
 commit the offence. 
 
 * All these circumstances, except tlie first and last, have this in com- 
 mon, that they render the repetition of the offence more probable. 
 
rBINCITLES OF THE VENAL CSBE. 2^7 
 
 4th. His motive. 
 
 Stli. The greater or less, facility of prevetting like offences. 
 
 6th. The greater or less facility of concealing them, and of 
 escaping punishment. 
 
 7th. The character of the delinquent. To this head belong 
 relapses. 
 
 8 th. The condition of the individual injured, by virtue of 
 . which those in a like condition may or may not feel the impression 
 of fear. 
 
 It is in the examination of these circumstances that -we shaU. 
 find the solution of the most interesting problems of penal juris- 
 prudence. 
 
 CHAPTER V. 
 
 JEkil of the first Order. : 
 
 The evil of the first order resulting from an offence may he esti- 
 mated according to the following rules : — 
 
 1st. The evil of a complex offence wiU be greater than that of 
 either of the simple offences into which it can be resolved. 
 
 A perjury, of which the effect shall be to cause the punishment 
 of an innocent person, wiH' produce more evil than a perjury 
 which procures the discharge of a guilty one. In the former 
 case there is a private offence combined with the public offence j 
 in the latter case there is only a public offence. 
 
 2nd. The evil of a demi-publio or public offence, which evil 
 propagates itself, will be greater than the evil of a-private offende 
 of the same kind. It is a greater evil to carry a pestilence into 
 • a whole continent, than into some small island with few inha- 
 bitants, and little frequented. It is this tendency to spread, in 
 which consists the particular enormity of arson and inundation. 
 
 3rd. The evil of a demi-public or public offence, which, instea'd 
 of multiplying itself, tends constantly to subdivision, wiU be less 
 than that of a j)rivate pffenee of the same denomination. If the 
 public treasury be robbed, the. evil of the first order will bfe less 
 
248 PEINCIPLES OF THE PENAL CODE. 
 
 than in the case of an equal robbery committed upon an indi- 
 vidual^ for the evil which the individual has suffered can be 
 made up by granting him at the public expense an indemnity 
 equivalent to his loss. This being done, things will be brought 
 to the same state as if the theft, instead of being committed upon 
 Paul or Peter, had been directed against the public treasury.* / 
 
 Offences against property are the only ones susceptible of this 
 repartition ; and the evil of these offences is diminished in pro- 
 portion as it is distributed among a greater number, and as the ; 
 individual sufferers are richer. 
 
 4th. The total evil of an offence is increased, if there result 
 from it a consequential evU to the same individual. If in con- 
 sequence of an imprisonment, or a wound, you have lost a place, 
 a marriage, a lucrative business, it is plain that these losses are a 
 net addition to the primitive evil. 
 
 5th. The total evil of an offence is increased, if there result 
 from it a derivative evil, which falls upon some other person. If 
 in consequence of a wrong done to you, your wife or your chil- 
 dren feel the miseries of want, this is an incontestable addition to 
 -the primitive evil. 
 
 Besides these rules, which enable us to estimate the evil of the 
 first order, we must take the aggravations into account; that is, 
 the particular circumstances which augment the evil. "We shall 
 presently exhibit a complete table of them, founded upon the 
 following principles: — 
 
 1st. Augmentation of evil resulting from an extraordinary 
 jportion of physical pain, not of the essence of the offence. Addition 
 lO/ Physical pain. 
 
 2nd. Augmentation of evil by a circumstance which, to the 
 essential evil of the offence, adds the accessary evil of terror. 
 Addition of terror. 
 
 3rd. Augmentation of evil from some extraordinary circum- 
 stances of ignominy. Addition of disgrace. 
 
 * But though, in a case like this, the evil of the first order is less, it is 
 not BO with the evil of the second order — that is, the alarm. But this 
 will be considered in its proper place. 
 
PEINCIPLBS OF THE PENAL CODE. 24& 
 
 4th. Augmentation of evil from tie irreparable nature of the 
 damage. Irreparable damage. 
 
 '5th. Augmentation of evil arising from the extraordinary sen- 
 sibility of the individual injured. Aggravation of suffering. 
 
 These rules are absolutely necessary. "We must be able to cal- 
 culate the evil of the first order, because in proportion to its 
 apparent or real value, alarm will be greater or less. The evil of 
 the second order is only a reflection of the evil of the first order. 
 Other circumstances, however, modify the alarm. 
 
 CHAPTER VI. 
 
 Of Intention. 
 
 "Whethek a man commits an offence knowingly and willingly 
 or unwillingly and undesignedly, the immediate evil is exactly 
 the same. But the alarm which results is very different. "We 
 regard him who has done an evil with knowledge and design, as a 
 bad and dangerous man. He who has done an evil without 
 designing and without knowing it, is looked upon as a man to be 
 feared only by reason of his inadvertence or his ignorance. 
 
 The security felt by the public, notwithstanding the commis- 
 sion of an offence, when the act was unintentional, is not sur- 
 prising. Observe the circumstances of the act. The delinquent 
 had no design to put himself in opposition to the law. He has 
 either committed the offence because he lacked a motive to 
 abstain from it, or it resulted from an unfortunate concourse of 
 circumstances ; it is an isolated and fortuitous fact, which has 
 no tendency to produce a repetition of itself. But an offence in- 
 tentionally committed is a permanent cause of evil. We see in 
 what the delinquent has done what he wishes to do, and what 
 he is able to do again. His past conduct is a prognostic of his 
 future conduct. Beside the idea of a villain saddens and frightens 
 us. It recalls to our minds that dangerous and mischievous class 
 which surrounds us with secret snares, and carries on its conspi- 
 racies in silence. 
 
. 250 PEINOIPIES OP THE PENAL CODE. 
 
 The people, guided by a just instinct, almost always say of 
 an unintentional offender that he is more deserving of pity than 
 , of blame. In fact, a man of no more than ordinary sensibility 
 cannot but experience the most lively regrets at evils of which 
 he is the innocent cause. He needs consolation rather than 
 punishment. He is even less to be feared than any other man ; 
 his regrets for the past furnish, a particular security for the 
 future. 
 
 Beside, an offence committed without intention holds out the 
 hope of indemnity. "WTien a delinquent expects to encounter 
 punishment, he takes precautions to cover himseK against the 
 law; an innocent man acts openly, and will not think of refiising 
 a legal reparation. 
 
 Such is the general principle. Its application is a matter of 
 considerable difficulty. To become well acquainted with all the 
 characteristics of intention, it is necessary to examine all ,t];ie 
 different possible states of mind at the moment of action, as 
 respects design and knowledge ; and how numerous are the pos- 
 sible modifications of the understanding and the will ! 
 
 An archer shoots an arrow on which is written, " Por Philip's 
 left eye;" the arrow strikes Philip's left eye. Here is an inten- 
 tion corresponding exactly to the fact. 
 
 A jealous husband surprises his rival, and to perpetuate his 
 vengeance, mutilates him. The operation produces death. In 
 this case the intention to kill was not fall and absolute. 
 
 A hunter sees a deer and a man close together. He really 
 thinks that he cannot shoot at the deer without danger to the 
 man. However, he shoots ; an(i the man is killed. In such a 
 case the killing was voluntary, but the intention to kUl was only 
 indirect. 
 
 As to the relation of the understanding to the different circum- 
 stanpes of an action, it may be in three states : knowledge, igno- 
 raneej misinformation. You may know that a beverage is a 
 poison; you may know nothing about it; you may think it 
 can do -only a trifling injury, or that it is, in certain cases, a 
 remedy. 
 
PEINCIPLES OF THE P£lf4i CODE. 251 
 
 Such are the preliminaries for settling the question of inten- 
 tion. I shaU not attempt at present to enter further into thin 
 difficult subject. 
 
 CHAPTER VII. 
 
 Position of the Delinquent ; its Effect upon Alarm. 
 
 Theke are offences which anybody may commit'; there are others 
 dependent upon a particular position which furnishes the delin- 
 quent an occasion for the offence. 
 
 This latter circumstance tends, in general, to diminish the 
 alarm by contracting its sphere. 
 
 A larceny produces a general alarm. An act of peculation 
 Qommitted by a guardian upon his ward produces hardly any. 
 
 "Whatever might be the alarm caused by the extortions of an 
 officer of the police, a contribution levied by robbers upon the 
 highway produces terror infinitely greater. "Why? Because 
 everybody sees that an extortioner in place, however rapacious, 
 still has some restraints and some limits. He must have occa- 
 sions and pretexts to abuse his power; whUe robbers on the 
 highway threaten all the world, at all times, and are not at all 
 controlled by public, ppinion. 
 
 This circumstance has the same sort of influence upon other 
 kinds of offences, such as seduction and adultery. You cannot 
 seduce the first woman you meet, as you might rob her. Such 
 an enterprise requires an intimate acquaintance, a certain cor- 
 respondency of rank and fortune — in one word, the advantage of 
 a particular position. 
 
 Of two homicides, one committed to secure an inheritance, the 
 other as a means Of robbery ; the first evinces a more atrocious 
 character, but the second excites the greater alarm. The man 
 who feels confident of the good disposition of his heirs experiences 
 no sensible terror at the first event ; but what security can he 
 have against robbers? The villain who commits a murder to 
 make sure of an inheritance is not likely to change into aHgh' 
 
252 PHINCIPLES OF THE PENAL COBE. 
 
 way assassin. He mil hazard a danger for the sake of an estate 
 which he would not risk for a few crowns. 
 
 This same observation may be extended to all offences which 
 imply a violation of deposit, an abuse of confidence, or a misuse 
 of power, whether public or private. They cause less alarm in 
 proportion as the situation of the delinquent is more peculiar, the 
 number of persons in similar situations smaller, and the sphere of 
 the offence more limited. 
 
 However, there is one important exception. If the delinquent 
 is clothed with great powers ; if he envelopes in his sphere of 
 action a great number of persons ; his situation, though peculiar, 
 increases the circuit of alarm instead of diminishing it. Let a 
 judge undertake to rob, to kill, to tyrannize ; let a military officer 
 make it his business to plunder, to vex, to shed blood ; the alarm 
 they will excite, being proportioned to the extent of their powers, 
 may surpass that of the most atrocious robberies. 
 
 In these elevated positions, alarm may be created even without 
 offence. A simple mistake without bad intention may cause the 
 most lively terror. Is an innocent man condemned to death by 
 an honest but ignorant judge ? The moment this mistake is 
 known the public confidence is wounded, the shock is everywhere 
 felt, and inquietude reaches the highest point. 
 
 Fortunately, this kind of alarm may be arrested at once, by 
 the displacement of incompetent officer. 
 
 CHAPTEE VIII. 
 The Influence of Motives upon the greatness of Alarm. 
 
 Ip the offence in question proceeds from a particular motive, rare, 
 and belonging to a class of motives small in number, the alarm 
 will have little extent. If it proceeds from a motive common, 
 frequent, and powerful, the alarm wiU have a greater extent, 
 because a greater number of persons will feel themselves to be in 
 danger. 
 
 Compare the results of an assassination committed by a robber, 
 
PBINCiPLES OP THE PENAL COrE. "J^S 
 
 ■with, those of an assassination committed for revenge. In the 
 first case, the danger is regarded as almost nniversal ; the second 
 is a crime which terrifies those only who have enemies, and enemies 
 whose hatred has reached an uncommon pitch of atrocity. An 
 offence which grows out of a party quarrel causes a greater alarm 
 than the same offence when produced by private hostility. 
 
 Towards the middle of the last century, there existed ia Den- 
 mark and a part of Germany, a religious sect whose principles 
 were more frightful than the blackest passions. According to 
 these fanatics, not good actions, but repentance, was the surest 
 means of gaining heaven ; and the efficacy of repentance would 
 be the greater the more it absorbed all the faculties. "Now, the 
 more atrocious was the crime, the greater certainty there was of 
 giving to remorse an expiatory force sufficiently energetic. Upon 
 the strength of this logic, a madman sought to merit salvation 
 and a hanging, by the murder of an infant 6hild. If this sect 
 had been able to maintain itself, the human race would have come 
 to an end.* 
 
 Motives are commonly spoken of as good or had. This is an 
 error. Every motive, in the final analysis, is the perspective of 
 a pleasure to be procured, or of a pain to be avoided. Now the 
 same motive, which in certain cases leads to the performance of 
 an action esteemed good, or indifferent, may lead in other cases 
 to an action reputed to be bad. A beggar steals a loaf; another 
 person buys one ; a third works, that he may get the means to 
 buy. The motive which actuates all three, is one and the same, 
 to wit, the physical pain of hunger. A pious man founds a hos- 
 pital for the poor, another goes on a pilgrimage to Mecca, a third 
 assas^ates a prince whom he thinks to be a heretic ; their motive 
 may be exactly the same, — the desire of conciliating the Divine 
 fevour, according to the different opinions which theiy have formed 
 
 * I have somewhere read that the great Frederic, when the first in- 
 Btance of this fanaticism made its appearance in Prussia, ordered the 
 assassin to be shut up in a madhouaei He thought putting him to death 
 would be rather a reward than a punishment. This was enough to put 
 a stop to the crime. 
 
2o4 PltlNCIPLES OP IHE PENAL CODE. 
 
 of it. A geometrician lives in an austere retreat, and gives himself 
 up to tlie profoundest labours ; a man of the world ruins himself 
 and a multitude of creditors by excessive expenditures ; a prince 
 undertakes a conquest, and sacrifices myriads of men to his pro- 
 jects; an intrepid ■warrior rouses the courage of a beaten people, 
 and triumphs over an usurper ; — all these men may be animated 
 by a motive exactly the same, the love of reputation. 
 
 In this way, we might examine all motives, and we should 
 perceive that each of them may give birth to actions the most 
 laudable, or the most criminal. Motives then ought not to bo 
 regarded as exclusively good or bad. 
 
 However, in considering the whole catalogue of motives, that 
 is, the whole catalogue of pleasures and pains, we may classify 
 them according to the tendency which they seem to have to unite 
 or to disunite the interests of the individual and' of the community. 
 Upon this plan-, motives may be distinguished into four classes, — 
 the pwrely social motive, benevolence ; semi-social motives, the love 
 of reputation, the desire of friendship, religion; antisocial motives, 
 antipathy in all its branches ; personal motives, pleasures of sense, 
 love of power, pecuniary interest, the desire of self-preservation. 
 
 The personal motives are the most eminently useful, the only 
 ones whose action can never be suspended, because nature has 
 intrusted to them the preservation of individuals. They are the 
 great wheels of society ; but their movements must be regulated, 
 moderated, and maintained in a right direptibn, by motives drawn 
 from the two first classes. 
 
 It must not be forgotten that even the anti-social motives — 
 necessary, to a certain degree,' for the defence of the individual 
 — may, and often do, produce useful actions, actions absolutely 
 necessary to the existence of society ; for example, the denounce- 
 ment and prosecution of criminals. < 
 
 Another classification of motives may be made, by considering 
 their more common, tendency to produce good or bad effects. The 
 social and demi-social motives may be called tutelary motives ; the 
 anti-social and personal may be denominated seductive motives. 
 These denominations m^ist not be taken in a rigorous sense, but ' 
 
PIUNCIPLES OF THE PENAL COBE. 255 
 
 tSey are not mthbut justice and truth. ; for -whenever there is a 
 conflict of motives acting in opposite directions, it is found that 
 the Social and demi-social motives generally operate in conformity 
 "vvithutUity, while the anti-social and personal motives are those 
 which tend the other way. 
 
 ■ Without entering into a deeper investigation ,of motives, let us 
 stop at that point in which the legislator is interested. To judge 
 an action it is necessary to look first to its effects abstracted from 
 everything else. The effects being well ascertained, we may in 
 certain cases ascend to the motive, in order to discover its influ- 
 ence on the greatness of the alarm, but without giving any atten- 
 tion" to the good or bad quality which its common name implies.* 
 Por the most approved motive cannot transform a pernicious action 
 into an action useful or indifferent ; nor can a motive the most 
 reprobated transform a useful action into a bad one. AH 
 that the motive can do is to raise or lower the moral quality of 
 the action. A good action prompted by a.futelary motive becomes 
 better; a bad action founded on a seductive motive is so much the 
 worse. Let us apply -this theory to practice. ■ A motive belong-* 
 ing to the seductive class is no offence in itself, but it may form a 
 means of aggramation. A. motive of the tutelary class wiU liot 
 have the effect to justify or to excuse, but it may serve to diminish' 
 
 * What I mean by the common names of motives are those names which' 
 carry with thein an idea of approbation or disapprobation. A nenter 
 name is that which expresses the motive without any association of" 
 blame or praise ; for example, pecurviwry interest, love of power,, desire of 
 friendship orfamov/f, whetJier of God or man,cii/riosity, love of reputation, 
 pa/in from the infUcUon of an injv/ry, desire of self -preservation. But these 
 motives have common names, as avarice, cupidity, ambition, vanity, 
 vengeance, animosity, &c. When a motive bears a name of reprobation, ' 
 it seems contradictory to maintain that any good can result froni it ; if 
 it bears a name of favour it seems equally contradictory to suppose it can 
 result in evil. Almost all moral disputations rest upon this foundation 
 of ambiguity. To out them np by the roots, it is only necessary to give 
 neuter names to motives. We can then go on with the examination of 
 their effects, without being disconcerted by the common association of 
 ideEis, 
 
266 PEINCIPLES OP THE' PENAL CODE. 
 
 the necessity of a punishment ; in other words, it forms a ground 
 of extenuation. 
 
 Let us recollect that there is no room for considering the motive 
 except when it is manifest and palpable. It would often be very 
 difficult to discover the true or dominant motive, when the action 
 might be equally produced by different motives, or where motives 
 of several sorts might have co-operated in its production. In the 
 interpretation of these doubtful cases it is necessary to distrust 
 the malignity of the human heart, and that general disposition to 
 exhibit a brilliant sagacity at the expense of good nature. "We 
 involuntarily deceive even ourselves as to what puts us into action. 
 In relation even to our own motives we are wilfully blind, and 
 are always ready to break into a passion against the oculist who 
 desires to remove the cataract of ignorance and prejudice. 
 
 CHAPTER IX. 
 
 Facility or Difficulty of Preventing Offences. Their Influence on 
 
 Alarm. 
 The mind sets itself at once to examine the means of attack and 
 the means of defence, and according as the offence is judged more 
 or less easy to be consummated, our inquietude is greater or less. 
 This is one of the reasons which raises the evil of an act of robbery 
 so far above that of a theft. Force can effect many things which 
 would be beyond the reach of stratagem. Eobbery directed 
 against a dwelling-house is more alarming than robbery on the 
 highway ; that done by night is more terrifying than that done in 
 the day-time ; that which is combined with arson than that which 
 is limited to ordinary means. 
 
 On the other hand, the greater facUity we see in repelling an 
 offence, the less alarming it appears to us. The alarm cannot be 
 very great when the off'ence cannot be perpetrated except with the 
 consent of him who suffers by it. It is easy to apply this prin- 
 ciple to cases of fraudulent acquisition, seduction, duels, and to 
 offences against one's self, particularly suicide. 
 
TEINCIPLES OP THE PENAL CODE. 257 
 
 The rigour of laws against domestic theft has doubtless ori- 
 ginated in the difficulty of guarding against it. But the aggra- 
 vation which results from that circumstance is not equal to the 
 effect of another circumstance which tends to diminish the alarm, 
 to wit, the peculiarity of position necessary to furnish occasion 
 for the theft. The domestic thief once known is no longer dan- 
 gerous. He needs my consent to plunder me ; I must introduce 
 him into my house and give him my confidence. "When it is so 
 easy to guard against him, he can inspire only a very feeble 
 alarm.* 
 
 CHAPTEE X. 
 
 Effect produced upon Alarm ly greater or less Facilities for 
 Secrecy. 
 
 The alarm is greater when by the nature or the circumstances of 
 the offence it is more difficult to discover it or to find out its 
 author. If the delinquent remains unknown, his success is an 
 encouragement to him and to others ; there seems no limit to the 
 impunity of similar offences, and the injured party loses the hope 
 of indenmity. 
 
 There are offences which admit particular precautions adapted 
 to secrecy, such as a disguise, the choice of the night as the time 
 of action, and anonymous, threatening, extorsive letters. 
 
 There arO; also distinct offences which are committed to render 
 the discovery of other offences more difficult. Persons are impri- 
 soned, abducted, or murdered for the sake of suppressing their 
 testimony. 
 
 In cases where by the nature of the offence the author must be 
 known, the alarm is considerably diminished. Thus a personal 
 ipjury, resulting from some momentary transport of passion, ' 
 excited by the presence of an enemy, inspires less alarm than a 
 
 * The principal reason against severity of punishment in this case is, 
 that it gives masters a repugnance to prosecute, and of course favours 
 impunity. 
 
 fj' 8 
 
258 PRINCIPLES OF THE PENAL CODE. 
 
 tteft which affects concealment, althougli the evil of the first 
 order may be greater in the former case than in the latter. 
 
 CHAPTER XL 
 
 Effect of the Delinquent's Character upon Alarm. 
 
 The character of the delinquent will be presumed from the 
 nature of the offence, especially from the magnitude of the evil 
 of the first order, which is the most apparent part of it. Other 
 presumptions wiU be furnished by circumstances and details 
 attending the perpetration of the offence. 
 
 The character of a man will appear more or less dangerous, 
 according as the tutelary motives appear to have more or less 
 empire over him, as compared with the seductive motives. 
 
 There are two reasons why character ought to exert an influ- 
 ence upon the choice and the quantity of the punishment ; first, 
 because it augments or diminishes the alarm ; secondly, because 
 it furnishes an index of sensibility. There is no need of em- 
 ploying such strong means to restrain a character, weak, but 
 good at bottom, as would be necessary in case of an opposite 
 temperament. 
 
 The grounds of aggravation which may be derived from this 
 source are as follows : — 
 
 1st. The less an injured party is capable of defending himself, 
 the stronger ought to be the natural sentiment of compassion. 
 The law of honour, coming to the support of this instinct of pity, 
 makes it an imperious duty to be tender with the feeble, and to 
 spare those who cannot resist. The first index of a dangerous 
 character is oppression of the weah. 
 
 2nd. If weakness alone ought to excite compassion, the sight 
 of suffering ought to act in that direction with a yet stronger 
 force. A refusal to succour misfortune forms of itself a presump- 
 tion little favourable to character. But what shall we think of 
 him who selects the moment of distress to add new anxieties to 
 an afflicted spirit, to render a disgrace more bitter by a new 
 
PRINCIPLES OP THE PENAL CODE. 259 
 
 affront, or to complete the plunder of suffering poverty ? The 
 second index of a demgerous character is aggravation of distress. 
 
 3rd. It is an essential branch of moral police, that those who 
 have been able to foim superior habits of reflection, those in 
 whom greater wisdom and experience can be presumed, should 
 obtain the regard and the respect of those who have not been 
 able, in the same degree, to acquire habits of reflection, and the 
 advantages of education. This kiad of superiority is commonly 
 met with among the most distinguished citizens, in comparison 
 with the less elevated, among the old men and the more aged of 
 the same rank, and in certain professions consecrated to public 
 instruction. There have been formed among the mass of the 
 people sentiments of deference and of respect, relative to these 
 distinctions : and this respect, which is of the greatest use in 
 repressing without effort the seductive passions, is one of the 
 most solid foundations of morals and of laws. The third index 
 of a dangerous character is disrespect towwrds superiors. 
 
 4th. When the motives which have led to crime are compara- 
 tively light and trifling, it is evident that the sentiments of 
 honour and benevolence have very little force. If that man is 
 esteemed dangerous who is pushed by an imperious desire of 
 vengeance to transgress the laws of humanity, what shall be 
 thought of him who gives himself up to acts of cruelty out of a 
 mere motive of curiosity, imitation, or amusement ? The fourth 
 index of a dangerous character is gratuitous cruelty. 
 
 5th. Time is particularly favourable to the development of 
 the tutelary motives. At the first assault of a passion, as at the 
 first blast of a stprm, the sentiments of virtue may bend for a 
 moment ; but if the heart is not perverted, reflection presently 
 restores their former force, and leads them back in triumph. If 
 a considerable space of time has elapsed between the project of a 
 crime and its accomplishment, it is an unequivocal proof of a 
 ripe and settled wickedness. The fifth index of a dangerous 
 character is premeditation. 
 
 6th. The number of accomplices is another mark of depravity. 
 This concert supposes reflection, and a sustained and continuous 
 
 s 2 
 
360 njINCTPLES OF THE PENAL CODE. 
 
 plan. Besides, the union of several against one is the double 
 mark of cruelty and of cowardice. The sixth index of a dan- 
 gerous character is conspiracy/. 
 
 To these grounds of aggravation may be added two others less 
 easy to classify — falsehood, and violation of confidence. 
 
 Falsehood impresses a deep and degrading blot upon the 
 character, which even brilliant qualities cannot efface. In this 
 respect public opinion is just. Truth is one of the first wants of 
 man ; it is one of the elements of our existence ; it is as necessary 
 to us as the light of day. Every instant of our lives we are 
 obliged to form judgments and to regulate our conduct according 
 to facts, and it is only a small number of these facts which we 
 can ascertain from our own observation. There results an abso- 
 lute necessity of trusting to the reports of others. If there is in 
 these reports a mixture of falsehood, so far our judgments are 
 erroneous, our motives wrong, our expectations misplaced. "We 
 live in restless distrust, and we do not know upon what to put 
 dependence. In one word, falsehood includes the principle of 
 every evil, because in its progress it brings on at last the disso- 
 lution of human society. 
 
 The importance of truth is so great, that the least violation of its 
 laws, even in frivolous matters, is always attended with a certain 
 degree of danger. The slightest deviation from it is an attack 
 upon the respect we owe to it. It is a first transgression which 
 facilitates a second, and familiarizes the odious idea of false- 
 hood. If the evil of falsehood is so great in things which are 
 themselves of no consequence, what must it be upon those more 
 important occasions, when it serves in itself as the instrument 
 of crime ? 
 
 Falsehood is a circumstance sometimes essential to the nature 
 of an offence, and sometimes simply accessory. It is necessarily 
 involved in perjury, and in fraudulent acquisition under all its 
 modifications. In other offences it is collateral and accidental. 
 It is only in relation to these latter offences that it can furnish a 
 separate grouiid of aggravation. 
 
 Violation of Confidence has reference to a particular position, to 
 
PB.INCIPLES 0? THE PENAL CODE. 36] 
 
 an intrusted power wHch imposes upon tlie delinquent som( 
 strict obligation which he has violated. It may he considerec 
 sometimes as the principal offence and sometimes as an accessor] 
 offence. It is not necessary to enter here into details. 
 
 There is one general remark which may be made upon all thes( 
 grounds of aggravation. Though they aU. furnish indioationi 
 unfavourable to the character of the delinquent, that is no reasoi 
 for a proportionate augmentation of punishment. It wUl b( 
 sufficient to modify it in a certain way analogous to the attending 
 aggravation, and so as to excite in the minds of the citizens i 
 salutary antipathy against the aggravating circumstance. Bu 
 this wUl become more clear when we treat of the means of ren 
 dering punishments characteristic* 
 
 Let us now pass to the extenuations, which may be derivec 
 from the same source of character, and which should have ai 
 effect to diminish punishment. I give this name to circumstancei 
 which furnish a favourable indication with respect to the cha 
 
 * We may here propose a question interesting to the moralist and thi 
 legislator : — If an individual indulges in actions whicli the public opinioi 
 condemns, but which, according to the principles of utility, it ought no 
 to condemn, can we deduce from this circumstance an indication un 
 favourable to his character ? 
 
 I answer, that a virtuous man, though he submits in general to th( 
 tribunal of public opinion, may still vindicate his independence in par 
 tioular c&ses, in which he thinks the judgment of that tribunal contrary 
 to reason and his own happiness ; or where it demands a sacrifice painfu 
 to him, and of no real use to anybody. Take a Jew at Lisbon for example 
 he dissembles, he violates the laws, he braves an opinion which has all th( 
 force of popular sanction in its favour, and is he therefore the worst o 
 men ? Shall he be thought capable of all crimes ? Would he calumniate 
 rob, and commit perjury if he had a hope of doing it with impunity ? No 
 a Jew in Portugal is no more given to these oflFenoes than elsewhere. — 
 Let a monk permit himself secretly to violate some of the absurd an( 
 painful observances of his convent, does it follow that he is a false ani 
 dangerous man, ready to violate his word upon a point where probity i 
 involved? This conclusion would be quite unfounded. Simple gooc 
 sense, enlightened by self-interest, is often able to explode a genera' 
 error, without leading on that account to a contempt of essential laws. 
 
363 PEINCIPLES Oi" THE PENAL CODE. 
 
 racter of the delinquent, and whioli tend in consequence to lessen 
 tlie alarm. They may he reduced to nine : — 
 
 1st. Absence of bad intention. 
 
 2nd. Self-preservation. 
 
 3rd. Provocation. 
 
 4tlL. Preservation of some near friend. 
 
 5tb. Transgression of the limit of self-defence. 
 
 6th. Submission to menaces. 
 
 7th. Submission- to authorit^i 
 
 8th. Drunkenness. 
 
 9th. Childhood. 
 
 It is a point common to these circumstances, except the two 
 last, that the offence does not originate in the will of the delin- 
 quent. The primary cause is the act of another, the will of 
 another, or some physical accident. Aside from that event, the 
 offender would not have dreamed of the offence ; he would have 
 remained entirely innocent ; and, even though he should not be 
 punished, his future conduct would still be as good as if he had 
 not committed the offence. 
 
 Each of the circumstances above enumerated demands details 
 and explanations ; but I shall confine myself here to the observa- 
 tion that the judge must be allowed a great latitude in appre- 
 ciating the validity and extent of these different grounds of 
 extenuation. 
 
 Does the question relate to a provocation ? A provocation, to 
 deserve indulgence, must be recent ; it must have been received 
 in the course of the same quarrel. But what constitutes the 
 same quarrel ? "What ought to be looked upon as a recent injury ? 
 It is necessary to trace lines of demarcation. Let not the sun go 
 down wpon your wrath, is the precept of Scripture. Sleep ought 
 to calm the transport of the passions, the fever of the senses, and 
 prepare the mind for the influence of the tutelary motives. In 
 the case of homicide, this natural period might serve to dis- 
 tinguish what is premeditated and what is the effect of sudden 
 passion. 
 
PEINCIPLES 01' THE PENAL CODE. 268 
 
 In the case of drunkenness it is necessary to examine if the 
 intention to commit the offence did not exist beforehand, if the 
 druntenness were not feigned, and if it were not designed to 
 create energy for the perpetration, Eepetition ought, perhaps, 
 to annihilate this excuse. He who knows by experience that 
 ■ wine renders him dangerous, does not merit indulgence for the 
 excesses into which it may lead him. 
 
 The English law does not admit any plea of extenuation in 
 the case of drunkenness. That would be, it is said, to excuse 
 one offence by another. This reasoning seems to be hardhearted 
 and superficial ; it springs from the ascetic principle, — that austere 
 and hypocritical doctrine which those of a certain profession think 
 themselves obliged to maintain, but which is scouted by all the 
 rest of the world. 
 
 As to childhood, we do not here speak of that tender age which 
 is not responsible for its actions, and at which punishments would 
 produce no effect. Infancy of that sort is not an extenuation ; 
 for in fact there is no offence. Such a child is not a moral agent. 
 What good would be done by punishing judicially, for the crime 
 of arson, an infant four years old ? 
 
 "Within what limits ought this ground of extenuation to be 
 restricted ? A limit sufficiently reasonable seems to be the epoch 
 at which enough of mental maturity is presumed to release a 
 person from pupilage, and to render him master of himself. 
 Before that period he is not thought to have sufficient understand- 
 ing to be intrusted with the management of his own affairs. "Why 
 should the law despair before it allows him to hope ? 
 
 It is not intended that the ordinary punishment ought neces- 
 sarily to be diminished in the case of every offence committed 
 before the age of. majority. That diminution ought to depend 
 upon all the circumstances of the case. "What is intended' is, 
 that after that epoch is passed, punishment shall no longer be 
 liable to diminution under the plea of childhood. 
 
 Infamous punishments are those which ought principally to be 
 remitted under this plea. He who has no hope of recovering his 
 reputation will hardly recover his virtue. 
 
264 PEINCIPIES OF THE PENAL CODE. 
 
 When I speak of the age of majority, I do not mean the Boman 
 majprity, fixed at twenty -five years ; because it is an injustice 
 and a foUy to retard so long the liberty of men, and to retain 
 them in the leading-strings of infancy after the fuU development 
 of their faculties. It is the English rule of twenty-one years 
 ■which I have in view. "We have seen Great Britain governed 
 for years by a minister who managed, with great reputation, the 
 infinitely complicated system of its finances, long before the age 
 at which, in the rest of Europe, he would not have been capable 
 of selling an acre of land. 
 
 CHAPTEE XII. 
 
 Cases in which there is no Alarm. 
 
 There is no alarm whatever in those cases in which the only 
 persons exposed to danger are incapable of fear. 
 
 This circumstance explains the insensibility of many nations 
 on the subject of infanticide, that is, homicide committed on the 
 person of a new -bom infant, with the consent of the parents. I 
 say with their consent, for otherwise the alanti would be almost 
 the same as if the sufferer were an adult. As the susceptibility 
 to fear is less on the part of infants, the more readily is paternal 
 tenderness alarmed on their account. 
 
 I do not justify these nations. It is a striking additional 
 mark of their barbarity that they have given to the father the 
 right of destroying the infant without the consent of the mother, 
 who, after all the dangers of maternity, is deprived of her reward, 
 and reduced by this unworthy servitude to the same state with 
 the inferior animals whose fecundity is a burden to us. 
 
 Infanticide, such as I have described it, ought not to be 
 pimished as a principal offence, since it produces no evil either 
 of the first or of the second order. But it ought to be punished as 
 an introduction to crimes, and as furnishing a proof against the 
 character of those who commit it. 
 
 It is not possible to fortify too strongly the sentiments of re- 
 
PfilNCIPLES OP THE PENAL CODE. 265 
 
 spect for humanity, or to inspire too nmch repugnance against 
 everything that conduces to cruel habits. This offence ought 
 then, to be punished by branding it with disgrace. It is com- 
 , monly the fear of shame which is its cause ; . it needs a greater 
 shame to repress it. But at the same time the occasions for 
 punishing it ought to be made very rare, by requiring for a con- 
 viction of it proofs difficult to be collected. 
 
 The laws against this offence,, under pretence of humanity, are 
 a most manifest violation of it. Compare the offence with the 
 punishment. The offence is what is improperly called the death 
 of an infant, who has ceased to be, before knowing what exist- 
 ence is, — a result of a nature not to give the slightest inquietude 
 to the most timid imagination ; and which can caijse no regrets 
 but to the very person who, through a sentiment of shame and 
 pity, has refused to prolong a life begun under the auspices of 
 misery. And what is the punishment ? — the barbarous infliction' 
 of an ignominious death upon an unhappy mother, whose very 
 offence proves her excessive sensibility ; upon a woman guided 
 by despair, who, in hardening her heart against the softest in- 
 stinct of nature, has harmed no one but herself! She is devoted 
 to infamy because she has dreaded shame too much, and the souls 
 of her surviving friends are poisoned with grief and disgrace ! 
 And if the legislator was himself the first cause of the evil, if he 
 may justly be considered as the real murderer of these innocents, 
 how still more odious does his rigour appear ! It is he alone who, 
 by severity against a weakness well entitled to indulgence, has 
 excited thafi combat of tenderness and shame, which tears the 
 mother's heart, and makes her the destroyer of her child. 
 
 CHAPTEE XIII. 
 
 Cases in which there m greater Banger than Alarm. 
 
 Thotjoh there is a general correspondency between danger and 
 alarm, there are cases in which the proportion is not exact ; the 
 danger may be much greater than the alarm. 
 
266 PHIKCIPLES Oy THE PENAL CODE. 
 
 This is the case with all mixed offences which iaclude a private 
 evil, and at the same time a danger, whence results their character 
 of public offences. 
 
 It might happen that a prince was robbed by faithless agents, 
 and the public oppressed by subaltern vexations. The accom- 
 plices in these disorders, forming a powerful phalanx, might per- 
 mit nothing but mercenary praises to reach the throne, and truth 
 might be esteemed the greatest of crimes. Timidity, under the 
 mask of prudence, would soon become the leading trait in the 
 national character. If, during this universal abjection, a virtuous 
 citizen, daring to denounce the guilty, should become the victim 
 of his zeal, his destruction would excite little alarm ; his magna- 
 nimity would appear only an act of madness ; and the citizens, 
 promising themselves not to imitate his example, would be un- 
 moved by a misfortune in their power to shun. But alarm thus 
 subsiding gives place to a greater evU : — ^the danger of impunity 
 to aU public crimes ; the cessation of aU voluntary services to 
 justice ; a profound indifferenoo for everything not personal to 
 one's self. 
 
 It is said that in some of the Italian states, those who have 
 given testimony against robbers or brigands, exposed to the 
 vengeance of their accomplices, are obliged to seek in flight a 
 security which the law does not afford. It is more dangerous to 
 lend aid to justice than to take arms against it ; a witness runs 
 more risks than an assassin. The alarm which results from this 
 state of things is not great, because aU can avoid exposure to the 
 evU ; but in proportion as alarm diminishes, danger is augmented. 
 
 CHAPTEE XIV. 
 
 Grounds of Justification. 
 
 I PEOCEED to speak of some circumstances which, in connection 
 with an offence, operate to take away its injurious quality. "We 
 may give to these circumstances the common name of means of 
 justification, or, for shortness, justifications. 
 
PEIBTCIPIES OP THE PENAI, CODE. 367 
 
 General justifications, which, apply to nearly all offences, may 
 be reduced to the following heads : — 
 1st. Consent. 
 
 2nd. Eepulsion of a greater evil. 
 3rd. Medical practice. 
 4th. Self-defence. 
 5th. Political power. 
 6th. Domestic power. 
 
 How do these circumstances furnish justifications ? "We shall . 
 see that sometimes they import proof of the ahsence of evil ; and 
 sometimes they evince that the evil has been compensated — that 
 is, that a good more than equivalent has resulted from it. The 
 question here relates to the evil of the first order ; for in all these 
 cases there is no evil of the second order. I confine myself to 
 some general observations. ' 
 
 1st. Consent. Meaning the consent of the person who suffers 
 the evil, if there is an evil. What more natural than to presume 
 that there is in fact no evil, or that it is perfectly compensated, 
 where there is such a consent ? We therefore admit the general 
 rule of the lawyers, that he who consents suffers no injwry. This 
 rule is founded upon two very simple propositions: one, that 
 every person is the best judge of his own interest; the other, 
 that no man will consent to what he thinks hurtful to himself. 
 
 This rule admits many exceptions of which the reason is pal- 
 pable; — such as coercion, fraud, concealment, a consent out of 
 date or revoked, madness, drunkenness, child,hood. 
 
 2nd. Repulsion of a greater Hvil. — This is the case in which 
 evil is done to prevent a greater evil. It is to thi? ground of 
 justification that we must refer the extreme measures which may 
 become necessary on occasions of contagious diseases, sieges, 
 famines, tempests, shipwrecks.^ 
 
 But the more serious a remedy of this nature is, the more 
 evident ought its necessity to be. The welfare of the state has 
 served as a pretext for all crimes. To give validity to this means 
 of justification, three essential points must be established — ^the 
 certainty of the evil to be avoided ; the absolute inapplicalility of 
 
268 PIUNCIPLES OF THE PENAL COBE 
 
 any means less costly; tte certain efficacy of the means em- 
 ployed. 
 
 It is hence that the justification of tyrannicide must be derived, 
 ■were tyrannicide justifiable ; but it is not; for it is not necessary 
 to assassinate a hated tyrant, it is enough to desert him, and he 
 is lost. James II. was abandoned by everybody, and the revolu- 
 tion Tvas completed without the effusion of blood. Nero himself 
 saw his power overthrown by a simple decree of the senate, and 
 the death he was obliged to inflict with his own hand was a more 
 terrible lesson for tyrantg than if it had been dealt by the dagger 
 of a Brutus. Greece boasts its Timoleon ; but we may see in the 
 perpetual convulsions by which she was agitated how iU. this 
 doctrine of tyrannicide accomplished its object. It only served 
 to irritate suspicious tyrants, and to render them ferocious in pro- 
 portion to their cowardice. "When the blow failed the vengeance 
 was frightful. If it succeeded ia popular states, factions imme- 
 diately regained all their violence, and the victorious party 
 inflicted all the evils it had feared ; in monarchies, the terrified 
 successor harboured a profound resentment; and if he became 
 oppressive, he disguised his tyranny under the plausible pretext 
 of providing for his own security. 
 
 It is said that the penetrating eye of SyUa discovered more 
 than a single Marius, in a voluptuous youth yet famous only for 
 his debaucheries. He saw the fires of the most ardent ambition 
 concealed under the most effeminate softness of manners, and he 
 regarded those dissolute pleasures only as a cover to the project 
 of enslaving his country. "Would these suspicions have autho- 
 rized him to put Caesar to death? Is it a fact, then, that an 
 assassin only need turn prophet, to justify a murder ? May an 
 impostor, who pretends to a supernatural insight into futurity, 
 immolate all his enemies for crimes not yet committed ? Under 
 pretence of avoiding an evU, this would be to produce the greatest 
 of all evils, the annihilation of general security. 
 
 3rd. Medical Practice. — This ground of justification is only a 
 subdivision of the preceding. An individual is made to suffer for 
 his own good. A man is seized with an apoplexy. Shall we 
 
PEINCIPLES OF THE PENAL CODE. 369 
 
 ■wait for his consent to bleed him ? There cannot be a doubt as 
 to the propriety of using the lancet, because it is very certain 
 that it is not the patient's wish to die. 
 
 The case is very different if a man, master of his faculties, and 
 able to consent, thinks proper to refuse it. Shall we give his 
 friends or physicians the right to force an operation which he de- 
 clines ? This would be to substitute a certain evil for a danger 
 almost imaginary. Distrust and terror would -watch by the sick 
 man's bed. If a physician, through humanity, goes beyond his 
 right, and the experiment turns out unfavourably, he ought to be 
 exposed to the rigour of the laws, and his intention, at most, 
 should only serve as an extenuation of his offence. 
 
 4th. Self-defence. — This, too, is a modification of the second 
 ground of justification. In fact, it is only the repulsion of a 
 greater evil, since even the death of an unjust aggressor is a less 
 evil for society than the suffering of an innocent person. This 
 right of defence is absolutely necessary. The vigilance of magis- 
 trates can never mate up for the vigilance of each individual in 
 his own behalf. The fear of the law can never restrain bad men 
 so effectually as the fear of the sum total of individual resistance. 
 Take away this right, and you become, in so doiag, the accom- 
 plice of all bad men. 
 
 This ground of justification has its limits. Overt acts must 
 not be employed except to defend the person or the property. To 
 answer a verbal injury by a corporal injury, 'would not be self- 
 defence ; it would be vengeance. Voluntarily to do an irrepa- 
 rable evil, merely to avoid one which might be repaired, would be 
 passing the legitimate bounds of self-defence. 
 
 But can -we defend nobody but ourselves ? Ought we not to 
 have the right of protecting our fellows against an imjust aggres- 
 sion ? Surely it is a noble movement of the heart, that indig- 
 nation which kindles at the sight of the feeble injured by the 
 strong. It is a noble movement which makes us forget our own 
 danger at the first cry of distress. The law ought to beware how 
 it enfeebles this generous alliance between courage and humanity. 
 Let him rather be honoured and rewarded who performs the 
 
370 rEMTCIPLES OS THE PENAL CODE. 
 
 function of the magistrate in favoiir of the oppressed. It concerns 
 the public safety that every honest man should consider himself 
 as the natural protector of every other. In this case there is no 
 evil of the second order ; on the contrary, all the effects of the 
 second order are good. 
 
 5th and 6th, Politicaland BomesticPower. — The exercise of law- 
 fulpower implies the necessity of doing evil to repress evil. Lawful 
 power may be divided into political and domestic. The magis- 
 trate and the father, or he who stands in the father's place, cannot 
 maintain their authority, the one in the state, and the other in 
 the family, unless they are armed with coercive means against 
 disobedience. The evil which they inflict is called punishment 
 or chastisement. The whole object of these acts is the good of 
 the great or little society which they govern ; and it is hardly 
 necessary to say that this exercise of lawful authority is a com- 
 plete ground of justification, siace no one would choose to be a 
 magistrate or a father, if he were not secure in the exercise of his 
 power. 
 
271 
 
 PART SECOND. 
 
 POLITICAL REMEDIES AGAINST THE EVIL 
 OF OFFENCES. 
 
 CHAPTER I. 
 
 Subject of this I Part. 
 
 Hating considered offences as diseases of tlie body politic, we 
 are led by analogy to regard as remedies tbe means of prevention 
 or redress. 
 
 These remedies may be arranged in four classes : — 
 1st. Preventive Eemedies. 
 2nd. Suppressive Eemedies. 
 3rd. Satisfactory Eemedies. 
 4tli. Penal Eemedies, or Punishments. 
 
 Preventive Remedies are means which tend to prevent offences. 
 They are of two kinds : direct means, which have an immediate 
 application to such or -such an offence in particular; indirect 
 means, which consist in general precautions against an entire 
 class of offences. 
 
 Suppressive Remedies are means which tend to put a stop to 
 an offence already begun, an offence in progress, but not com- 
 pleted, and 80 to prevent the evil, or at least a part of it. 
 
 Satisfactory Remedies consist of reparations or indemnities, 
 secured to those who have suffered from offences. 
 
 Penal Remedies or Punishments are also useful ; for after a 
 stop has been put to the evil, after the party injured has been 
 
273 PMNCIPIES OF THE PENAL CODE. 
 
 indemnified^ it still remains to prevent like offences, whether 
 on the part of the same offender or of others. There are two 
 ways of arriving at that end ; one to correct the wiU, the other 
 to take away the physical power. To take away the inclination 
 to repeat the act, is reformation ; to take away the power, is in- 
 capacitation, A remedy which operates by fear is called a pun- 
 ishment, whether or not it produces a physical incapacity depends 
 upon its nature. 
 
 The principal end of punishments is to prevent like offences. 
 What is past is but one act ; the future is infinite. The offence 
 already committed concerns only a single individual; similar 
 offences may affect all. In many cases it is impossible to redress 
 the evil that is done ; but it is always possible to take away the 
 will to repeat it ; for however great may be the advantage of the 
 offence, the evil of the punishment may be always made to out- 
 weigh it. 
 
 These four kinds of remedies sometimes require as many 
 separate operations ; sometimes the same operation suffices for 
 the whole. 
 
 In this part I shall treat of direct preventive remedies, sup- 
 pressive remedies, and satisfactory remedies; the third part wiU 
 treat of punishments ; in the fourth part will be considered the 
 indirect means of preventing offences. 
 
 CHAPTER 11. 
 
 Direct means of preventing Offences, 
 
 Before an offence is committed, it may give warning of its 
 approach in raany ways; it passes through a train of prepara- 
 tions which often allow it to be arrested before it reaches its 
 catastrophe. 
 
 This part of police may be exercised either through functions 
 assigned to all individuals alike, or by special powers intrusted 
 to authorized persons. 
 
 The powers given to all the citizens for their protection are 
 
TEINCIPLES or lEE PENAL OOUE. 373 
 
 those which are exercised before justice takes cognizance of the 
 matter, and which may be called, on that accoutit, ante-judicial 
 means. Such is the right to oppose open- force to the execution 
 of an apprehended offence ; to seize a suspected person • to guard 
 him; to carry him before a magistrate ; to call in aid; to seques- 
 ter into responsible hands articles believed to be stolen, or those 
 the destruction bfwhich it is desired to prevent; to summon the 
 bystanders as witnesses ; to require the passers-by to assist in 
 carrying before the magistrates those who are suspected of bad 
 designs. 
 
 The obligation of lending themselves to this service may be 
 imposed upon all the citizens, and its fulfilment should be strictly 
 required, as one of the most important duties of society. It wiU 
 even be proper to establish rewards for those who may have aided 
 to prevent an offence, or who have assisted to deliver the guilly 
 into the hands of justice. 
 
 Is it said that these powers may be abused, and that unprin^ 
 cipled people may employ them to obtain assistance in an act of 
 mere outrage? This danger is imaginary.' The affectation of 
 order and publicity would be quite unsuited to such views, .and 
 would too manifestly expose to punishment. . There is not much 
 danger in granting rights which cannot be exercised but at the 
 risk of suffering the legal consequences in case of their misap- 
 plication. To refuse justice the aid which it might receive from 
 these means would be to suffer an irreparable evil, through fear 
 of an evil which carries with it its own redress. 
 
 Besides those powers which ought to appertain to every citizen, 
 there are others, which should be confined to the magistrate, and 
 which may be very useful in preventing apprehended offences. 
 
 1st. Admonition. — This is a simple intimation, given, however, 
 by a judge, warning the suspected individual that he is watched, 
 and recalling him to his duty by a respectable authority. 
 
 2nd. Threats. — This is the same means reinforced by a menace 
 of the law. In the first case, it is the persuasive voice of a 
 father; in the second, it is a magistrate whose severe rebuke 
 intimidates. 
 
274 PEINCIPLES OP THE iPENAt CODE. 
 
 3rd. Exacting a Promise to Iceep away from a certain place. — 
 This means, applicable to the prevention of many offences, is 
 particularly so to quarrels, to personal injuries, and to seditious 
 plots. 
 
 4tli. Partial Banishment. — A prohibition to the suspected 
 person to go into the presence of the threatened party ; to be 
 found in the neighbourhood of his house ; or in any other place 
 adapted to become the theatre of the apprehended offence. 
 
 5th. Security. — The obligation to furnish sureties, who are 
 bound to forfeit a certain sum in case the required limits be passed 
 over. 
 
 6th. The establishment of guards or watchmen for the protec- 
 tion of the person or property in danger. 
 
 7th. Sei%ure of arms or other implements designed to assist in 
 the execution of the apprehended offence. 
 
 Besides these general means, there are others ■which may be 
 specially applied to certain offences ; but I shall not enter here 
 into these details of police and administration. The choice of 
 these means, the occasion and the manner of applying them, 
 depend upon a great number of circumstances ; they are besides 
 sufficiently simple, and almost always indicated by the nature of 
 the case. If the question relates to a defamatory writing, it should 
 "be seized before publication ; if it relates to things to be eaten or 
 'drunk, or to medicines of a dangerous nature, they ought to be 
 •destroyed before being put to use. Judicial visits and inspections 
 are proper means to prevent frauds, clandestine acts, and offences 
 of contraband. 
 
 This kind of cases seldom admits of precise rules. Somethiug 
 must be left to the discretion of public officers and judges. But 
 the legislator ought to give such instructions as will prevent 
 arbitrary abuses. 
 
 These instructions should rest upon the foUowing maxims. 
 The more rigorous is the means, the more scrupulous we ought 
 to be as to its use. Greater liberties may be taken in proportion 
 to the magnitude of the apprehended offence, and its apparent 
 probability ; in proportion as the delinquent appears more or less 
 
PEINCIPiES 01? THE PENAL CODE. 375 
 
 dangerous, and as he has more means of accomplishing his evil 
 intentions. There is one limit -which ought never to he passed. 
 Never use a preventive means of a nature to do more evil than 
 the offence to be prevented. 
 
 CHAPTER III. 
 
 Of Chronic Offences. 
 
 Bbfoee treating of suppressive remedies, that is, of the means of 
 stopping the progress of offences, we must first discover what are 
 the offences whose progress can be stopped ; for there are some 
 which do not admit of this measure : and those which do, do not 
 all admit it in the same manner. 
 
 The capability of ibeing stopped supposes that the offence has a 
 sufBcient duratiori to admit the intervention of justice ; but all 
 offences do not have such duration. Some have a transient, 
 others a permanent effect. Homicide and violation cannot be 
 repaired. Theft may last only a moment, or if the thiug stolen 
 has been consumed or destroyed, it may last for ever. 
 
 It is necessary to distinguish the circumstances according to 
 which offences have a greater or less duration, because they have 
 an influence on the suppressive means which may be applied to 
 them. 
 
 1st. An offence acquires duration by the simple continuation of 
 an act capable of ceasing at each instant without ceasing to have 
 been an offence. The detention of a person, the abstraction of a 
 thing, are offences of this kind. 
 
 3n(|. 'Wherever the design of committing an offence is regarded 
 as an offence in itself, it is clear that the continuance of the offence 
 wiU be co-extensive with the continuance of the design. This 
 class of chronic offences is a sub-division of the former. 
 
 3rd. The greater part of negative offences, those which consist 
 in omissions, have a certain duration. Not to provide for the 
 support of a child, not to pay one's debts, not to appear at the 
 summons of a court, not to make known one's accomplices, not to 
 
 I 3 
 
27C PEINCIPIES OF THE PENAL CODE. 
 
 put a person in the enjoyment of a right that belongs to him — all 
 these appertain to this class. 
 
 4th. There are material works of •which the continuance is a 
 prolonged offence, such as a manufacture injurious to the health 
 of a neighbourhood, a building whioli obstructs a road, a dam 
 which interrupts the course of a river. 
 
 5th. Productions of the mind, through the intervention of 
 printing, may have the same effect. Such are libels, pretended 
 histories, alarming prophecies, obscene pictures — in one word, 
 everything which presents to the citizens, under the durable signs 
 of language, ideas which ought not to be presented. 
 
 6th. A series of repeated actions may have in their coLective- 
 ness a character of imity, in virtue of which he who commits them 
 is said to have contracted a habit. Such are the fabrication of 
 false money, forbidden processes in a manufacture, and contraband 
 in general. 
 
 7th. There is a degree of duration in certain offences which, 
 though distinct in themselves, yet, taken together, assume a cha- 
 racter of unity, because one is the occasion of the other. A man 
 commits a theft in a garden — he beats the owner who hastens to 
 oppose him — ^he pursues him into his house, insults his family, 
 spoils his furniture, kiUs a favourite dog, and continues his depre- 
 dations. Thus is formed an indefinite series of offences, the 
 duration of which may give time for the intervention of justice. 
 
 8th. There is a certain duration in the proceedings of a number 
 of offenders who, with or without consent, pursue the same object. 
 Thus from a confiised medley of acts of destruction, threats, 
 verbal injuries, personal injuries, insulting cries, and provoking 
 shouts, is formed that sad and fearful composition called a tumult, 
 a rising, an insurrection — forerunners of rebellion and civil war. 
 
 Chronic offences are apt to lead to a catastrophe. A projected 
 offence ends in an executed offence. Simple corporal injuries 
 have a tendency tow-ards irreparable corporal injuries and homi- 
 cide. There is no offence of which imprisonment may not be 
 the forerunner. It may be used for getting rid of a marriage tie 
 which proves to be inconvenient, or to carry out a scheme of 
 
PRINCIPLES OP THE PENAL CODE. 277 
 
 seduction ; to suppress testimony, to extort a secret, to prevent a 
 claim of property ; to force the prisoner to aid in some criminal 
 enterprise — ^in one word, imprisonment may always have some 
 particular catastrophe according to the object of the offender. 
 
 In the course of a criminal undertaking the end may change 
 with the means. A thief surprised in the act, through fear of 
 punishment, or enraged by the loss of his plunder, may become an 
 assassin. 
 
 The foresight of the magistrate ought to picture in every case 
 the probable catastrophe of the offence, and prevent it by a 
 prompt and well-directed interference. In determining the 
 punishment, reference must be had to the intentions of the 
 offender j in applying preventive and suppressive remedies, we 
 must take into account aU the probable consequences, both those 
 intended and those which the offender overlooks or does not 
 foresee. 
 
 CHAPTER IV. 
 
 Suppressive Remedies for Chronic Offences. 
 
 The different kinds of chronic offences demand different suppressive 
 remedies. These suppressive means are the same as the preven- 
 tive means of which we have given a catalogue. The difference 
 is in the time and the application. 
 
 There are cases in which the preventive means to be used cor- 
 respond so visibly to the nature of the offence that they scarcely 
 need to be indicated. It is very plain that wrongful imprison- 
 ment demands release, and that theft requires restitution. The 
 only difiSculty is to know where the person or thing detained can 
 be found. 
 
 There are other offences, such- as seditious meetings, and some 
 negative offences, particularly the non-payment of debts, whioli 
 require more complicated means to suppress them. We shall have 
 occasion to examine these cases under their proper head. 
 
 The evil of dangerous writings is an evil very difficult to sup- 
 
378 PEINCIPLES OF THE PENAL CODE. 
 
 press. They lie hid, they multiply, they revive with more vigour 
 after the most notable attempts to destroy them. When treating 
 of indirect means of prevention, we shall show how this evil may 
 be most effectually met. 
 
 The magistrate must be allowed more latitude in the employ- 
 ment of suppressive than in the use of preventive means. The 
 reason is plain. "When the question is to suppress, there is an 
 actual offence, and consequently a punishment fixed for it. Too 
 much is not risked to stop it, provided we do not go further than 
 we must go to punish it. But while the point merely is to pre- 
 vent an offence, we cannot be too scrupulous how we act. Per- 
 haps no such offence is intended ; perhaps we are deceived in the 
 person to whom we attribute the intention ; perhaps the person 
 suspected is acting in good faith, and instead of committing the , 
 offence he wiU stop of himself. Each, perhaps, demands a pro- 
 cedure milder and more moderate in proportion as the apprehended 
 offence is more problematical. 
 
 The offences of illegal detention and deportation are of such a 
 nature as to demand some particular means for preventing and 
 suppressing them. These means may be reduced to the following 
 precautions \- — 
 
 1st. To require a register of the houses of all tinds in which 
 individuals are detained, in spite of themselves, such as prisons, 
 hospitals for the insane or for idiots, and private institutions for 
 persons thus disordered. 
 
 2nd. To have a second register containing the causes of deten- 
 tion, and not to permit a person of unsound mind to be detained 
 till after a juridical consultation of physicians. These two 
 registers, kept in the tribunals of each district, should be publicly 
 exposed, or at least left open to be consulted by everybody. 
 
 3rd. To establish some signal, such as shall be as much as 
 possible in the power of a person forcibly carried away, which 
 shall be a sufficient authority to any passer-by to call the ravishers 
 to account, to accompany them if they declare an intention to 
 carry the prisoner before a magistrate, and to compel them to go 
 if they evince a different intention. 
 
PEINCIPLES OP THE RENAI, CODE. 379 
 
 4th. Granting to all the right to obtain authority to search 
 every house in which they suspect a person to be forcibly 
 detained. 
 
 CHAPTEE V. 
 
 Observations ttpon Martial Law, 
 
 In England, in the case of seditious disturbances, it is not the 
 fashion to begin by a military assassination. Warning precedes, 
 the punishment ; martial law is proclaimed, and the soldier can- 
 not act till the magistrate has spoken. 
 
 The intention of this rule is excellent ; but what shall we say 
 of its execution ? The magistrate is obliged to go into the midst 
 of the tumult; he must pronounce a long drawling formula, 
 which nobody understands ; and bad luck to those who are on 
 the spot an hour after ! — they are declared guilty of a capital 
 offence. This statute, dangerous for the innocent'and difficult to 
 be executed against the guilty, is a mixture of weakness and 
 violence. 
 
 In such a moment of disorder, the magistrate ought to announce 
 his presence by some extraordinary signal. The red flag, so 
 famous in the Erench revolution, had a great effect upon the 
 imagination. In the midst of cries, the ordinary means of lan- 
 guage do not answer. The multitude cannot hear ; it is necessary 
 to speak to their eyes. An harangue supposes attention and 
 silence ; but visible signs have a rapid and powerfiil operation. 
 They say at once all they have to say; they have but one sense, 
 and that unequivocal; a studied disturbance, a. concerted uproar, 
 cannot prevent their effect. 
 
 Besides, words lose their influence through a multitude of un- 
 foreseen circumstances. If the orator is personally odious, from 
 his mouth even the language of justice is hateful. If his cha- 
 racter, his air, or the style of his oratory, have in them anything 
 ridiculous, this ridicule extends to his offi.cial acts. Here is an 
 additional reason for speaking to the eyes by respectable symbols, 
 not subject to like caprices. 
 
280 PEINCrPLES OP THE PENAL CODE. 
 
 But, as it may be necessary to join words to signs, a speaking 
 trumpet is an essential accompaniment. The singularity even of 
 that instrument would give to the orders of justice more dignity 
 and eclat ; it would banish every idea of familiar conversation, 
 and convey the notion of not hearing a man, the mere individual 
 magistrate, but the privileged minister, the herald of the law. 
 
 This means of being hSard afar has long been used at sea. 
 There, distance and the noise of winds and waves early made 
 evident the insufficiency of the human voice. The poets have 
 often compared a tumultuous people to a stormy ocean. Does 
 this analogy belong exclusively to the agreeable arts ? It would 
 be of much more importance in the hands of justice. 
 
 The orders should be in few words ; nothing which is of the 
 nature of ordinary discourse or discussion. Let it not be hy 
 command of the king. Speak in the name of justice. The chief 
 magistrate may be an object of hatred, just or unjust ; perhaps 
 that very hatred is the cause of the tumult. To call up his image 
 would be to inflame passions instead of allaying them. If not 
 odious already, such a procedure would expose him to become 
 so. Every favour, everything which bears the character of pure 
 beneficence, ought to be presented as the personal act of the 
 father of hia people. All rigorous proceedings, — those of severe 
 benevolence, — ought to be attributed to nobody. Let the hand 
 that acts be veiled. Throw the responsibility upon some creature 
 of reason, some animated abstraction ; such as Justice, daughter of 
 necessity and mother of peace, whom men ought to fear, but 
 whom they cannot hate, and who ought always to possess their 
 supremest homage. 
 
 CHAPTER VI. 
 
 Nature of Satisfaction. 
 
 Saiisfactiok is a good received, in consideration of a damage 
 sufiered. If the question relate to an offence, satisfaction is an 
 
PalirCIPLES OF THE PENi.L CODE. 281 
 
 equivalent given to tlie party injured on account of the damage he 
 has sustained. 
 
 Satisfaction is complete, whenever the good conferred is equal to 
 the amount of evil suffered ; so that if the injury should be 
 repeated and the same reparation should follow, the event would 
 appear indifferent to the injured party. If something is wanting 
 to raise the value of the good to an equality with the evil, the 
 satisfaction is partial and imperfect. 
 
 Satisfaction has two aspects or two branches, the past and the 
 future. Satisfaction for the past is what is called indemnify; 
 satisfaction for the future consists in putting a stop to the evil of 
 the offence. If the evil ceasesof itself, nature has performed the 
 functions of justice, and in this respect the tribunals have nothing 
 more to do. 
 
 If a sum of money has been stolen, from the moment it is 
 restored to the owner the satisfaction for the future is complete. 
 It only remains to indemnify him for the past, for the temporary 
 loss which he experienced while the offence continued. 
 
 But if the question is of a thing spoiled or destroyed, satisfac- 
 tion for the future can only take place by giving to the party in- 
 jured a similar or equivalent article. Satisfaction for the past 
 would consist in an indemnity for the temporary privation. 
 
 CHAPTEE VII. 
 
 Reasons on tahich the necessity of Satisfaction is founded. 
 
 Satisfactioit is necessary to put a stop to the evil of the first order, 
 to re-establish things in the state in which they were before the 
 offence was committed, and to restore the sufferer to the condition 
 in which he would have been if the law had not been violated. 
 
 Satisfaction is yet more necessary to put a stop to the evil of 
 the second order. Punishment alone is not sufficient for that 
 purpose. It tends, without doubt, to diminish the number of 
 offenders ; but this number, though diminished, can never be con- 
 sidered as nothing. , Examples of the commission of offences, as 
 
282 prairciPLES ov the penal code. 
 
 they are more or less kno-wn, excite more or less of apprehension. 
 Every observer sees in them the chance of suffering in his turn. 
 If it he desired to dissipate this sentiment of fear, it is necessary 
 that the offence should be as constantly followed by satisfaction 
 as by punishment. If it ■were followed by punishment without 
 satisfaction, as many offenders as were punished, so many proofs 
 there would be of the inefflcacy of punishment ; and consequently 
 so much alarm weighing upon society. 
 
 But here needs to be made an essential observation. To tako 
 away the alarm, it is enough that the satisfaction is complete in 
 the eyes of observers, although not complete to the persons in- 
 terested. How can we determine whether the satisfaction is com- 
 plete for him who receives it ? The balance, in the hands of 
 passion, would always incline to the side of interest ; to the 
 greedy it would be impossible to give enough ; the vindictive 
 never would think his adversary sufficiently humbled. We must 
 suppose, then, an impartial observer, and regard that satisfaction 
 as sufficient which he would estimate as equivalent to the evil 
 endured. 
 
 CHAPTEE VIII. 
 The different Kinis of Satisfaction. 
 
 "We may distinguish six kinds : — 
 
 1st. Fecunia/ry Satisfaction. — As money is a pledge for the 
 greater part of pleasures, it is an efficacious compensation for a 
 multitude of evils. But it is not always in the offender's power 
 to pay it, nor always proper that the offended party should receive 
 it. To offer a man, whose honour has been outraged, a compen- 
 sation in money for the insult is a new affl-ont. 
 
 3nd. Restitution in Nature. — This satisfaction consists either 
 in returning the thing taken away or in giving a thing similar or 
 equivalent to that taken away or destroyed. 
 
 3rd. Attestatory Satisfaction. — If the evil results from, a false- 
 hood, a statement false in point of fact, satisfaction is complete 
 by a legal attestation of the truth. 
 
PalNCaTLES OF THE PENAL CODE. 283 
 
 4th. Sonorary Satisfaction. — An operation ■wMdi lias for its 
 end either to maintain or to re-establish in favour of an individual 
 a portion of honour, of vrhioh the offence had deprived him, or 
 threatened to deprive him. 
 
 5th. Vindictive Satisfaction. — Everything 'which implies a 
 manifest pain to the offender implies a pleasure of vengeance to 
 the party injured. 
 
 6th. Substitutive Satisfaction, or satisfaction at the expense of 
 a third party ; when a person not a party to the offence is held 
 responsible in his fortune for the person who committed it. 
 
 To determine our choice as to the kind of satisfaction, three 
 things must be considered, — the ease of famishing it; the nature 
 of the evU to be compensated ; and the probable sentiments of the 
 party injured. These different heads •wUl presently be taken up, 
 and more fully considered. ' 
 
 CHAPTEE IX. 
 
 The Quantity of Satisfaction. 
 
 As much as the satisfaction fails of being complete, to the same 
 degree the evil remains without a remedy. 
 
 We may fix, by t^o rules, what is necessary to prevent a 
 deficit in this respect. 
 
 1st. Follow the evil of the offence in all its ramifications, and 
 among all parties to it, and proportion the satisfaction accordingly. 
 
 If the question relates to irreparable corporal injuries, two 
 things must be considered ; a means of enjoyment and a means of 
 subsistence taken away for ever. There cannot be a coinpensa- 
 tion of the same nature, but there ought to be applied to the evil 
 a perpetual periodical remedy. 
 
 If the question relates to a homicide, it is proper to consider 
 the loss experienced by the heirs of the deceased, and to make it 
 up by a gratification paid at once, or periodically for a longer or 
 Bhorter term. 
 
 If the question relates to an offence against property, we shall 
 
284 PKIUCIPLES OP THE PENAL CODE. 
 
 see, under tTie head of Pecuniary Satisfaction, what is required 
 to put the reparation on a level with the offence. 
 
 2nd. In doubtful cases, the balance ought to incline in his f amour 
 who has suffered the injury, rather than in favour of him who com- 
 mitted it. 
 
 AU accidents ought to be at th,e risk of the offender. AU satis- 
 faction ought rather to be superabundant than defective. If 
 superabundant, the excess being in the nature of a punishment, 
 cannot but serve to prevent like offences. If defective, that 
 deficit always leaves a certain degree of alarm ; and in vindictive 
 offences, all the unsatisfied evil is a matter of triumph to the 
 offender. 
 
 Laws are everywhere very imperfect upon this point. On the 
 side of punishments there has been little fear of excess ; on the 
 side of satisfaction, a deficit has caused little concern. Punish- 
 ment, which, if it goes beyond the limit of necessity, is a pure 
 evil, has been scattered with a prodigal hand. Satisfaction, 
 which is purely a good, has been dealt out with the most evident 
 parsimony. 
 
 CHAPTEK X. 
 
 The certainty of Satisfaction, 
 
 Cebtainty of satisfaction is an essential branch of security ; and 
 in proportion as this certainty is wanting, in the same propor- 
 tion security is diminished. 
 
 What shall be thought of those laws which, to the natural 
 causes of uncertainty, add other factitious and voluntary causes? 
 To obviate this defect the following rules are necessary : — 
 
 1st. The obligation to satisfy ought not to be extinguished by the 
 death of the iry'ured party. The satisfaction due to the deceased is 
 due to his heirs. 
 
 To make the right of receiving satisfaction dependent upon the 
 life of an individual, is to take away from that right a part 
 of its value. It is like reducing a perpetual annuity into an 
 
PEINCIPIES OF THE PBNAL CODE. 285 
 
 annuity for life. Satisfaction is not to be obtained except by a 
 process which may last a long time. If the claimant is an aged 
 or infirm person, the value of his right fluctuates with his health; 
 if the claimant is on his death-bed, his right is worth nothing. 
 
 Moreover, if you diminish on one side the certainty of satis- 
 faction, you increase on the other the hope of impunity. You 
 show in perspective to the offender a time when he may hope 
 quietly to enjoy the fruit of his offence. You give him a motive 
 to retard, by a thousand impediments, the judgment of the court, 
 and even to hasten the death of the injured party. At all events 
 you put out of the protection of the law those persons who have 
 the greatest need of it, — the dying and the sick. 
 
 It is true that, although the obligation of satisfaction be extin- 
 guished by the death of the injured party, the offender may still 
 be subjected to another punishment ; but what other punishment 
 can be so fit and proper ? 
 
 2nd. The right of the injurei party ought not to he extinguished 
 by the death of the offender, the author of the wrong. The satis- 
 faction due from him is due from, his heirs. 
 
 To determine otherwise would be to diminish the value of the 
 right, and to encourage offences. A man conscious that death 
 was near, might commit an injustice with no other object except 
 to advance the fortune of his children, — a case more common 
 than is generally supposed. 
 
 Is it said that if satisfaction be given to the injured party, 
 after the death of the delinquent, it is only by an equivalent 
 suffering imposed upon his heirs ? But there is a great differ- 
 ence between the two cases. The expectation of the injured 
 party is a clear, precise, decided expectation, firm in proportion 
 to his confidence in the protection of the laws. The expectation 
 of the heir is but a vague hope. The object of it is not the entire 
 succession, but a certain, unknown, net produce, after all lawful 
 deductions. That which the deceased might have spent in plea- 
 Bui^s he has spent upon injustice. 
 
236 niiNciPLES OF the penal code. 
 
 CHAPTER XL 
 
 Pecuniary Satisfaction. 
 
 Theee are cases in wMch pecuniary satisfaction is demanded ly 
 the very nature of the offence ; there are other cases in which it 
 is the only satisfaction that circumstances permit. 
 
 It should he employed by preference, upon occasions where it 
 promises to have the greatest effect. 
 
 Pecuniary satisfaction is at its highest point of propriety in 
 cases where the damage experienced by the injured party, and the 
 advantage obtained by the delinquent, are alike of a pecuniary 
 nature ; as in theft, peculation, and extortion. The remedy and 
 the evil are homogeneous ; the compensation may be exactly 
 measured by the loss, and the punishment by the profit of the 
 offence. 
 
 This kind of satisfaction is not so well founded when there is 
 a pecuniary loss upon one side, without any pecuniary profit upon 
 the other ; as in the case of offences committed through hostility, 
 negligence, or accident. 
 
 It has still less foundation in those cases in which it is not 
 possible to value in money either the evil of the party injured, 
 or the advantage of the offender ; as in case of injuries to honour. 
 
 The more a means of satisfaction is incommeasurable with the 
 injury, the more a means of punishment is incommeasurable 
 with the advantage of the offence, the more likely are both to 
 fail of their end. 
 
 The old Eoman law, which appointed a fixed sum of money as 
 the damagfeB for a blow, was no protection to honour. The repa- 
 ration having no common measure with the outrage, its effect 
 was precarious, whether as a satisfaction or a punishment. 
 
 There is stiU in existence an English law, which is a true relic 
 of barbarous times, A daughter is considered as the servant of 
 her father ; if she is seduced, the father cannot obtain any other 
 satisfaction than a sum of money, the price of the domestic ser- 
 vices which he is supposed to have lost by the pregnancy of his 
 daughter. 
 
PEINCIPLES OP THE PENAL CODE. 287 
 
 As respects injuries to the person, a pecuniary indemnity may 
 be proper or not, according to the respective ■wealth, of the parties. 
 
 In regulating a pecuniary satisfaction, the two branches of the 
 past and the future must not be forgotten. Satisfaction for the 
 future consists merely in putting a stop to the evil ; satisfaction 
 for the past consists in an indemnity for the wrong endured. To 
 receive a sum due, is a satisfaction for the future ; to receive the 
 accrued interest upon that sum, is a satisfaction for the past. 
 
 Interest ought to begin from the happening of the evil to be 
 compensated; from the moment, for example, when the debt 
 became due ; when the thing in question was taken, damaged, or 
 destroyed ; or when the service to which one had a right was 
 refused. ' 
 
 This interest, granted as a satisfaction, ought to be higher than 
 the ordinary rate of commerce ; at least, whenever there is a 
 suspicion of bad faith. Such an excess is very necessary. If the 
 interest did not exceed the customary rate, there would be cases 
 when the satisfaction would be incomplete, and other cases in 
 which a profit would result to the offender, — the pecuniary profit, 
 for example, of obtaining a forced loan at the ordinary interest ; 
 a pleasure of vengeance or hostility, if the offender has wished to 
 keep the injured party in need, and to enjoy his distress. 
 
 For the same reason, compound interest should be allowed ; 
 that is, every time a payment of interest became due, that interest 
 should be added to the principal, and should become a part of it. 
 The capitalist, at sach payment, might have converted his interest 
 into capital, or have drawn an equivalent advantage from it. If 
 this part of the damage is left without satisfaction, there wUl be 
 a loss to the innocent party, and a gain to the delinquent. 
 
 The expense of satisfaction ought to be shared among the 
 offenders in proportion to their wealth, or, according to circum- 
 stances, in proportion to their respective degrees of criminality. 
 Por, in fact, the obligation to satisfy is a punishment ; and it 
 would be in the highest degree unequal if co-delinquents of 
 unequal wealth were mulcted in the same sum. 
 
Z88 PBINCIPLES OF THE PEIfAL CODE. 
 
 CHAPTEE XII. 
 
 Restitution in Nature. 
 
 Eestitution in nature is chiefly important in the case of property 
 ■which possesses a value of affection.* 
 
 But it is due in every case. The law ought to assure me 
 everything which is mine, without forcing me to accept equiva- 
 lents, even though I have no particular ohjection to them. "With- 
 out restitution in nature, security is incomplete. How can we 
 he secure as to the whole, when we are secure of nothing in, par- 
 ticular ? 
 
 A thing taken away, either in good or had faith, may have 
 passed into the hands of a stranger who holds it in good faith. 
 Shall it he restored to the former owner, or be kept by the new 
 one ? The rule is simple. The thing ought to remain with the 
 person who may be supposed to have the greatest affection for it. 
 This superior degree of affection may be easily estimated, from 
 the relations of the two parties to the thing in question, from the 
 time they have possessed it, from the services they have drawn 
 from it, from the cares and expense it has cost them. These 
 indications commonly unite in favour of the original owner.f 
 
 The preference is also due to him in doubtful cases, and for 
 these reasons : — 1st. The new owner may have been an accom- 
 plice in the fraudulent acquisition, though it may be impossible 
 
 * Such as immoveables in general, also family relics, portraits, the 
 handiwork of a dear friend, domestic animals, antiquities, curiosities, 
 pictures, manuscripts,' instruments of music, — in fine, everything which 
 is unique, or which appears to be so. 
 
 + "When the thing or animal in question is of the kind which produces 
 its like, we may ascertain, by the same considerations, on which side is 
 likely to be the superiority of afieotion as respects its fruits or offspring, 
 as wine of a particular vineyard, the colt of a favourite horse, &o. It 
 may well be that the claims of the former owner are not so strong in 
 this case as in the other. The new possessor is only owner at second 
 hand of the thing or animal that produces, but ho is the first owner of 
 the things produced. 
 
rillK^CIPLES or THE PENAL CODE. 289 
 
 to get proofs of it. This suspicion is not unjust ; formed by the 
 law and not by man, bearing upon the class and not upon the 
 individual, it does not impeach anybody' s honour. 2nd. If the new 
 owner was not an accomplice, he may have been guilty of negli- 
 geilce or rashness, either by omitting ordinary precautions to 
 verify the title of the seller, or by putting an undue confidence 
 in proofs of little weight. 3rd. "When the question relates to 
 grave offences, such as robbery, the preference ought to be given 
 to the former possessor, in order to strengthen the motives which 
 induce him to prosecute. 4th. If the spoliation has been an act 
 of malice, to leave the thing in the possession of anybody except 
 the injured party, would be to leave the offender a gainer by the 
 offence. 
 
 A purchase of such articles at a low price ought always to be 
 followed by restitution at the price paid. If this circumstance 
 does not prove the purchaser to be an accomplice, it always 
 carries with it a strong presumption of bad faith. The purchaser 
 cannot have overlooked the probability of a wrongful possession 
 on the part of the seller ; for it is the danger of carrying them 
 to an open market which causes the low price of stolen goods. 
 
 "WTien the possessor, though esteemed innocent, is obliged, 
 on account of the bad faith of the seller, to restore the thing to 
 the original owner, there ought to be awarded to him a pecuniary 
 equivalent, to be fixed by the magistrate. 
 
 The expenses of preservation, and, for a stronger reason, the 
 costs of improvements, and other extraordinary outlays, ought to 
 be liberally allowed to him who restores the property. This is 
 not only a means of favouring general wealth, it is for the iute- 
 rest even of the original proprietor, though the indemnity be 
 paid at his expense. According as this indemnity is granted or 
 refused, the improvement of the thing is favoured or prevented. 
 
 Neither the original owner nor the subsequent possessor ought 
 to gain at the expense of the other. The losing party ought to 
 be allowed a claim of indemnity, first against the offender, and 
 in his default, upon the subsidiary fund of which we shall pre- 
 sently speak. 
 
290 PEINCIPLES OF THE PENAL CODE. 
 
 "When an identical restitution is impossible, there ought to be sub- 
 stituted for it, as far as may be, the restitution of a similar thing. 
 Suppose two rare medals of the same coinage. The owner of one 
 of them has seized upon the other, and spoUed or lost it, by 
 negligence or design. In such a case the best satisfaction is to 
 give Ms medal to the injured party. 
 
 In offences of this kind pecuniary satisfaction is liable to 
 prove insufficient or useless. A value of affection is seldora appre- 
 ciated by third persons. It needs a very enlightened benevo- 
 lence, and philosophy very uncommon, to sympathize with tastes 
 different from our own. The Dutch florist, who sells tulip bulbs 
 for their weight in gold, laughs at the antiquary who pays a 
 great price for a rusty lamp.* 
 
 Legislators and judges have too often thought like the vulgar. 
 They have applied gross rules to cases which required a nice dis- 
 cernment. There are cases in which the offer of money is not a 
 satisfaction, but an insult. Shall a lover take money as the 
 price of his mistress's portrait, of which a rival has robbed him? 
 
 Mere restitution in nature leaves a deficiency of satisfaction 
 proportioned to the amount of enjoyment lost during the con- 
 tinuance of the offence. An example will show how this amount 
 is to be estimated. Suppose a statue illegally taken away. This 
 statue put up at auction would have brought a hundred pounds 
 sterling, according to the estimate of experts. A year elapses 
 
 * Some years since a canary-bird was the subject of a lawsuit before 
 one of the Parliaments of France. A journalist, who gave an account of 
 it, amused himself at the expense of the parties, and regarded the whole 
 affair as very ridiculous. 1 cannot agree with him. Is it not tho 
 imagination which, gives a value to the objects esteemed most precious ? 
 As laws are made only out of deference to the universal sentiments of 
 men, can they show too niuch anxiety to guard everything which makes 
 a part of human happiness ? Should they not acknowledge and protect 
 tho sensibility which attaches us to creatures we have raised and 
 familiarized, and who in their turn are attached to us ? This lawsuit, so 
 frivolous in the eyes of the journalist, was but too serious a matter, Biuos 
 one of the parties had sacrificed to it, to say nothing of money, his probity 
 and his honour. Can an object rated so highly be considered a trifle ? 
 
PEINCIPLES OP THE PENAL CODE. 291 
 
 between the robbery and the restitution; interest is at five per 
 cent. Put down under tbe head of satisfaction for the past, ordi- 
 nary interest, five pounds; additional for penal interest(seech.xi.), 
 say two pounds ten shillings ; total, seven pounds ten shiUingsJ 
 In fixing the damages we must not forget the deterioration, 
 whether accidental or necessary, which the thing may have 
 undergone in the interval between the commission of the offence 
 and the restitution. The statue would not have deteriorated,— at 
 least, not necessarily; but a horse of the same price must of 
 course have diminished in value. A collection of tables of 
 natural deterioration, year by year, according to the nature of 
 the several articles, is one of the things which the library of 
 justice requires. 
 
 CHAPTEE XIII. 
 
 Attedatory Satisfaction. 
 
 This means of satisfaction is particularly adapted to offences of 
 /falsehood whence there is liable to result an opinion prejudicial 
 to an individual ; but the weight of which, its extent, and even 
 its existence, cannot be established by evidence. While the error 
 exists, it is a constant source of actual or probable evil ; there 
 is but one means of arresting it, and that is to make its falsehood 
 evident. 
 
 This is the proper place for enumerating the principal offences 
 of falsehood. 
 
 Ist. Simple Mental Injuries, consisting in the spread, of False 
 Alarms. — For example, stories of apparitions, ghosts, vampires, 
 sorcerers, diabolical possessions ; false reports of a nature to strike 
 some individual, with fear or sadness, pretended deaths ; stories of 
 the bad conduct of near relations, of conjugal infidelities, of losses 
 of properly; falsehoods adapted to alarm a class more or less 
 numerous, as reports of contagious diseases, invasions, conspiracies, 
 conflagrations, &c. 
 
 2nd. Offences against deputation, of wiich there are many kinds : 
 
 V 2 
 
293 PEiNorpiES OF the penal code. 
 
 defamation by the positive statement of particular injurious facts ; 
 diminution of refutation, which consists in weakening what cannot 
 be destroyed — concealing from the public, for example, a circum- 
 stance which would add to the eclat oi a celebrated action; intercep- 
 tion of reputation, which consists in preventing the performance of 
 an action honourable to the individual in question, or in taking from 
 him the occasion of distinguishing himself by causing an enter- 
 prise to be regarded as impossible or finished already ; usurpation 
 of reputation, of which all plagiarisms, whether of authors or 
 artists, are examples. 
 
 3rd. Fraudulent Acquisition. — Examples : false reports to afiect 
 the rate of exchange or the price of stocks. 
 
 4th. Disttirhanoe in the Unjoyment of Domestic and Civil Mights. — 
 Examples : denying to a husband, a wife, or a child their legal titles 
 to that condition ; or setting up a false claim of that nature ; or aid- 
 ing in a like falsity in regard to any privilege or civil condition. 
 
 6th. Preventing Acquisition. — Preventing a man from buying 
 or selling by false reports as to the value of the thing or his right 
 to dispose of it. Preventing a person from acquiring a certain 
 condition, such as marriage, by false reports which make him 
 Postpone it or give it over. 
 
 In all these cases the arm of justice is powerless ; forcible 
 
 means are nuU or imperfect. The only efficacious remedy is an 
 
 .authentic declaration which destroys the falsehood. To dissipate 
 
 error, to publish the truth — ^how respectable a function, how 
 
 worthy of the highest tribunals! 
 
 What should be the form of attestatory satisfaction ? It may 
 "vary with the means of publicity ; it may consist in printing and 
 publishing the judgment at the expense of the offender, in hand- 
 bills distributed under the direction of the injured party, or pub- 
 lications in the national and foreign newspapers. 
 
 The idea of this satisfaction, so simple and so useful, is drawn 
 from Erenoh jurisprudence. "When a man had been calumniated, 
 ■the parliaments almost always ordered that the sentence which 
 re-established his reputation should be printed and circulated at 
 ■the expense of the calumniator. 
 
PEIJfCIPLES OF THE PElfAt. CODE. ii9& 
 
 But ■vrhy force the offender to declare that he has been guilty 
 of false charges, and to acknowledge pubHcly the honour of the 
 party interested ? This form is objectionable in several respects. 
 It is wrong to compel a man to the expression of certain senti- 
 ments which perhaps he does not entertain, and to risk the 
 judicial command of a falsehood. It is wrong to enfeeble the 
 reparation by an act of constraint ; for what does a compulsory 
 retraction prove, except the weakness or the fear of him who 
 utters it ? 
 
 The offender may be the organ of his own condemnation, if it 
 be thought fit so to augment the punishment ; but he may be so- 
 without swerving from the exaotest truth, provided the formula 
 prescribed to him includes only the opinion of the court as being 
 the opinion of the court, not his own. " The court has decided 
 that I have alleged a falsehood ; the court has adjudged that I 
 have departed from the character of an honest man ; the court are 
 of opinion that in all this business my opponent has conducted 
 himself like a man of honour.' ' This is aU that concerns the public 
 or the injured party. This is triumph enough for truth, humilia- 
 tion enough for the offender. What is gained by forcing him to 
 say, " I have alleged a falsehood ; I have departed from the cha- 
 racter of an honest man ; my opponent has comported like a man 
 of honour?" This declaration, stronger than the former in ap- 
 pearance, is much less so in reality. The fear which dictates such 
 avowals does not change the actual sentiments of the speaker ; and 
 when the mouth pronounces them before a numerous audience, ali . 
 feel and understand that the heart makes no assent. 
 
 Where the question is of a fact, the court is less likely to be 
 deceived ; and a direct avowal of falsehood, exacted in his own 
 name from the guilty party, will almost always be conformable to 
 his intimate opinion ; but when the question relates to an opinion 
 — to wit, that of the offender — a disavowal which is commanded 
 win almost always be contrary to his interior conviction. In 
 such contests impartial people will condemn an individual ten 
 times for once that he condemns himself. 
 
 Even if he is calm enough to give himself up to reflection, the ■ 
 
394i PEUfCIPLES OP THE PENAL CODE. 
 
 triumpli of his opponent is before Hs eyes, he is himself the 
 instrument of it, and the irritation of wounded pride must increase 
 his preiudicesi JHe may have been deceived, and you compel him 
 to accuse himself of falsehood; you place him in a cruel position, 
 ■where, the honester he is, the more he will suffer — ^that is, he wiU 
 be more severely punished in proportion as he deserves it less. 
 
 How many scoundrels by the decision of a court would make 
 themselves be declared men of honour and probity by the very 
 persons who best knew the contrary! Besides, what signifies 
 such a general declaration ? Because a particular imputation is 
 false or doubtful, does it follow that a man's character is above all 
 imputation? Because a person has been once slandered, is his 
 reputation therefore above all blame? Let one of these patents 
 of honour be once granted to a man in bad estimation, and at once 
 a contradiction appears between public opinion and the sentence 
 of the judges ; their authority is weakened, and they are no 
 longer recurred to for a remedy which, by being badly adminis- 
 tered, has lost its efficacy. 
 
 With respect to promises less reserve is necessary. It is enough 
 if the engagement includes nothing contrary to honour or to pro- 
 bity. For example, a promise ought not to be extorted from a man 
 to serve against his country or his party ; but a promise not to 
 fight may be extorted, because such an undertaking on his part 
 produces no loss to his party or his country ; for he would not have 
 been able to serve them if, instead of being set at liberty upon his 
 promise, he had been put to death or kept in irons. 
 
 CHAPTER XIV. 
 
 Hoivorary Satisfaction. 
 
 We have seen what remedy can be provided for those offences 
 against reputation of which falsehood is the instrument. But 
 there are others more dangerous; hatred has surer means of 
 striking a deadly blow at honour. It does not always lurk 
 under a timid calumny ; it makes an open attack^ not, however. 
 
PEINCIPLES OF THE PENAl CODE. 295 
 
 by those violent means which put the person in danger, Humi-^ 
 liation is its end. An act, the least painful in itself, is often the 
 most so in its consequences ; a greater evil to the person wotild 
 be a less injury to the honour ; for when we would make a man 
 an object of contempt, we should avoid exciting in his favour a 
 sentiment of pity which wiLL produce an antipathy against his 
 adversary. Hatred has exhausted all its reflncments upon this 
 kind of offences. They must be opposed by those partictilar 
 remedies to which we give the name of honorary satisfaction. 
 
 To perceive the necessity of this course, it is necessary to 
 examine the nature and tendency of these offences ; the causes 
 of their importance, the remedy hitherto applied to them by the 
 usage of duelling, and the imperfection of that remedy. These 
 inquiries, which relate to all that is most delicate in the human 
 heart, have been almost entirely neglected by those who have 
 made laws ; and yet they are the first foundation of all good legis- 
 lation upon the subject of honour. 
 
 In the actual state of manners among the most civilized nations, 
 the ordinary and natural effect of these offences is to take from 
 the offended person a more or less considerable portion of his 
 honour ; that is, he no longer, enjoys the same esteem among his 
 fellows ; he loses a proportional part of the pleasures. Services, 
 and good offices of every kind, which are the fruits of that esteem; 
 and he finds himself exposed to the disagreeable consequences of 
 their contempt. 
 
 Now, as the evU, at least the essential part of it, consists in 
 this change in the sentiments of men it is they who ought to be 
 considered as its immediate authors. The nominal offender has 
 inflicted but a trifling wound, which, left to itself, would soon 
 close up. It is other men who pour a poison into it, which 
 makes it dangerous, and often incmable. 
 
 At the first view, the rigour of public opinion against an 
 insulted person seems a piece of revolting injustice. Docs a 
 man stronger or more daring abuse his superiority to maltreat, 
 in a certain manner, a person whose feebleness ought to be his 
 protection ? All the world, ' as if by a concerted movement, 
 
396 PEINCIPIES or IHE PENAL CODE. 
 
 instead of being angry witli the oppressor, arrange themselves 
 upon his side, and heap upon his victim a succession of cowardly 
 sarcasms and neglects, often more bitter than death itself. At 
 the signal of some worthless wretch, the public eagerly dashes, 
 upon the innocent object of his malice, like a ferocious dog, 
 which only waits his master's order. Thus it is that a scoundrel, 
 who desires to inflict upon some worthy man the torments of 
 disgrace, employs those who are called men of the world, men of 
 honour, as the executioners of his tyrannical injustice ; and, as 
 the contempt with which the injury is attended is in proportion 
 to the injury itself, this domination of rufS.ans is the more inex- 
 cusable,> as its abuses are the more atrocious. 
 
 Whether an insult be deserved or not, is a question which 
 nobody deigns to ask ; deserved or not, it furnishes a triumph 
 not only to its insolent author, but to everybody else who chooses 
 to assist in aggravating it. People take honour to themselves 
 for trading on the fallen ; an affront received separates a man 
 from his equals ; and, like a social excommunication, renders him 
 impure in their eyes. Thus the real evil — the ignominy — is more 
 the work of other men than of the first offender ; he has but 
 pointed out the game, they have torn it to pieces ; he orders the 
 punishment, they are the executioners. 
 
 Por example, let a man go so far as publicly to spit in another's 
 face. In itself, what is this evil ?— a drop of water, forgotten as 
 soon as felt. But this drop of water turns into a corrosive poison 
 which torments the sufferer through his whole life. What works 
 the change ? Public opinion, that opinion which distributes at 
 pleasure honour and shame. The cruel enemy who inflicted it 
 knew well that this affront would be the forerunner and the signal 
 for a torrent of contempt. 
 
 A brute, a vile wretch, can at pleasure dishonour a virtuous 
 man ! He can fill with chagrin and distress the termination of 
 the most respectable career ! And how does he enjoy this fatal 
 power ? He enjoys it, because an irresistible corruption has sub- 
 jugated the first and the purest of tribunals, that of the popular 
 sanction. In consequence of this deplorable state of things, all 
 
PEINCIPLES OF THE PENAL CODE. 397 
 
 the citizens depend individually for their honour upon the ■worst 
 man among them, and are collectively subject to his orders, to 
 execute his decrees of proscription again,st each individual in 
 particular. 
 
 Such is the charge which may be brought against public 
 opinion; and these imputations are not without foundation. 
 Men, admirers of power, are often guilty of injustice towards the 
 feeble ; but when we probe to the bottom the effects of this kind 
 of offences, we perceive that they produce an evil independently 
 of opinion, and that the sentiments of the public upon affronts 
 received and endured, are not in general so contrary to reason 
 as at first sight they appear to be ; I say in general, because there 
 are a great number of cases in which public opinion is quite with- 
 out excuse. 
 
 To perceive all the evil which may result from these offences, 
 it is necessary to put all remedies out of view ; it is necessary to 
 suppose there are none. Upon this supposition, these offences 
 may be repeated at will ; an unlimited career is opened to inso- 
 lence ; the person insulted to-day may be insulted to-morrow, the 
 next day, every day, and every hour ; each new affront facilitates 
 another, and renders more probable a succession of injuries of the 
 same kind. Now, under the notion of a corporal insult is compre- 
 hended every act offensive to the person which can be inflicted 
 without causing a lasting physical evil, every act which produces 
 a disagreeable sensation, inquietude, or pain. But an act of this 
 sort, which if single would be scarcely sensible, may produce, by 
 force of repetition, a very painful degree of uneasiness, or even 
 intolerable torture. I have read somewhere that water, falling 
 drop by drop upon the crown of the naked head, is one of the 
 most cruel tortures ever invented. Gutta cavat Iwpidem, dropping 
 water hollows the rock, says the Latin proverb. Thus, the indi- 
 vidual exposed by his relative weakness to suffer vexations of 
 this sort at the will of his persecutor, and destitute, as we have 
 supposed, of all legal protection, would be reduced to a most 
 miserable situation. Nothing more is needed to establish on one 
 side absolute despotism, and on the other complete servitude. 
 
398 PEINCIPLES OP THE PENAL CODE. 
 
 But Bucli a one is not the slave of a single person, only ; lie is 
 the slave of everybody who has ,a mind to play the despot. He 
 is the sport of the first comer, who, knowing his weakness, may 
 he tempted to abuse it. Like a Spartan helot, he is dependent 
 upon all the world, always fearing and always suffering, an object 
 of general ridicule, and of a contempt not even softened by com- 
 passion ; in one word, lower than any slave, because the misfor- 
 tunes of a slave spring from a compulsatory condition entitled to 
 pity ; while Ids degradation grows out of the baseness of his 
 character. 
 
 These little vexations, these insults, have, for another reason, 
 a sort of pre-eminence in tyranny over violent attacks. Those 
 acts of wrath sufficient to quench at once the hostility of the 
 offender, and even to give an immediate feeling of repentance, 
 offer to view a termination of sufferings ; but a humbling and 
 malignant insult, far from exhausting the hatred which produces 
 it, appears rather 'to serve as an incentive ; so that it presents 
 itself to the imagination as the forerunner of a succession of 
 injuries, the more alarming because indefinite. 
 
 "What is here said of corpora,l insults may be applied to threats, 
 since it is to their threatening quality alone that corporal insults 
 owe all their consequence. 
 
 Outrages in words are not altogether of the same character. 
 They are only a kind of vague defamation, an emplojrment of 
 injurious terms of indeterminate signification, and of which the 
 meaning varies touch, according to the condition of persons.* 
 What is signified by these verbal assaults is this, that the person 
 assailed is thought worthy of public contempt; but on what 
 particular account is not specified. The probable evil which 
 may result is the renewal of similar reproaches. "We may tear, 
 too, lest a profession of contempt publicly made may invite other 
 men to join in it. It is, in fact, an invitation which many will 
 
 * We musfc carefully dietinguisli outrageous words of special defama- 
 tion from those which, have no particular object. The former can be 
 refuted ; they furnish room for attestatory satisfaction. The latter, beiAg 
 vague and indefinite, do not offer the same hold. 
 
PEnfCIPLES or THE PElfAL CODE. 299 
 
 be ready to accept. The pride of censure, the pleasure of triumph- 
 ing at another's expense, the spirit of imitation, the inclination 
 to believe all strong assertions, give "weight to these sorts of 
 injuries. But they seem to owe their principal importance to 
 the negligence of the laws, and to the usage of duelling, — that 
 subsidiary remedy, by which the popular sanction has attempted 
 to supply the silence of the laws. 
 
 It is not surprising that legislators, fearing to give too much 
 importance to trifles, have left in a state of almost universal 
 abandonment that part of security which consists in a freedom 
 from the petty acts of vexation above enumerated. The physical 
 evil, so natural a measure of the importance of an offence, is 
 almost nothing ; and the distant consequences quite escaped the 
 inexperience of those by whom laws were first established. 
 
 Duelling offered itself to flU this gap. This is not the place 
 to inquire into its origin, or to examine its variations and appa- 
 rent absurdities. It is enough that duelling exists ; that in fact 
 it assumes the form of a remedy, and serves to restrain that enor- 
 mity of disorder which otherwise would result from the negligence 
 of the laws. 
 
 This usage once established, .produces the followirig conse- 
 quences. 
 
 The first effect of duelling is to put a stop, in a great measure, 
 to the evil of those offences to whicli it applies — ^that is, to the 
 shame which results from insult. The offended party is no 
 longer in that miserable condition, exposed by his weakness to 
 the outrages of the insolent, and the contempt of all. He is deli- 
 vered from a state of continual fear. The blot upon his honour 
 is effaced ; and if the duel has followed immediately upoii the 
 affront, there is no blot ; it has no time to fix itself; for dis- 
 honour does not consist in receiving an insult, but in submitting 
 to it. 
 
 The second effect of duelling is, that it acts as a punishment, 
 £md tends to prevent the reproduction of like offences. Every 
 new example is a promulgation of the penal laws of honour, a 
 notification that offensive acts cannot be indulged in, without expo- 
 
'TO 
 ' " PEIS-CIPIES OP THE PENAL CODE. 
 
 sure to tte consequences of a private combat — that is, according 
 to the event of the duel, to the danger of different degrees of 
 bodily suffering, or to death itself. Thus the brave man, 
 impelled by the silence of the law to expose himself in order to 
 punish an insult, upholds the general security, while labouring for 
 his own. 
 
 But considered as a punishment, the duel is extremely defective. 
 
 1st. It is not a means of which everybody can avail themselves. 
 There are numerous classes who cannot participate in the protec- 
 tion which it affords, such as women, children, old men, the sick, 
 and those who lack courage to purchase exemption from shame at 
 the risk of so great a danger. Besides, by an absurdity in the 
 point of honour worthy of its feudal origin, the upper classes 
 have not admitted their inferiors to the equality of the duel ; 
 the peasant outraged by a gentleman cannot obtain this satisfac- 
 tion. The insult in this case may have less serious effects, but 
 still it is an insult, and an evil without a remedy. In all these 
 respects the duel, considered as a punishment, is inefficaoious. 
 
 2nd. Often it is no punishment whatever, because opinion at- 
 taches a reward to it, which may appear, in many eyes, superior to 
 aU. its dangers. This reward is the honour attributed to the proof 
 of courage, — an honour which has often an attractive power 
 superior to the force of all opposing motives. The tithe has been 
 when it was essential to the character of a gallant gentleman to 
 have fought at least one duel. A turn of the eye, an inattention, 
 a preference, a suspicion of rivalry, anything was cause enough 
 with men who only wanted a pretext, and who found themselves 
 a thousand times paid for the danger by obtaining the applauses 
 of both sexes, by each of which, bravery, for different reasons, is 
 equally admired. Punishment, being thus amalgamated with 
 reward, has no longer a truly penal character, tad becomes still 
 more ineffioacious. 
 
 3rd. The duel, considered as a punishment, is also defective by 
 excess, or, according to the proper expression, which will be 
 elsewhere explained, it is too expensive. Sometimes, indeed, it 
 amounts to nothing; but it may be capital. Between these 
 
PBINCIPtES OF THE PENAI COSE. 301 
 
 extremes of all and nothing there is a hazard of all the inter- 
 mediate degrees, — wounds, soars, mutilations, limbs crippled or 
 lost. It is plain that if a satisfaction for insults were to be 
 chosen, the preference should be given to a punishment less 
 uncertain and less hazardous, which can neither extend to the 
 life of the offender, nor be entirely powerless. 
 
 There is stiU another singularity in the penal justice which 
 appertains to a duel. Costly to the aggressor, it is no less so to 
 the injured party. The offended person cannot claim a right to 
 punish the offender but by exposing himself to the same punish- 
 ment, and even with a manifest disadvantage ; for the chance is 
 naturally in favour of him who has the choice of his antagonist. 
 This punishment, then, is at once expensive and misdirected. 
 
 4th. Another particular inconvenience of this jurisprudence of 
 duelling consists in this : it aggravates the evil of the offence in 
 every case in which a challenge is not sent, except for some 
 known impossibility of sending it. If the offended party does 
 not send a challenge, he is forced to betray two capital defects of 
 character, — want of courage, and want of honour : want of that 
 virtue which protects society, and without which it cannot be 
 maintained, and want of sensibility to the love of reputation, one 
 of the great foundations of morality. It thus happens that the 
 offended party finds himself, by the law of duelling, in a worse 
 situation than if there were no such law ; for if he refuses this 
 austere remedy it changes into a poison, the infection of which 
 he cannot escape. 
 
 5th. If in certain cases the duel, in quality of punishment, is not 
 80 ineficacious as it appears to be, it is only because an innocent 
 person has exposed himself to a punishment which is in fact a 
 pure evU. Such is the case of persons who by reason of some 
 infirmity of sex, age, or state of health, cannot employ this means 
 of defence. In their condition of personal feebleness they have 
 no resource, except chance grants them a protector, who has at 
 the same time the power and the wiU to risk his person, and to 
 fight in their place. It is thus that a husband, a lover, a brother, 
 may takeupon themselves to punish an injury to a wife, a mistress, 
 
302 PMNCrPIES OF THE PENAL COBE. 
 
 and a sister ; and if in such a case the duel becomes efficacious as 
 a protection, it is only by hazarding the security of a third person, 
 who finds himself burdened with a q[uarrel with which he has no 
 personal connection, and with the origin of which he had nothing 
 to do. 
 
 It is certain that duelling, considered as a branch of penal 
 justice, is an absurd and monstrous means ; but absurd and mon- 
 strous as it is, it cannot be denied that it answers well its prin- 
 cipal object, it entirely effaces the Mot which an insult imprints 
 upon the honour. Vulgar moralists, by condemning public opinion 
 upon this point, only confirm the fact. ITow, whether this result 
 of duelling is legitimate or not, no matter ; it exists, and has its 
 cause. It is essential that the legislator should look into it ; so 
 interesting a phenomenon should not remain without investigation. 
 
 An affront mates him who is the object of it be looked upon 
 as degraded by his own feebleness and cowardice. Always 
 placed between insult and disgrace, he can no longer stand on 
 an equal footing with other men, nor pretend to the same atten- 
 tions. But if, after an insult, I present myself to my adversary, 
 and consent to risk my life against his, by that act I emerge from 
 the humiliation into which I had sunk. If I fall, at least I am 
 delivered from the public contempt and the insolent dominion 
 of my enemy. If he faUs, I am freed from humiliation, and the 
 guilty is punished. If he is only wounded, it is a sufficient 
 lesson for hiin and for those who might be tempted to imitate his 
 conduct. Am I wounded, or is neither hurt ? — still the combat 
 is not useless ; it always produces its effect. My enemy perceives 
 that he cannot renew his insults but at the peril of his life ; 
 I am not a passive being who may be outraged with impunity ; 
 my courage protects me, nearly as the law would do, if it visited 
 such offences by a capital or afflictive punishment. 
 
 But if, when this means of satisfaction is open to me, I patiently 
 endure an insult, I render myseK contemptible in the eyes of 
 the public, because such conduct betrays timidity; and timidity 
 is one of the greatest imperfections in the character of a man. 
 A poltroon has always been an object of contempt. 
 
PEINCII'LES OP THE PENAL CODE. 303 
 
 But ought this want of courage to be classed among the Tices ? 
 Is the opinion which degrades poltroonery a hurtful or a useial 
 prejudice ? 
 
 It can hardly he doubted that this opinion is conformable to 
 the general interest, if we consider that the first passion of every 
 man is the desire of his own preservation, and that courage is 
 more or less a factitious quality, a social virtue which owes its 
 birth and growth to, public esteem more than to every other cause. 
 A momentary ardour ma,y be kindled by anger, but a courage, 
 tranquU and sustained, is only formed and ripened under the 
 happy influences of honour. The contempt, then, which is felt 
 for poltroonery is not a useless sentiment ; the suffering which it 
 brings upon poltroons is not a pain wholly thrown away. The 
 existence of the body politic depends upon the courage of the indi- 
 viduals who compose it. The external security of a state against 
 its rivals depends upon the courage of its soldiers ; the internal 
 security of a state against those very soldiers depends upon the 
 courage of the mass of citizens. In one word, courage is the public 
 soul, the tutelary genius, the sacred palladium by which alone we 
 can be protected against all the miseries of servitude, remain in the 
 condition of men, or escape falling beneath the very brutes. If ow 
 the more honourable courage is, the greater wiH be the number 
 of courageous men ; the more poltroonery is despised the fewer 
 poltroons. 
 
 This is not all. "Where duels are in vogue, he who, being in a 
 condition to fight, puts up with an insult, not only betrays 
 timidity; he revolts against the popular sanction which has made 
 it a law to fight, and shows himself, on an essential point, in- 
 different to reputation. But the popular sanction is the most 
 active and the most faithful minister of the principle of utility, 
 the most powerful and the least dangerous ally of the political 
 sanction. The laws of the popular sanction, as a general rule, 
 are in accordance with the laws of utility. The' more sensitive a 
 man is upon the point of reputation, the more likely he is to be 
 virtuously iliclined ; the less sensitive he is on that point, the 
 more readily does he yield to the seduction of all the vices. 
 
304 PKIJfCrPLES OP THE PEKAL COBE. 
 
 The result of this disoussion is, that in the state of abandon- 
 ment in -which the laws have hitherto left the honour of the 
 citizens, he "who endures an insult ■without recurring to the satis- 
 faction which puhlic opinion prescrihes, is thereby reduced to a 
 humiliating dependence, and exposed to receive an indefinite 
 series of affronts. He exhibits a want of that sentiment of 
 courage on which the general security depends ; and a lack of 
 sensibility to reputation, that sensibility which is the protector 
 of all the virtues and a defence against all the vices. 
 
 Upon examining the progress of public opinion in relation to 
 insults, it appears to me that, generally speaking, it has been 
 good and useful ; and the successive changes which the practice 
 of duelling has undergone have made it more and more conform- 
 able to the principle of utility. The public would be wrong, 
 or rather its folly would be palpable, if, being spectator of an 
 insult, it immediately directed a decree of infamy against the 
 insulted party ; but that it does not do. This decree of infamy 
 is issued only in case the person insulted shows himself a rebel to 
 the law of honour, and signs with his own hand the judgment of 
 degradation. 
 
 To speak generally, then, the public has some reasons for this 
 system of honour.* The real blunder is on the part of the laws. 
 1st. In having suffered, in respect to insults, that anarchy and 
 want of all legal redress which has caused the strange and unlucky 
 
 * Does the public know what reason there is in its opinion ? Is it 
 guided by the principle of utility, or by a mere spirit of imitation, and a 
 blind instinct ? Does the duellist act from an enlightened view of his 
 own and the general interest ? This is a question more curious than 
 useful ; but the following observation may help to resolve it. It is one 
 thing to be determined by the presence of certain motives, and another 
 thing to perceive the influence of those motives. There is no action, no 
 judgment, without a motive, as there is no effect without a cause. But 
 to ascertain the influence which a motive exercises upon us, we must 
 inow how to turn the mind inward upon itself and to anatomize thought. 
 The mind must be divided into two parts, of which one is employed in 
 observing the other, — a difficult operation, so seldom practised that few 
 are capable of it. 
 
PEUfCIPLES OF THE PENAl CODE. 305 
 
 remedy of duelling to be resorted to ; 2iid, In having set itself in 
 opposition to duelling, a remedy imperfect and objectionable, but 
 the only remedy against insults in the power of the sufferers ; 
 '3rd, In having opposed it by disproportioned and inefficacious 
 
 CHAPTER XV. 
 
 JRemedus for Offences against Sonour. 
 "We -will begin with the means of satisfaction for offended honour j 
 and will afterwards point out the reasonswhich justify those means. 
 
 Offences against honour may be divided into three classes : — 
 verbal outrages, corporal insults, insulting threats. The punish- 
 ment, if rendered analogous to the offence, may be made to operate 
 at the same time as a means of satisfaction to the party injured.. 
 
 List of these punishments : — 
 
 ] st. Simple admonition. 
 
 2nd. The offender obliged to read aloud his own sentence. 
 
 3rd. The offender on his knees before the injured party. 
 
 4th. An apology pronounced by him. 
 
 5th. Emblematical dresses (in certain particular cases). 
 
 6th. Emblematical masks. 
 
 7th. The witnesses of the insult called in to be witnesses of 
 the reparation. 
 
 8th. The persons whose good opinion is most important to the 
 offender called to be present at the execution of the sentence. 
 
 9th. Publicity of the judgment. 
 
 10th. Banishment, longer or shorter, either from the presence 
 of the injured party or from that of his friends. For an insult- 
 given in a public place — as a market, a theatre, or a church — 
 banishment from those places. 
 
 1 1th. For a corporal insult, a retort of the same kind, inflicted 
 by the injured party, or, if he prefer it, by the hand of the 
 executioner. 
 
 12th. Per an insult to a woman, the man to be dressed in 
 women's clothes, and the retort to be inflicted by the hand of a 
 woman. 
 
306 PEINCIPIES 0]? THE PEISTAI CODE. 
 
 Many of these means are new, and some of them will appear 
 singular; but new means are necessary, since experience has 
 shown the insuflB.ciency of the old ones ; and as to their apparent 
 singularity, that very thing adapts them to their end, for it 
 enables them, by analogy to the insult, to transfer to the offender 
 the contempt he desired to fix upon the innocent sufferer. These 
 means are varied and numerous to meet the number and variety 
 of this sort of offences, to correspond to the gravity of cases, and 
 to famish reparations adapted to the different social distinctions ; 
 for it is not fit to treat in the same way an insult to a subaltern 
 and to a magistrate, to an ecclesiastic and to a soldier, to a youth 
 and to an old man. All this theatrical play, apologies, attitudes, 
 emblems, forms solemn or grotesque, according to the difference 
 of cases — ^in one word, these public satisfactions turned into spec- 
 tacles, would furnish to the injured party immediate pleasures, 
 and pleasures of recollection, which would well compensate the 
 mortiftcation of the insult. 
 
 Since the injury is wrought by artificial means, artificial means 
 should aid in the reparation ; otherwise it would fail to strike the 
 imagination in the same way, and would not be complete. The 
 offender has availed himself of a certain form of insult to turn 
 the public contempt upon his adversary ; it is necessary to employ 
 an analogous form of infliction in order to turn this contempt back 
 upon him. Opinion causes the disease, opinion must cure it. 
 The .wounds inflicted by the spear of Telephua could only Ise 
 healed by the touch of the same weapon. This is a symbol of 
 the operations of justice in matters of honour. An affiront has 
 d.one the evil, an affront must work the cure. 
 
 Let us follow out the effect of a satisfaction of this kind. The 
 injured man, reduced to an intolerable state of inferiority in 
 respect to his aggressor, can no longer frequent with security 
 his old places of resort, and he discovers in the future only a 
 perspective of injuries. But immediately after the legal repa- 
 ration he regains what he had lost; he walks securely with 
 upraised head, and even acquires a positive superiority over his 
 adversary. How Is this change produced? It is because he 
 
PEINCIPLES 0¥ THE PENAL CODE. 307 
 
 appears no longer a feeble and miserable being wbom any one 
 may tread under foot;, the power of tie magistrate bas become 
 bis ; no one will be tempted to repeat an insult so signally 
 punished. His oppressor, who for a moment seemed so high, 
 has fallen from his oar of triumph ; the punishment to which he 
 has been subjected in the sight of so many witnesses proves that 
 he is no longer to be feared ; and nothing of his violence remains 
 except the recollection of his chastisement. What more can the 
 insulted party desire ? What more could he do if he had the 
 strength of a giant ? 
 
 If legislators had always fitly applied this system of satisfac- 
 tions, duelling never woidd have come iuto existence, for it 
 always has been, and now is, only a supplement to the insuffi- 
 ciency of the laws. In proportion as this void of legislation is 
 flUed by regulations adapted to the protection of honour, we shaU' 
 see the usage of duels diminished; aiid'it would cease at once if 
 a system of honorary satisfactions were introduced, conformed to 
 public opinion, and faithfully adininistered. !■■ In former times 
 duels served as a means of decision in a great'numbej of cases 
 in which it would be the; height of absurdity to employ them' 
 now. A suitor who -should send a challenge to his antagonist to 
 prove a title, or to establish a right, would be thought a fool; 
 but in the twelfth century that means was consfaiitly employed 
 for those purposes. Whence the.changfe? It comes from that 
 change ia jurisprudence which has gradually taken place. Jus- 
 tice growing more enlighte&ed, and directing itself by better 
 rules and forms, has offered means of redress preferable' to the 
 duel.* The same cause wUl continue to produce the same effects. 
 As soon as the law shall offer a certaia remedy against offences 
 that wound the honour, no one wiU be tempted to recut' to an 
 equivocal and dangerous means. Who loves pain and death ? ' 
 ITobody. Such a sentiment is equally a stranger to the heart of 
 the hero and to the. soul of the (Toward. It is the silence of the 
 
 * In ITrance, the duel in- civil cases was abolished by Philip-le-Bel, , in 
 1305. He had rendered the Parliament stationary at Paris, and had done 
 much for the establishment of judicial order. 
 
 X 3 
 
308 PEINCIPLES OF THE PENAL COBE. 
 
 laws, it is the forgetMness of justice, whicli drives the wise man 
 to this sole, sad resource of self-protection. 
 
 To give to honorary satisfaction all the extent and force of 
 whioh it is susceptihle, the definition of offences against honour 
 ought to have latitude enough to embrace them aU. FoUoW 
 public opinion, step by step; be its faithful interpreter. AU 
 which opinion regards as an assault upon honour, let the laws so 
 regard. Is a word, a gesture, a look sufficient in the public eye 
 to constitute an insult ? — that word, that gesture, that look, in 
 the view of justice, should constitute an offence. The intent to 
 injure is an injury. Everything intended to testify contempt for 
 a man, or to draw contempt upon him, is an insult, and ought to 
 have its reparation. 
 
 Is it said that these insulting signs, doubtful in their nature, 
 fugitive and often imaginary, would be difficult to ascertain, and 
 that persons easily offended, seeing an insult where there was 
 none, might subject the innocent to undue punishment ? 
 
 This danger amounts to nothing; for it is quite easy to trace the 
 Une of separation between real and imaginary injuries. This may 
 be accomplished by allowing the plaintiff to question the defendant 
 as to his intention — " Did you design by such a word or action 
 to testify contempt for such a person ?" If the defendant denies 
 the intention, his answer, true or false, is enough to purge the 
 honour of him who has been, or who thinks himself offended. 
 For even if the injury were quite imequivocal, to deny it is to 
 have recourse to falsehood; it is the avowal of a fault, it is 
 the betrayal of fear or weakness; in one word, it is an act of 
 inferiority, it is to humble one's self before an adversary. 
 
 In arranging the catalogue of offences which have the character 
 of insult, there are some necessary exceptions. Care must be 
 taken not to involve in a decree of proscription useful acts of 
 public censure, an exercise of the power of the popular sanction. 
 There must be reserved to friends and to superiors the authority 
 of correction and reprimand; it is necessary to protect the liberty 
 of history, and the liberty of criticism. ' 
 
PEINCIPLES OF IHE PENAL COBB. 809 
 
 CHAPTEE XVI. 
 
 Vindictive Satisfaction. 
 
 This subject does not require many particular rules. Every tinii 
 of satisfaction, as it is a punishment to the offender, naturally 
 produces a pleasure of T^engeance to the injured party. 
 
 That pleasure is a gain ; it calls to mind Samson's riddle — it is 
 the sweet coming out of the terrible, it is honey dropping from 
 the lion's mouth. Produced without expense, a clear gain result- 
 ing from an operation necessary on other accounts, it is an enjoy- 
 ment to be cultivated, like any other ; for the pleasure of ven- 
 geance, abstractly considered, is, lite every other pleasure, a good 
 in itself. It is innocent while restrained within the limits of the 
 law ; it only becomes criminal at the moment when it breaks 
 those limits. It is not vengeance which is to be regarded as the 
 most malignant and dangerous passion of the human heart ; it is 
 antipathy, it is intolerance — the hatreds of pride, of prejudice, of 
 religion, of politics. The enmity which is dangerous is not that 
 which is well founded, but that which springs up without any 
 substantial cause. 
 
 IJseful to the individual, this motive is also useful to the public ; 
 indeed, it is necessary. It is this vindictive satisfaction which 
 sets the tongues of witnesses in motion ; it is this which animates 
 the accuser and engages him in the public service, in spite of the 
 embarrassments, the expenses, the enmities to which it exposes 
 him ; it is this, too, which surmounts the public pity in the punish- 
 ment of criminals. Take away this resource, and the power of 
 the laws will be very limited ; or, at all events, the tribunals 
 will not obtain assistance, except for money — a means not only 
 burdensome to society, but exposed to other very serious objections. 
 
 Common moralists, always duped by words, are not able to 
 comprehend this truth. The spirit of vengeance is odious ; all 
 satisfaction drawn from that source is faulty; forgiveness of 
 injuries is the first of virtues. No doubt those implacable cha- 
 racters which no satisfaction can soften are odious, and ought 
 
310 PBITTCIPIES OF THE PENAL CODE. 
 
 to lie SO. Forgetfulness of injuries is a virtue necessary to 
 hiunanity ; but it becomes a virtue only after justice has done its 
 ■work, when it has furnished or denied a satisfaction. Before that, 
 to forget injuries is to invite their repetition ; it is not being the 
 ftiend, it is being the enemy of society. "What more can crime 
 desire than an arrangement by which offences shall be always 
 pardoned ? 
 
 "What ought to be done to afford this vindictive satisfaction ? 
 Everything which justice requires for the sake of satisfactions of 
 other kinds and for the punishment of the offence, but nothingmore. 
 The least excess consecrated to the sole object of vengeance would 
 be a pure evil. Inflict the proper punishment, and let the injured 
 party derive from it such a degree of satisfaction as comports with 
 his situation, and of which his nature is susceptible. 
 
 But though nothing should be added to the severity of 
 punishment vrith this particular end in view, the punishment 
 may be modified for the accomplishment of this end, according 
 to what may be supposed to be the sentiments of the injured 
 party, from his position or from the nature of the offence. The 
 preceding chapter contains some examples of this sort; others 
 will be given when treating of the choice of punishments. 
 
 CHAPTER XVII. 
 
 Suhstitutive Satisfaction; or, Satisfaction at tlie charge of 
 a Third Party. 
 
 In ordinary cases, the expense of satisfaction ought to fall upon 
 the author of the-evU; because, falling in that way, it tends in 
 quality of punishment to prevent the evil — that is, to diminish 
 the frequency of the offence. Where it falls upon another person, 
 it has no such tendency. 
 
 "Where this reason does not exist, with regard to the first 
 respondent, the law of responsibility must be modified in conse- 
 quence ; or, in other terms, a third person must be called in to 
 pay, instead of the author of the damage, when he cannot him- 
 
PEINCIPIES OF THE PElfAL CODE. 311 
 
 self furnish, the satisfaction, andwhen such an obligation imposed 
 upon a third person tends to prevent the offence. 
 
 This may happen in the following cases : — 1st. The responsi- 
 bility of a master for his servant. 2nd. The responsibility of a 
 guardian for his ward. 3rd. The responsibility of a father for 
 his children. 4th. The responsibility of a mother for her chil- 
 dren, in her character of guardian. 5th. The responsibility o£ a 
 husband for his wife. 6th. The responsibility of an innocent 
 person who profits by the offence. 
 
 I. Eesponsibiliit oe a Masiee. — This responsibility is founded 
 upon two reasons, the one of security, the other of equality. This 
 obKgatiQn imposed upon the master acts like a punishment, and 
 diminishes the chance of like mishaps. He is interested to know 
 the character, and to watch over the conduct of those for whom he 
 is responsible. By making him accountable for neglect of this duty, 
 the law appoints him a police inspector and a domestic magistrate. 
 
 Besides, the condition of a master almost necessarily supposes 
 a certain fortune, the quality of being an injured party supposes 
 nothing of that sort. Since an inevitable evil lies between two 
 parties, it is best to throw the weight of it upon him who has 
 most means of sustaining it. 
 
 This responsibility may have some inconveniences, but if it 
 did not exist there would be more and worse ones. If a master 
 wished to occasion a trespass upon the lands of his neighbour, to 
 expose him to some accident, to inflict a piece of vengeance upon 
 him, to make him live in contiiiual inquietude, he would only 
 need choose some vicious domestics, to whom he might hint the 
 service of his passions and his hatreds, and that without com- 
 manding anything, without being an accomplice, and without 
 affording any evidence of participation ; always ready to sustain 
 or to disavow, he would make them the instruments of his 
 designs, and wpuld run no risks himself.* By showiag them a 
 little more than ordinary confidence, by taking advantage of theJt 
 
 * There are many ways of injuring another without any trace of 
 participation. I have been told by a French lawyer, that when the 
 Parliaments wished to save a culprit, they selected with design some 
 
312 PEINCIPLES OF THE PENAl COBE. 
 
 attachment, their devotedness, their servile vanity, there is no- 
 thing he could not attain by general instigations without expos- 
 ing himself to the danger of commanding anything in particular, 
 and he -would enjoy with impunity the evil which he had done 
 by their hands. " Unfortunate that I am," cried Henry II., one 
 day, when wearied with the haughtiness of an insolent prelate. 
 " "What ! so many servants who boast their zeal, and not one 
 who dares to avenge me !" The murder of Becket was the fruit 
 of this imprudent or criminal apostrophe. 
 
 What, in the master's case, diminishes in a great degree the 
 danger of his responsibility, is the responsibility of the servant. 
 The real author of the evil, as far as circumstances permit, ought 
 to be the first to support its troublesome consequences ; he ought 
 to be charged with the burden of satisfaction according to his 
 capacity ; so that a negligent or vicious servant may not cooUy 
 say, while doing the damage, " It is my master's affair, not mine." 
 
 Besides, the responsibility of the master is not always the 
 same ; it must vary according to circumstances, which must be 
 examined with attention. 
 
 The first thing to be considered is the degree of connection 
 subsisting between the master and the servant. If the question 
 is of a day-labourer, or a man engaged by the year ; of a work- 
 man who lodges abroad, or in the house ; of an apprentice or a 
 slave ; it is clear that the closer the connection is the greater 
 ■should be the responsibility. A foreman is less dependent upon 
 his employer than a lackey upon his master. 
 
 The second thing to be considered is the nature of the work 
 upon which the servant is employed. The presumptions against 
 the master will be weaker in those cases in which his interest is 
 most exposed to suffer by the negligence of his servants, and 
 stronger in the contrary cases. In the first case the master 
 already has a sufficient motive to be watchful ; in the second he 
 may not have that motive, and the law should supply it. 
 
 unskilful person to report the cause, hoping that his blunders would leave 
 some loop-hole for annulling the sentence ! Chicane so artful is almost 
 entitled to the epithet of genius. 
 
PEINCrPLES OP THE PENAL CODE. 313 
 
 ' Third. The master is peculiarly responsible when the mischief 
 has happened by occasion, or in the act of his service : because ir 
 is to be presumed that he directed it, or at least that he foresa^v 
 what has happened ; and because he can easier watch his servants 
 at those times than while they are at liberty. 
 
 There is a case which seems to reduce to a low degree, if it 
 does not altogether annihilate, the strongest reason for the master's 
 responsihility : viz., when the evil is caused by a grave offence, 
 accompanied consequently by a proportionate punishment. If a 
 man of mine, for example, having a personal quarrel with my 
 neighbour, sets his bam on fire, ought I to be responsible for a 
 damage which I could not prevent ? If the feUow did not fear 
 being hung, would he fear a dismissal from my service ? 
 
 Such are the presumptions which serve as a basis to respon- 
 sibility ; presumption of negligence on the part of the master ; 
 presumption of his superiority in wealth. But it is not to be 
 forgotten that presumptions are nothing when belied by facts. 
 For example, an accident has happened by the overturn of a 
 vehicle. Nothing is known of the injurad party. It is presumed 
 that he stands in need of an indemnity from the owner of the 
 vehicle, who offers himself to the imagination as being well able 
 to support the loss. But what becomes of this presumption, when 
 it is known that this owner is a poor farmer, and the injured 
 party an opulent landlord ; that the first would be ruined if 
 obliged to pay an indemnity, hardly of the slightest consequence 
 to the other ? Presumptions ought to guide, but not to govern 
 us. The legislator ought to consult them in establishing general 
 rules ; he should leave it to the magistrate to modify their appli- 
 cation according to individual cases. 
 
 The general rule would establish the responsibility of the 
 master ; but the magistrate,' according to circumstances, might 
 change this arrangement, and make the weight of the loss fall 
 upon the true author of the evil. 
 
 The greatest abuse which can result from leaving to the magis- 
 trate the utmost latitude in this distribution will be to produce, 
 in certain cases, the same iaconvenience- which must necessarily 
 
314 PBINCIPLES OE THE PENAI CODE. 
 
 result, from a general and inflexible rule. Should tlie magistrate 
 on one occasion favour the author of the evil, and the master on 
 another ? He who suffers wrong will suffer no more from this 
 partiality than he might have suffered from the inflexibility of 
 the law. 
 
 In our systems of law, no attention has been given to these 
 modifications. The entire burden of the loss has been thrown 
 sometimes upon the servant who has caused thei damage, and 
 sometimes upon the master; whence it follows that sometimes 
 security and sometimes equality have been neglected, both of 
 which ought alternately to have the preference, according to the 
 nature of the case. 
 
 II. Eesponsibiiiit or a GrtrAEDiAif. — The ward is not an 
 advantage to the guardian ; in general he is a burden. If the 
 ward has sufficient means to furnish satisfaction, it is not neces- 
 sary that another should pay for his acts. If he has no means of 
 his own, the wardship is too heavy a burden in itself to be loaded 
 with factitious responsibility. All that security requires is to 
 attach to the negUgenee of the guardian, proved or even presumed, 
 an amend more or less weighty, according to the nature of the 
 proofs, but such as never to exceed the amount required for 
 satisfaction. 
 
 III. Eesponsibiiiit of a Father. — If a master ought to be 
 responsible for the faults of his servants, for a much stronger 
 reason a father ought to be so for those of his children. If a 
 master can and ought to watch over those who depend upon him, 
 it is a duty more pressing upon a father, and much easier to be 
 fulfilled. He not only exercises over his children the authority 
 of a domestic magistrate, but he has all the ascendancy of affec- 
 tion. He is not only the guardian of their physical existence, 
 he has it in his power to be the controller of their feelings. If a 
 master may abstain from employing, or may dismiss upon dis- 
 covery, a servant who evinces dangerous dispositions, a father, 
 who can fashion at his pleasure the character and habits of his 
 children, is justly thought to be the author of all the dispositions 
 which they manifest. If they are depraved, it is almost always 
 
PKINCrPtES OP THE PENiX CODE. 315 
 
 the effect of his negligence or of his vices ; and he ought to bear 
 the consequences of an evil ■wfhich he might have prevented. 
 
 If, after a reason so weighty, there needs yet another argument, 
 it maybe said that children, saving the rights whichtheir quality 
 of sensitive beings confers upon them, are a part of the father's 
 property, and ought so to be regarded. He who enjoys the 
 advantages of the possession, ought to support its inconveniences. 
 The good is more than a compensation for the evil. It would be 
 strange if the loss or depredations occasioned by children should 
 be borne by an individual who knows nothing of them, except by 
 their heedlessness or their malice, rather than by him who finds 
 in them the greatest source of his happiness, and who indemnifies 
 himself by a thousand hopes for the actual cares of their education. 
 
 But this responsibility has a natural limit. The majority of a 
 son, or the marriage of a daughter, putting an end to the father's 
 authority, puts an end also to his legal responsibility. He ought 
 not to be answerable for actions which he no longer has the 
 power to prevent. 
 
 To perpetuate for life the father's responsibility, on the plea 
 that he is the author of the vicious dispositions of his children, 
 would be unjust and cruel ; for in the first place it is not true 
 that all the vices of an adult are attributable to the defects of his 
 education. Diverse causes of corruption, after the epoch of inde- 
 pendence, may triumph over the most virtuous education. Be- 
 sides, the condition of a father is suflSciently unfortunate when 
 the bad dispositions of a son arrived at man's estate break out 
 into offences. "What he has already suffered in his family, the 
 anguish he feels from the misconduct or dishonour of a son, is a 
 kiad of punishment which nature inflicts upon him, and which 
 the law need not aggravate. It would be pouring poison upon 
 his wounds, and that without any hope of repairing the past, or 
 providing against the future. Those who have attempted to 
 justify such barbarous jurisprudence by the example of China, 
 have not recollected that the authority of a father, ending in that 
 countiy only with his life, it is but just that his responsibility 
 should continue as long as his power. 
 
316 PEINCIPLES OP THE PENAL CODE. 
 
 IV. Eesponsibiliit of ihe Mothee. — The obKgation of the 
 mother is naturally regulated by her rights, on which her means 
 of control depend. If the father is alive, the mother's responsi- 
 
 ■ bility, like her- power, remains absorbed as it were in that of her 
 husband. If he is dead, and she has taken the reins of domestic 
 government into her own hands, she becomes responsible for those 
 who are subject to her authority. 
 
 V. Eesponsibilitt of a HtrsBANB. — This case is as simple as 
 the preceding. The obligation of a husband depends upon his 
 rights. As the administration of the property belongs to him 
 alone, unless the husbaiid were answerable, the injured party 
 would be without remedy. This reasoning supposes the order of 
 things generally established ; that order so necessary to the peace 
 of families, to' the education of children, to the maintenance of 
 manners, — that order so ancient and universal, which subgects 
 the wife to the power of the husband. As he is her chief and her 
 guardian, he is answerable for her in the eye of the law. He is 
 even charged with a responsibility still more delicate before the 
 tribunal of opinion ; but that is a matter which does not apper- 
 taia to the present subject. 
 
 VI. Eesponsibilitt of an innocent Pfkson. — It often happens 
 that a person, without having had any share in an offence, derives 
 from it a certain and perceptible profit. Is it not proper that 
 this person should be called upon to indemnify the injured party, 
 if the offender cannot be found, or cannot furnish an in- 
 demnity ? 
 
 Such a procedure would be conformable to the principles which 
 we have laid down, namely, — first, regard for security : for there 
 might be an aiding and abetting, though there might be no proof 
 of it ; next, the care of equality : since it is better for one person 
 merely to be deprived of a gain, than for another to be left to 
 suffer a loss. 
 
 Examples will make this clearer. By means of a breach made 
 in a dike, he who was in possession of the benefit of irrigation 
 has been deprived of it, and it has been bestowed upon another. 
 He who comes into the enjoyment of this unexpected advantage 
 
PKINCIPLES OP THE PENAL CODE. 317 
 
 ought to stare a part at least of his gain with the person who has 
 experienced the loss. 
 
 A tenant for life, whose property passes by settlement to a 
 stranger, is kiUed, and leaves a family in want. The residuary 
 proprietor, who realizes in consequence a premature possession, 
 ought to make some allowance to the children of the deceased. 
 
 A benefice is vacated, because the possessor has been killed ; 
 if he leaves a wife and children in poverty, the successor owes 
 them an indemnity proportionate to their need and to his gain. 
 
 CHAPTEE XVIII. 
 
 Subsidiary Satisfaction at the Public Expense. 
 
 The best fund whence satisfaction can be drawn is the property 
 of the delinquent, — since it then performs, as we have seen, with 
 superior convenience the functions both of satisfaction and of 
 punishment. 
 
 But if the offender is without property, ought the injured 
 person to remain without satisfaction ? ITo ; for, according to 
 the reasons already laid down, satisfaction is almost as necessary 
 as punishment. It ought to be furnished out of the public 
 treasury, because it is an object of public good, and the security 
 of all is interested in it. This obligation of the public to furnish 
 satisfaction is founded upon a reason which has the evidence of 
 an axiom, A pecuniary charge divided among the mass of indi- 
 viduals is nothing to each contributor, in comparison with what 
 it would be to an individual or a small number. 
 
 If insv/rance is useful in enterprises of commerce, it is not less 
 so iu the great social enterprise in which the associates find them- 
 selves united as partners, in consequence of a train of chances, 
 without knowledge or choice on their part, without the power of 
 eeparation, or of securing themselves by any prudential means 
 from a multitude of snares which they mutually spread for each 
 other. The calamities which spring from offences are evils not 
 less real than those which result from accidents of nature. If the 
 
318 PllINCIPLES OF THE PENAIi CODE. 
 
 owner of a house sleeps sounder because it is insured against flre, 
 Ms sleep will be sounder yet if he is also insured against robbery. 
 Putting out of sight the abuses to which it is liable, it seems im- 
 possible to give too much extension to a means so ingenious, 
 which renders real losses so slight, and which giveS so much seca- 
 rity against eventual evils. 
 
 But all kinds of ihsv/ranoes are exposed to great abuse from 
 fraud or negUgenoe; fraud on the part of those who feign or 
 exaggerate losses for the sake of obtaining indemnities not due ; 
 negligence on the part of the assurers in not taking necessary 
 precautions, or on the part of the assured, who use less diligence' 
 in protecting themselves against losses which are certain to be 
 made up. 
 
 In a system of satisfactions at the public expense we have, then, 
 to fear — 
 
 Ist. A secret connivance between a party pretending to be 
 injured and the author of a pretended offence to obtain an 
 indemnity not due. 
 
 2nd. Too great security on the part of individuals, who, not 
 having the same consequences to fear, will no longer make the 
 same efforts for the preveiition of offences. 
 
 This second danger is little to 'be dreaded. Nobody wUl 
 neglect an actual possession certain and present in the hope of 
 recovering, in case of loss, an equivalent for the thing lost, even' 
 a perfect equivalent ; and when we consider that an indemnity 
 cannot be obtained without trouble and expense, that there is a 
 temporary privation, that the vexations of a claim and its pursuit 
 are to be encountered, and the disagreeable part of an accuser to 
 be played ; and that, after aU, under the best system of procedure, 
 success is always doubtful j-^-these things considered, it is plain 
 that every man will stiU. have motives enough to watch over his 
 property, and not to encourage offences by negligence. 
 
 On the side of fraud the danger is much greater: It can only 
 be prevented by detailed precautions, which will be explained 
 elsewhere. It wiU here suffice to point out, as examples,- two 
 opposite cases, one in which' the utUity of the remedy surpasses 
 
PKINCIPLES OP THE PENAL CODE. 319 
 
 th.e danger of abuse, the other in whicli the danger of abuse is 
 greater than the utility of the remedy. 
 
 Whenever the damage is occasioned by an offence of which 
 the punishment is severe, and the author of which must be juridi- 
 cally ascertained, and also the fact of an offence committed, fraud 
 is very difficult. The only method an impostor, who pretends to 
 be injured, can. employ to procure an accomplice, is to give him a 
 part of the profits of the fraud ; but, provided there has not been 
 a neglect of the clearest principles of proportion between offences 
 and punishments, the punishment which such an accomplice must 
 encounter Avould be more than equivalent to the total profit of 
 the &aud. 
 
 Observe, that the offender must be judicially convicted before 
 the satisfaction is granted ; without that precaution the public 
 treasure would be exposed to pillage. ITothing would be more 
 common than stories of imaginary robberies, of pretended thefts 
 committed by unknown persons who had taken to flight, in a 
 manner the most secret, and in nights the darkest. But when 
 it; is necessary to bring the offenders into court, a secret imder- 
 Standing is not easy. This is not a part which can be readily 
 filled ; for, besides the certainty of punishment for the alleged 
 offence encountered by the person who charges himself with it, 
 in ease the imposture be discovered, there wiH be still a particular 
 and additional punishment to be shared by both accomplices ; 
 and if it be recollected how difficult it is to fabricate a probable 
 history of an offence absolutely imaginary, it is likely that these 
 kinds of frauds will be very rare, if they ever happen at aU. 
 
 The danger most to be apprehended is the exaggeration of a 
 loss resulting from a real offence. But then it is necessary that 
 the offence be susceptible of such, sort of falsehood, — a case suffi- 
 ciently rare. 
 
 It would seem, then, that it may be regarded as a general 
 maxim, that in all cases in which the punishment of the offence ' 
 is severe, there is no occasion for apprehending that an imaginary 
 offender will charge himself with the offence for the sake of a 
 doubtful gain. 
 
320 PEINCIPLES OF THE PENAL CODE. 
 
 But, for the opposite .reason, TvLen the damage results from an 
 offence of -which the punishment is slight or nothing, if the puh- 
 lic treasure were responsible in such cases, the danger of abuse 
 ■would he at its highest point. Insolvency is an example of this 
 sort. Who so poor that he would not be trusted, if the public 
 were his security? "What treasure would sufflc3 to pay the 
 creditors, whose debtors were reaUy deficient, and how easy it 
 would he to get up false debts ? 
 
 Not only would such an indemnity be liable to abuse, it would 
 be unreasonable ; for, in the transactions of commerce, the risk of 
 loss makes a part of the price of merchandise and of the interest 
 of money. Let the merchant be sure of losing nothing, and he 
 would sell cheaper ; so that, to demand an indemnity from the 
 public for a loss thus made up for beforehand, would be asking to 
 be paid twice over. 
 
 There are still other cases in which satisfaction ought to be a 
 public charge. 
 
 1 st. The case of physical calamities, such as inundations and 
 fires. Aids furnished by the state to sufferers in that way are 
 not solely founded on the principle that an evil divided among 
 many becomes light ; they rest also upon this other principle — 
 that the state, as protector of the national wealth, is interested to 
 prevent the deterioration of its domain, and to re-establish the 
 means of reproduction in places which have suffered. Such were 
 the liberalities, so called, of the great Erederic towards provinces 
 desolated by some scourge ; they were acts of prudence and con-, 
 servation. 
 
 2nd. Losses and misfortunes in consequence of hostilities. 
 Those who have been exposed to the invasions of a public enemy 
 have so much the clearer right to a public indemnity, since they 
 may be considered as having sustained a shock which threatened 
 all the citizens, and as having been by their situation the most 
 exposed points of the public defence. 
 
 3rd. Evils resulting from unintentional mistakes of the ministers 
 of justice. An error of justice is always of itself a subject of 
 lamentation ; but that such an error, when known, should not be 
 
mnrciPLES of the penal code. 321 
 
 repaired by proportional indemnities, is an overthrow of social 
 order. Ought not the public to follow the same rules of equity 
 which it imposes upon individuals ? Is it not an odious thing 
 that the government should exert its power to exact severely all 
 that is due to it, and should avail itself of the same means to 
 refuse the payment of its own debts ? But this obligation is so 
 evident, that no attempt to demonstrate it can make it clearer. 
 
 4th. Eesponsibility of a community for a high-handed offence 
 committed in a public part of its territory. It is not properly the 
 public which is responsible in this case ; it is the district or the 
 province which should be taxed for the reparation of an offence 
 resulting from negligence of police. 
 
 In cases of competition, the interests of an individual ought to 
 take precedence of those of the treasury. "What is due to an. 
 injured party under the title of satisfaction ought to be paid in 
 preference to what is due to the public by way of fine. This is 
 not the decision of vulgar jurisprudence, but it is the decision of 
 reason. The loss to an individual is an evil that is felt ; the gain 
 to the public is a good felt by nobody. What the offender pays 
 in quality of fine is a punishment, and nothing more ; what he 
 pays in quality of satisfaction is also a punishment, and a severer 
 one ; it is, beside, a satisfaction to the injured party, and so far a 
 good. "What I pay to the state, a creature of reason with which 
 I have no quarrel, affects me only with the sort of chagrin I 
 should feel if I dropped the same money into a well ; what I pay 
 to my adversary, the satisfaction which I am forced to make, at 
 my own expense, to him I wished to injure, is a degree of humi- 
 liation which gives to punishment its most appropriate character. 
 
322 
 
 PART THIED. 
 
 PUNISHMENTS. 
 
 CHAPTEK I. 
 
 Punishments which ought not to he inflicted. 
 
 The cases in wHcli punisliinent ought not to be inflicted may be 
 reduced to four beads : wben punishment would be — 1st, Mis- 
 applied ; 2nd, Inefficacious ; 3rd, Superfluous ; 4th, Too expensive. 
 
 I. Pttnishments MisAPMiEn. — Punishments are misapplied 
 wherever there is no real ofience, no evil of the first order or of 
 the second order ; or where the evil is more than compensated by 
 an attendant good, as in the exercise of political or domestic 
 authority, in the repulsion of a weightier evil, in self-defence, &c. 
 
 If the idea of what constitutes a real offence has been clearly 
 apprehended, it will be easy to distinguish real from imaginary 
 offences — from those' acts, innocent in themselves, which have 
 been arranged among offences by prejudice, antipathy, mistakes 
 of government, the ascetic principle, in the same way that several 
 wholesome kinds of food are considered among certain nations 
 as poisonous or unclean. Heresy and witchcraft are offences of 
 this class. 
 
 II. Inepficacioits Punishments. — I call those punishments 
 inefficacious which have no power to produce an effect upon the 
 wiU, and which, in consequence, have no tendency towards the 
 prevention of like acts. 
 
 Punishments are inefficacious when directed against individuals 
 who could not know the law, who have acted without intention, 
 
PBINCIPLES OP THE PENAI CODE. 323 
 
 ■Who have done the evil innocently, under an erroneous supposition, 
 or by irresistible constraint. Children, imbeciles, idiots, though 
 they may be influenced, to a certain extent, by rewards and 
 threats, have not a sufficient idea of futurity to be restrained by 
 punishments. In their case laws have no efficacy. 
 
 If a man is determined to act by a fear superior to that of the 
 heaviest legal punishment, or by the hope of a preponderant good, 
 it is plain that the law can have little influence over him. "We 
 have seen laws against duelling disregarded, because men of 
 honour are more afraid of shame than of punishment. Punish- 
 ments directed against religious opinions generally fail to be 
 effectual, because the idea of everlasting reward triumphs over 
 the fear of death. According as these opinions have more or less 
 influence, punishment, in such cases, is more or less efficacious. 
 
 III. SuPEEFLiroTTS PUNISHMENTS. — Puuishmeuts are superfluous 
 in cases where the same end may be obtained by means more mild 
 — ^instruction, example, invitations, delays, rewards. A man 
 spreads abroad pernicious opinions : shall the magistrate therefore 
 seize the sword and punish him ? Fo ; if it is the interest of one 
 individual to give currency to bad maxims, it is the interest of a 
 thousand others to refute him. 
 
 IV, Punishments too Expensive. — If the evil of the punish- 
 ment exceeds the evil of the offence, the legislator will produce 
 more suffering than he prevents. He will purchase exemption 
 from a lesser evil at the expense of a gxeater evU. 
 
 Two tables should be kept in view — one representing the evil 
 of offences, the other the evil of punishments. 
 
 The following evils are produced by every penal law : — 1st. 
 M)il of coercion. It imposes a privation more or less painful 
 according to the degree of pleasure which the thing forbidden 
 has the power of conferriag. 2nd. The sufferings caused ly the 
 punishment, whenever it is actually carried into execution. 3rd. 
 M}il of apprehension suffered by those who have violated the law 
 or who fear a prosecution in consequence. 4th. Evil of false 
 prosecutions. This inconvenience appertains to all penal laws, 
 but particularly to laws which are obscure and to imaginary 
 
 T 2 
 
824 PEINCIPLES OP THE PENAL CODE. 
 
 offences. A general antipathy often produces a frightful dispo- 
 sition to prosecute and to condemn upon suspicions or appearances. 
 5th. Derivative evil suffered by the parents or friends of those who 
 are exposed to the rigour of the law. 
 
 Such is the table of evils or of expenses which the legislator 
 ought to consider every time he establishes a punishment. 
 
 It is from this source that the principal reason is drawn for 
 general amnesties, in case of those compKcated offences which 
 spring from a spirit of party. In such cases it may happen that 
 the law envelopes a great multitude, sometimes half the total 
 number of citizens, and perhaps more than half. "Will you punish 
 all the guilty ? "Will you only decimate them ? In either case 
 the evil of the punishment is greater than the evil of the 
 offence. 
 
 If a delinquent is loved by the people, so that his punishment 
 wiU cause national discontent ; if he is protected by a foreign 
 power whose good- will it is necessary to conciliate ; if he is able 
 to render the nation some extraordinary service ; — in these parti- 
 cular cases the grant of pardon is founded upon a calculation of 
 prudence. It is apprehended that punishment of the offence wiU 
 cost society too dear. 
 
 CHAPTER II. 
 
 Aisii 
 Regula, peccatis quce pcenas irroget aquas ; 
 Ne scuUca digmmt, horrihile sectere flagello. 
 
 Hob. I. i. Sat. iii. 
 
 Let's have a rule 
 WHoh deals to crimes an equal punishment : 
 Nor tortures with the horrid lash for faults 
 Worthy a birolieu twig. 
 
 Proportion between Offences and Punishments. 
 
 Montesquieu perceived the necessity of a proportion between 
 offences and punishments. Beccaria insists upon its importance. 
 
PRINCirLES OE THE PENAL COBB. 325 
 
 But they rather recommend than explain it ; they do not tell in 
 ■what that proportion consists. Let us endeavour to supply thia 
 defect, and to give the principal rules of this moral arithmetic. 
 
 FiEST EuLE. — The evil of the punishment must he made to exceed 
 the advantage of the offence. 
 
 The Anglo-Saxon laws, which established a price for the lives 
 of men, two hundred shillings for the murder of a peasant, six 
 times as much for that of a noble, and thirty-six times as much for 
 that of the king, notwithstanding this show of pecuniary propor- 
 tion, were evidently deficient in moral proportion. The punishment 
 might appear as nothing compared to the advantage of the offence. 
 
 The same error is committed whenever a punishment is decreed 
 which can only reach a certain point, while the advantage of the 
 offence may 'go much beyond. 
 
 Some celebrated authors have attempted to establish a contrary 
 maxim. They say that punishment ought to be diminished in 
 proportion to the strength of temptation ; that temptation dimi- 
 nishes the fault ; and that the more potent seduction is, the less 
 evidence we have of the offender's depravity. 
 
 This may be true ; but it does not contravene the rule above, 
 laid down : for to prevent an offence, it is necessary that the 
 repressive motive should be stronger than the seductive motive. 
 The punishment must be more an object of dread than the offence 
 is an object of desire. An insufiicient punishment is a greater 
 evil than an excess of rigour ; for an insufficient punishment is 
 an evil wholly thrown away. No good results from it, either to 
 the public, who are left exposed to like offences, nor to the 
 offender, whom it makes no better. "What would be said of a 
 surgeon, who, to spare a sick man a degree of pain, should leave ■ 
 the cure unfinished ? Would it be a piece of enlightened humanity 
 to add tothepainsof the disorder the tormentof a useless operation? 
 
 Second Ettze. — The more deficient in certainty a punishment 
 is, the severer it should he. 
 
 No man engages in a career of crime, except in the hope of 
 impunity. If punishment consisted merely in taking from the 
 guilty the fruits of his offence, and if that punishment were 
 
326 PEINCIPLES OF THE PENAL CODE. 
 
 inevitable, no offence would ever be committed ; for what man 
 is so foolish as tp run the risk of committing an offence with 
 certainty of nothing but the shame of an unsuccessful attempt ? 
 In aU cases of offence there is a calculation of the chances for and 
 against ; and it is necessary to give a much greater weight to the 
 punishment, in order to counterbalance the chances of impunity. 
 
 It is true, then, that the more certain punishment is, the less 
 severe it need be. Such is the advantage that results from sim- 
 plicity of laws, and a good method of procedure. 
 
 For the same reason it is desirable that punishment should 
 follow offence as closely as possible ; for its impression upon the 
 minds of men is weakened by distance, and, besides, distance adds 
 to the imcertainty of punishment, by affording new chances of 
 escape. 
 
 Third Eule. — Where two offences me in coryunction, the greater 
 offence ought to ie subjected to severer punishment, in order that the 
 delinquent may have a motive to stop at the lesser. 
 , Two offences may be said to be in conjunction when a man 
 has the power and the will to commit both of them. A high- 
 wayman may content himself with robbing, or he may begin 
 with murder, and finish with robbery. The murder should be 
 punished more severely than the robbery, in order to deter him 
 from the greater offence. , 
 
 This rule would be perfectly carried out if it could be so ordered 
 that for each portion of evil committed there should be a corre- 
 sponding portion of punishment. Let a man who has stolen ten 
 crowns be punished as severely as if he had stolen twenty, and he 
 will be a fool to take the less sum in preference to the greater. 
 Equal punishment for unequal offences is often a motive for com- 
 mitting the greater offence. 
 
 PoTmiH EuiE. — The greater an offence is, the greater reason there 
 is to haaard a severe punishment for the chance of preventing it. 
 
 We must not forget that the infliction of punishment is a cer- 
 tain expense for the purchase of an uncertain advantage. To 
 apply great punishments to small offences is to pay very dearly 
 for the chance of escaping a slight evil. 
 
PKINCIPtES OE THE PElfAI CODE. 337 
 
 The English, law which condemned women to, be burnt for 
 passing counterfeit coin, was a direct invasion of this rule of pro- 
 portion. If burning were a punishment ever to be adopted, it 
 ought to be confined to the single case of incendiary homicides. 
 
 PiPTH EuLE. — The same punishment for the same offence ought not 
 to he inflicted wpon all delinquents. It is neoessary to pay some 
 regard to the circumstanoes which affect sensihility. 
 
 The same nominal punishments are not the same real punish- 
 ments. Age, sex, rank, fortune, and many other circumstances, 
 ought to modify the punishments inflicted for the same offence. 
 If the offence is a corporal injury, the same pecuniary punish- 
 ment would be a trifle to the rich, and oppressive to the poor. 
 The same punishment which would brand with ignominy a man 
 of a certain rank, would not produce even the slightest stain in 
 case the offender belonged to an inferior class. The same im- 
 prisonment would be ruin to a man of business, death to an infirm 
 old njan, and eternal disgrace to a woman, while it would be 
 next to nothing to an individual placed under other circumstances. 
 
 Let it be observed,' however, that the proportion between 
 punishments and offences ought not to be so mathematically fol- 
 lowed up as to render the laws subtle, complicated, and obscure. 
 Brevity arid simplicity are a superior good. Something of 
 exact proportion may also be sacrificed to render the punishment 
 more striking, more fit to inspire the people with a sentiment of 
 aversion for those vices which prepare the way for crimes. 
 
 CHAPTER III. 
 
 0/ Prescription, as regards Punishment. 
 
 OtroHT punishment to be limited in point of time ? — in other 
 words, if the delinquent is successful for a given period in evad- 
 ing the law, ought he to escape punishment ? Shall the la-^ in 
 such a ease no longer take cognizance of the offence ? This is 
 a question still contested. There must always be much that is 
 arbitrary, both in the choice of offence^ which shaU have the 
 
.328 -. PEINOIPLES OF THE PENAI, CODE. 
 
 privilege of this pardon, and in the number of years after which 
 the privilege shall begin. 
 
 .Pardon can be safely allowed for offences of rashness and negli- 
 gence, offences resulting from a fault exempt from bad intention. 
 The very accident which makes such offenders puts thgm on their 
 guard, and thenceforth they are little to be feared. Por such 
 individuals pardon is a good ; and in such cases it is an evil to 
 nobody. 
 
 Prescription may also be extended to offences not completed, 
 to attempts that have failed. The delinquent, during the interval, 
 has undergone the punishment in part, — for to fear it is to feel 
 it. Besides, he has abstained from like offences, he has reformed, 
 he has become a useful member of society. He has recovered 
 his moral health without the employment of that bitter medicine 
 which the law had prepared for him. 
 
 But when the question relates to more serious offences, for 
 example, the fraudulent acquisition of a large sum of money, 
 polygamy, a rape, a robbery, it would be odious and fatal to 
 allow wickedness, after a certain time, a triumph over innocence. 
 Wo treaty should be had with malefactors of that character. Let 
 the avenging sword remain always hanging above their heads. 
 The sight of a criminal in the peaceful enjoyment of the fruit of 
 his crime, protected by the laws he has violated, is a consolation 
 to evil doers, an object of grief to men of virtue, a public insult 
 to justice and to morals. 
 
 To perceive all the absurdity , of an impunity acquired by 
 lapse of time, it is only necessary to imagine the law to be 
 expressed in terms like these : "But if the murderer, the robber, 
 the fraudulent acquirer of another's goods, shall succeed for 
 twenty years in eluding the vigilance of the tribunals, his address 
 shall be rewarded, his security shall be re-established, and th» 
 fruit of his crimes shall become his lawful possession." 
 
PKHTCIPLES OF THE PENAL CODE. 329 
 
 CHAPTEE IV. 
 
 Mistaken punishments, or Punishments misapplied,. 
 
 PirifisHMENT ought to bear directly upon the individual who is to 
 be subjected to its influence. If yoU desire to influence Titius, 
 it is upon Titius that the punishment ought to act. If a punish- 
 ment destined to influence Titius falls upon any one else than 
 Titius himself, it is quite clear that such a punishment is mis- 
 applied. 
 
 But a punishment directed against those -who are dear to a 
 man is a punishment to that man ; for he participates in the suf- 
 ferings of those to whom he is attached by sympathy, and a hold 
 can be got upon him by means of his affections. This doctrine 
 is true, but is it good.? Is it conformable to the principle of 
 utility ? 
 
 To ask if a punishment of sympathy acts with as much force 
 as a direct punishment, is to ask if, in general, attachments to 
 others are as strong as the love of one's self. 
 
 If self-love is the stronger sentiment, it follows that recourse 
 ,should not be had to punishments of sympathy till we have 
 exhausted all the direct sufferings of which human nature is 
 capable. No torture is so cruel that it ought not to be employed 
 before punishing the wife for the acts of the husband, or children 
 for the-offences of their father. 
 
 In punishments misapplied, four principal faults are per- 
 ceptible: — 
 
 1st. What' shall be thought of a punishment which must often 
 fail for want of objects on which to act ? If to inflict suffering 
 upon Titius you set about finding the persons who are dear to him, 
 you have no other guide than the domestic relations; you are 
 conducted by that thread to his father and his mother, his wife 
 and his children. The most cruel tyranny has attempted to go 
 no further. But there are many men who have no father nor 
 mother, no wife nor child. It is necessary, then, to apply to 
 this class of men a direct punishment; but the same direct 
 
33& PEINdPlES OP THE PENAL CODE. 
 
 punishment ihat answers in their case, will it not answer in 
 every case ? 
 
 2nd. And does not this punishment suppose sentiments which 
 may not exist ? If Titius does not concern himself about his 
 wife and children, if he has contracted a dislite to them, at the 
 very least he will be indifferent to their sufferings, and this part 
 of his punishment will not affect him. 
 
 3rd. But what makes this system so Mghtfal is the profasion, 
 the multiplication of evils involved in it. Consider the chain of 
 domestic connections, calculate the number of descendants that 
 a man may have ; the punishment is communicated from one to 
 the other; it spreads step by step like a contagion; it envelops 
 a crowd of individuals. To produce a direct pain equivalent to 
 one, it is necessary to create a pain indirect and misapplied, 
 equivalent to ten, to twenty, to thirty, to a hundred, to a 
 thousand. 
 
 4th. Punishment thus turned aside jBrom its natural course, 
 has not even the advantage of conforming to the public sentiment 
 of sympathy and antipathy. When the offender has paid his 
 personal debt to justice, the public vengeance is. satisfied, and 
 demands nothing more. If you pursue him beyond the scaffold, 
 and extend the punishment to an innocent and unhappy family, 
 the public pity presently revives ; an indistinct sentiment pro- 
 nounces the laws unjust; humanity declares against you; and 
 every day enlists new partisans on the side of your victim. Ke- 
 spect for the government, and confidence in it, is lessened in 
 every heart ; and all that is gained by this policy is a reputation 
 of ignorance with the wise, and of barbarity with the multitude. 
 
 The ties that bind men together are so complicated that it is 
 not possible completely to separate the lot of the innocent from 
 the lot of the guilty. The evil designed by the law for a single 
 individual bursts its bounds, and extends itself along all those 
 connecting ties of common sensibility which result from the 
 affections, from honour, and mutual interests, A whole family 
 is in suffering and in tears for the offence of one. But this evil 
 inherent in the nature of things, this evil which all the wisdom 
 
PEINCIPLES OP THE PENAL CODE. 331 
 
 4 
 
 and all the benevolence of the legislator cannot entirely prevent, 
 is no reproach to him, and does not constitute a misapplication 
 of punishment. If the father is compelled to undergo a punish- 
 ment for his offence, that punishment must, in the nature of 
 things, be a disadvantage to his children ; it cannot be avoided ; 
 but if after the death of a guilty father the paternal succession 
 is ravished from the innocent children, it is a voluntary act of 
 the legislator, who himself turns the punishment aside from its 
 legitimate channel. 
 
 The legislator, iu this respect, has two duties to fulfil. In the 
 first place he ought to avoid punishments misapplied in their 
 primitive application. The innocent son of the greatest criminal 
 ought to receive from the law as complete a protection as the 
 most illustrious citizen. In the second place, it is necessary to 
 reduce to its least term that portion of misapplied suffering which 
 faUs upon the innocent, in consequence of a direct punishment 
 inflicted on the guilty. If a rebel,.for example, is condemned to 
 perpetual imprisonment, or to death, everything has been done 
 against him which should be done. A total confiscation of his 
 property, to the prejudice of his heirs, or at least of his wife and 
 children, would be a tyrannical and odious act. The rights of 
 an unfortimate family smitten in its head are on that account 
 only the more sacred. A national treasure composed of such 
 spoils is like those impure exhalations which carry in their 
 bosom the germs of disease. 
 
 It wUl be suficient to give a simple enumeration of the most 
 common cases in which legislators have misapplied punishments, 
 by making them bear upon the innocent for the sate, of an oblique 
 effect upon the guilty. 
 
 1st. Confiscation. — A remnant of barbarity which stiU exists 
 throughout almost aU Europe. It is applied to many offences, 
 especially to crimes of state.* This punishment is the more 
 
 * Confiaoation, for offences of state, ought hardly to be looked upon as 
 a judicial punishment ; for in civil wars, generally speaking, as both 
 parties act in good faith, there can be no criminality. Confiscation is a 
 measure purely hostile. To leave their fortunes untouched, would be 
 
332 PRINCIPLES OP THE PEIfAL CODE. 
 
 odious, since it cannot be employed till the danger is past ; and 
 the more imprudent, since it prolongs animosities and a spirit ot 
 revenge, of wliicli the remembrance ought to be effaced as soon 
 as possible. 
 
 2nd. Corruption of Blood.- — A cruel fiction of the lawyers to 
 disguise the injustice of confiscation. The innocent grandson 
 cannot inherit from the innocent grandfather, because his rights 
 are corrupted and destroyed in passing through the blood of a 
 guilty father. This corruption of blood is a fantastic idea ; but 
 there is a corruption too real in the understandings and the hearts 
 of those who dishonour themselves by such sophisms. 
 
 3rd. Loss of Privileges, whereby an entire Corporation is punished 
 for the Misbehmiour of a part of its Members. — In England the 
 city of London is exempted, by a particular Act, from such an 
 infliction ; but what city, what corporation ought to be subject 
 to it, provided its privileges are not contrary to the interest of 
 the state ? 
 
 4th. Disastrous Lot of Bastards. — The incapacity to inherit is 
 not here referred to. The loss of that right is no more a legal 
 punishment in case of bastardy than in the case of younger sons ; 
 and endless contests might result, if heirs could be brought for- 
 ward, whose birth had not the attestation of publicity. But the 
 incapacity to fulfil certain trusts, the privation of many public 
 rights, to which they are subjected in several states of Europe, 
 is a true punishment, which falls upon innocent children for a 
 fault of imprudence committed by their parents. 
 
 5 th. Infamy attached to the Relatives of Persons icho have com- 
 mitted serious Offences. — This is not the place to consider what 
 appertains merely to public opinion. Opinion in this respect 
 has taken the character of antipathy only in consequence of mis- 
 takes of the law, which in many cases has branded the families of 
 criminals. This kind of injustice, little by little, is passing awaj\ 
 
 leaving munitions of war in the hands of the enemy. But a precaution 
 adapted to a state of war, to which recourse should be had only in 
 extreme cases, ' ought to cease, or be softened as much as possible, as 
 soon as the danger ceases to exist. 
 
riuxciriES op iite penal code. 333 
 
 CHAPTEE V. 
 
 Of requiring Security for good Belia/viour. 
 
 To require security for good behaviour, is to demand of a person, 
 who is suspected of designing to commit some unlawful act, that 
 he procure some other person,~who will consent to undergo a cer- 
 tain penalty, provided the apprehended offence is committed. 
 
 At first view, this appears contrary to the principles above laid 
 down, since it exposes the innocent to he punished for the guilty. 
 It ought, then, to be justified by an advantage more than equi- 
 valent to that evil. This advantage is the great probability of 
 preventing an offence, and of protecting the general security by 
 individual responsibility. 
 
 The great influence which it exercises over the conduct of the 
 suspected individual constitutes the chief merit of this procedure. 
 He reflects that generous friends have given him a decisive proof 
 of confidence or attachment in risking their fortunes and their 
 quiet to protect his liberty and his honour. They are hostages 
 who have voluntarily surrendered themselves on his account. 
 Shall he be vile enough to turn their Idndness against themselves ? 
 Shall he quench every sentiment of gratitude ? ShaU he publicly 
 declare himself a traitor to friendship, and condemn himself to 
 solitary remorse ? But suppose him imprudent, fickle, or vicious, 
 and not capable of restraining himself, stiU the security required 
 of him is not useless. Those who thus are responsible for him, 
 being interested in his actions, are guardians given him by the 
 law ; their vigilance will make up for his neglect, their eyes wiU. 
 closely watch his proceedings. Beside their personal interest in 
 making themselves be listened to, they have the strongest title to 
 be heard, from the service they have rendered, and from the right 
 which they ought always to have to withdraw their security, and 
 to leave the suspected to his fate. Such is the operation of this 
 means in preventing offences. 
 
 It serves in another way to diminish the alarm, because it fur- 
 nishas a favourable indication of the character or the resources of 
 
334 PEINCIPLES OF THE PENAL CODE. 
 
 the suspected individual. It is a kind of contract of assur£ 
 Tou demand, for example, the imprisonment of a man wiic 
 attempted to do you a certain injury. One of his friends prei 
 himself, and disputes the necessity of so rigorous a means, 
 ought to know him hetter than you do, and I assure you that 
 hare nothing to fear from him. This penalty, 'vsrhich I consej 
 pay in case I am mistaken, is a proof of my belief and 
 sincerity." 
 
 Such are the advantages of demanding security for good b 
 viour. It may produce an evil ; but that evil must be comp 
 with itg benefits, and especially with the vigorous measures w 
 it would be necessary to employ against suspected persons if 
 procedure were not resorted to. Whenever an evil resuli 
 him who becomes security, that evil, having been volunti 
 incurred, produces no danger and no alarm. If, througl 
 imprudent zeal, he has become security with his eyes shut 
 consequences concern him alone. None are alarmed lest the i 
 evil should befall them. But in the greater number of cases 
 engagement results from a feeling of security. He who beci 
 bound for another knows better than anybody else the chari 
 and situation of the person for whom he engages ; he is weU a 
 of the risk he runs, and he does not assume it except with 
 opinion that he can do so with safety. 
 
 Let us now consider in what cases it is proper to employ 
 means. 
 
 1st, It is useful for the prevention of offences apprehended 
 quarrels of hostility or honour, especially duels. In genera 
 class of delinquents cannot be suspected of a want of sensil 
 to public esteem ; it is honour which puts them in hostile a 
 But honour does not command vengeance more positively thi 
 forbids ingratitude, and especially that black ingratitude ^n 
 punishes the benefactor by means of his very benefit. 
 
 2nd. It is extremely well adapted to prevent abuses of c 
 dence, offences which violate the duties of a trust. 'N6bo< 
 compelled to undertake such and such employments ; it is fit 
 these employments should not be intrusted except to men 
 
^ PaiNCIPLES OF THE PENAI CODE. 335 
 
 have, in. riches or reputation, wterewith to furnish, a sufficient 
 guarantee for their good behaviour. At the same time, the secu- 
 rity which is exacted, being attached to the o£B.ce, cannot be 
 offensive to anybody. 
 
 3rd. This means may have a peculiar utUity in certain situations 
 of political affairs, in ease of enterprises against the state where 
 many deUuquents are concerned. Such men, often rather misled 
 than perverse, nourish exalted sentiments of affection and honour, 
 and in the midst of their revolt against society almost always 
 preserve intimate relations with each other. Vhen such a con- 
 spiracy is discovered, the conspirators most suspected should be 
 compelled to give security for their conduct. This means, at first 
 sight so feeble, is very efficacious — not only because the princi- 
 pals, seeing themselves watched, take the alarm ; but because the 
 sentiment of honour of which we have spoken furnishes a real or 
 plausible motive, a motive founded upon justice and gratitude, 
 for renouncing the enterprise. 
 
 4th, When sureties are required to prevent the escape of an 
 accused person, there is the advantage of restraint upon the par-' 
 tiality of the judge. Without this condition a corrupt magis- 
 trate, or one of too easy temper, under pretext of a provisional 
 enlargement, might withdraw an accused criminal from corporal 
 or even pecuniary punishment, and change a severe penalty into 
 simple banishment. This abuse becomes impossible when the 
 judge cannot set the accused at liberty except upon sufficient 
 security. 
 
 Only a single word is necessary as to the penalty to which the 
 /ureties should be subjected. That penalty should be pecuniary, 
 and never anything else. Any afflictive punishment would be 
 revolting, and would not furnish an indemnity. 
 
 It is true' that a pecuniary punishment may bring on the 
 imprisonment of the sureties, in case they are not able to pay 
 their bonds. But if they were insolvent when they became 
 sureties, they have deceived the court. If their insolvency is 
 posterior to their suretyship, on the occurrence of that event 
 they ought to have withdrawn their security by an application to 
 
336 PEINOTPLES OP IHE PENAl COBE. 
 
 the court. However, as in the case of other insolvencies, atte 
 tion must be paid to circumstances ; fraud must be distinguish 
 from misfortune. If the suretyship was the cause of insolvenc 
 in that case particular indulgence is needed. 
 
 CHAPTEE VI. 
 
 Tlie Choice of Punuhments. 
 
 Is order that a pimishment may adapt itself to the rules of pr 
 portion above laid down, it should have the following qualities : ■ 
 
 1st. It ought to le susceptible of more or less, or divisible, 
 order to conform itself to variations in the gravity of ojBfenci 
 Chronic punishments, such as imprisonment and banishmei 
 possess this quality in an eminent degree. They are divisil 
 into p'ortions of any requisite magnitude. It is the same wi 
 pecuniary punishments. 
 
 2nd. Equal to Itself. — It ought, to a certain extent, to be t 
 same for all individuals guilty of the same offence, being made 
 correspond to their different measures of sensibility. This c 
 mands attention to age, sex, condition, fortune, individual habi 
 and many other circumstances; otherwise the same nomii 
 punishment, being often found too severe for some persons, t 
 mild for others, wiU overshoot the mark, or wiU fail to reach 
 A fine fixed by law wiU never be a punishment equal to itself, 
 account of differences of fortune. Banishment has the sai 
 inconvenience ; too severe for one, to another it is nothing. 
 
 3rd. Comnieasurable. — If a man has two offences before ] 
 eyes, the law ought to give him a motive to abstain from t 
 greater. He wiU have that motive, if he can see that t 
 greater offence wiU draw upon him a greater punishment, 
 ought, then, to be in his power to compare these punishments, 
 measure their different degrees. 
 
 There are two methods of fulfilling this object. 1st. By addi 
 to a given punishment another quantity of punishment of 1 
 same kind ; for example, to five years' imprisonment for such 
 
PfllNCIPlES or THE PENAL CODE, 337 
 
 offence, two years' additional for such an aggravation. 2nd. By 
 adding a punistment of a different kind ; for example, to five 
 years' imprisonment for such an offence, public ignominy for such, 
 an aggravation. 
 
 4th. Analogous to the Offence. — The punishment will more 
 easily engrave itself on the memory, it wiU present itself more 
 strongly to the imagination, if it has a resemblance, an analogy 
 to the offence, a common character with it. The lex talionis is 
 admirable in this respect — An eye for an eye, a tooth for a tooth. 
 The most impertect understanding is capable of connecting these 
 ideas. But these sort of punishments are rarely practicable, and 
 in most cases would be too expensive. 
 
 There are other means of analogy. Search out, for example, 
 the motives of offences, and generally you will recognise the 
 dominant passion of the offender, and you may punish him, accord- 
 ing to the proverbial saying, with the instrument of his sin. 
 Offences of cupidity will best be punished by pecuniary fines, 
 when the wealth of the offender admits it ; offences of insolence, 
 by humiliation ; offences of idleness, by compulsory labour, or 
 forced rest. 
 
 5 th. Exemplary. — A real punishment which should not be ap- 
 parent would be lost upon the public. The great art consists in 
 augmenting the apparent punishment without augmenting the 
 real punishment. This may be accomjilished, either in the selec- 
 tion of the punishments themselves, or by accompanying their 
 execution with striking solemnities. 
 
 The auto-da-fe would be one of the most useful inventions of 
 jurisprudence, if instead of being an act of faith it were an act 
 of justice. "What is it but a public execution, a solemn tragedy 
 which the legislator presents to the assembled people ; a tragedy 
 truly important, truly pathetic by the sad reality of its catas- 
 trophe, and by the greatness of its object ! The preparatioirsj 
 the scenery, the ornaments, cannot be too studied, since upon 
 them the effect principally depends. The tribunal, the scaffold, 
 the dresses of the officers of justice, the habiliments of the 
 critiiinals, the religious service, the procession, all the accompani- 
 
338 PKINCIPIES OE THE PENAI CODE. 
 
 ments, ought to bear a grave and mournful character. "W 
 should not the executioners be covered with a mourning craj 
 The terror of the scene -would be increased by it, and at the sa 
 time these useful servants of the state would be concealed fr 
 the unjust hatred of the people. "Were it possible to keep up 
 illusion, all might pass in eflSgy. The reality of punishment 
 only necessary to maintain the appearance of it. 
 
 6th. Economical. — That is, punishments should have only tl 
 degree of severity absolutely necessary to answer their end. . 
 beyond is not only so much superfluous evil, but produces a m 
 titude of inconveniences, which intercept the ends of justice. 
 
 Pecuniary punishments are highly economical, since all ' 
 evil felt by Tiim who pays turns into an advantage for him y, 
 receives. i 
 
 7th. Remissible or RevoTcable. — It is necessary that the dam 
 inflicted should not be absolutely irreparable, since unfortuna< 
 cases .may occur in which the infliction may be subsequer 
 discovered to have been without lawful cause. As long as te 
 mony is susceptible of imperfection, as long as appearances i 
 be deceitful, as long as men have no certain criterion whereb] 
 distinguish truth from falsehood, one of the most important j 
 cautions which mutual security requires is, not to admit 
 pimishments absolutely irreparable, except upon the clearest « 
 dence of their necessity. Have we not seen all the appearai 
 of crime accumulated upon the head of a culprit whose innoce 
 was demonstrated, when nothing remained but to lament o 
 the mistake of an arrogant precipitation ? Weak and inconsisi 
 that we are ! "We judge like fallible creatures ; we punish a 
 we could not be deceived ! 
 
 To these important qualities of punishment three others i 
 be added, of less extensive utility, but to be aimed at when i 
 possible to procure them without detracting from the great ol) 
 of example. 
 
 1st. It is a great merit in a pimishment to contribute to 
 reformation of the offender, not only through fear of being punis 
 again, but by a change in his character and habits. This 
 
PBINCITLES OF T3EEE PENAL CODE. 339 
 
 may be attained by studying tbe motive wHch. produced the 
 offence, and by applying a punisbment wbich tends to -weaken 
 that motive. A bouse of correction, to fulfil this object, ought 
 to admit a separation of the delinquents, in order that different 
 means of treatment may be adapted to the diversity of their 
 moral condition. 
 
 2nd. Talcing away the power of doing Injury. — It is much easier 
 to obtain this end than tbe preceding. Mutilations and perpetual 
 imprisonment possess this quality. But the spirit of this maxim 
 leads to an excessive rigour. It is this 'which has rendered the 
 punishment of death so frequent. 
 
 If there are cases in ■which it is possible to deprive the offender 
 of the power of doing injury only by taking away his life, it is 
 upon very extraordinary occasions ; for example, in civil wars, 
 where the name of a leader, as long as he lives, is enough to 
 inflame the passions of a multitude. And, even in such cases, 
 death inflicted upon actions of a character so eqxuvocal ought 
 rather to be looked upon as an act of hostility than as a punish- 
 ment. 
 
 3rd. To fwrnish an indemnity to tlie injured party is another 
 useful quality in a punishment. It is a means of accomplishing 
 two objects at once, — ^punishing an offence, and repairing it : 
 removing the evil of the first order, and putting a stop to alarm. 
 This is a characteristic advantage of pecuniary punishments. 
 
 I conclude this chapter by a general observation of the highest 
 importance. The legislator, in the . choice of punishments, ought 
 carefully to avoid such as shook established prejudices. If there 
 has been formed in the minds of the people a decided aversion to 
 a given kind of punishment, though it has all the other requisite 
 qualities, it ought not to be admitted into the penal code, because 
 it would do more harm than good. In the first place, it is an 
 evil to inspire the public with a painful feeling by the establish- 
 ment of an unpopular pimishment. It is no longer the gmlty 
 alone who are punished. It is the most innocent and tender- 
 hearted persons upon whom is inflicted a punishment very real, 
 though it has no particular name, by wounding their sensibility, 
 
 z 2 
 
340 PEINClrUES OF THE PENAL CODE. 
 
 braving their opinion, and presenting td them the image of vio- 
 lence and of tyranny. What can he expected from conduct so 
 injudicious ? The legislator, by despising public sentiment, 
 imperceptibly turns it against himself. He loses the voluntary 
 assistance which individuals lend to the execution of the law 
 when they are content with it ; the people, instead of being his 
 assistants, are his enemies. Some endeavour to facilitate the 
 escape of the guilty ; others feel a scruple at denouncing them ; 
 witnesses hesitate to testify ; there is formed insensibly a fatal 
 prejudice, which attaches a kind of shame and of reproach to the 
 service of the law. This general discontent may go further ; il 
 sometimes bursts out into open resistance to the officers of justice, 
 or to the execution of sentences. A success against authority is 
 regarded by the people as a victory ; and the unpunished delin- 
 quent triumphs over the weakness of the laws. 
 
 What renders punishments unpopular is almost always theii 
 Oad selection. The more the penal code is conformed to th( 
 rules we have laid down, the more it wiU secure the enUghtenec 
 esteem of the wise, and an approbation of feeling on the part o: 
 the multitude. Such punishments wiU be thought just anc 
 moderate. Everybody wiU be struck with their propriety, theii 
 analogy to offences, and with that scale of gradation by whicl 
 aggravation of punishment is made to correspond to aggravatior 
 of offence, and mildness of punishment to smallness of offence 
 This kind of merit, founded upon domestic and familiar notions. 
 is level to the comprehension of every mind. Nothing is more 
 fit to give the idea of a paternal government, to inspire confidence, 
 to make public opinion act in concert with authority. Whei 
 the people are on the side of the laws, the chances of escape ar( 
 reduced to their lowest term. 
 
PEINCn'LES OF THE PENAl COBB. 341 
 
 CHAPTEE VII. 
 
 The Kinds of Funishments. 
 
 Thehe is no punishment which, taken separately, unites all the 
 requisite qualities. To attain that end, it is necessary to have 
 a choice among many punishments, to vary them, and to make 
 several of them enter into the same infliction. Medicine has no 
 panacea. Different means must be recurred to, according \o the 
 nature of disorders and the temperament of the patient. The 
 art of medicine consists in studying all remedies, in combining 
 them and in putting them into operation according to circum- 
 stances. 
 
 The catalogue of punishments is the same with that of offences. 
 The same evil done by authority of the law, or ia violation of the 
 law, win constitute a punishment, or an offence. The nature of 
 the evil is the same, but how different the effect ! The offence 
 spreads alarm ; the punishment re-establishes security. Offence 
 is the enemy of all ; punishment is the common protector. 
 Offence, for the advantage of a single person, produces a universal 
 evil ; punishment, by the sufferings of an individual, produces a 
 general good. Suspend punishment, the world becomes a scene 
 of robbery, and society is dissolved. Ee-establish it, and the 
 passions grow calm, order is restored, and the weakness of each 
 individual is sustained by the protection of the public force. 
 
 The whole matter of punishment may be distributed imder the 
 following heads : — 
 
 1st. Capital Punishments. — Such as put an immediate end to 
 the life of the offender. 
 
 2nd. Afflictive Punishments. — Such as consist in corporal suf- 
 ferings, but which produce only a temporary effect, as flagellation, 
 compulsory fasting, &c. 
 
 3rd. Indelihle Punishments. — Such as produce a permanent 
 effect upon the body, as branding and amputation. 
 
 4th. Iffnominious Punishments. — Their principal aim is to 
 expose the offender to the contempt of the spectators, and to make 
 
342 PEINCIPLES OF THE PENAL CODE. 
 
 him be looked upon as unworthy the society of his old Mends. 
 The amende honorable is an example. 
 
 5th. Penitential Pmdihments. — Destined to awaken the senti- 
 ment of shame, and to expose to a certain degree of censure. 
 They are bot severe or public enough to bring on infamy, nor t6 
 make the offender be looked upon as unworthy the society of his 
 former companions. It is, in fact, such chastisements as these 
 that a father has the power to inflict upon his children, and which 
 the most tender father would feel no scruple at inflicting upon 
 the child he most loved. 
 
 6th. CJuronie Punishments. — Their principal rigour consists in 
 their duration, so that they would be almost nothing if it were 
 not for that circumstance. Banishment and imprisonment are 
 examples. They may be perpetual or temporary. 
 
 7th. Punishments simply restrictive. — Those which, without 
 participating in any of the preceding characters, consist in some 
 restraint, some restriction, in being prevented fram doing what 
 one would desire ; for example, the prohibition to exercise a cer- 
 tain profession, the prohibition to frequent a certain place. 
 
 8th. Punishments simply compulsive. — Those which oblige a 
 man to do a thing from which he would wish to be exempted ; 
 for example, the obligation to present one's self "at certain times 
 before an officer of justice. This punishment consists not in the 
 thing itself, but in the inconvenience of the constraint. 
 
 9th. Pecuniary Punishments. — They consist in depriving the 
 delinquent of a sum of money, or of some article of actual pro- 
 perty. 
 
 10th. Punishments quasi pecuniary. — They consist in depriving 
 the offender of a kind of property in the services of individuals, 
 — ^pure and simple services, or services combined with some 
 pecuniary profit. 
 
 11th. Characteristic Punishments. -^'Smn^xcoBiAs, which, by 
 means of some analogy, present to the imagination a lively idea 
 of the offence. These punishments do not properly form a sepa- 
 rate class ; they are distributed among all the others, ignomiiiious, 
 penitential, afflictive, &o. A characteristic punishment is a 
 
PEINCIPIES OF THE PENAI CODE. 343 
 
 manner of inflicting one of tlte preceding punisliments with 
 some circumstance which has relation to the nature of the offence. 
 Suppose a counterfeiter, instead of being punished with death, 
 were condemned to some other punishments, and, among other 
 things, to be branded indelibly. If the word counterfeiter were 
 branded on his forehead, and upon each cheek the impress of a 
 piece of current money, this punishment, recalling the offence by 
 a sensible image, would be eminently characteristic. 
 
 In a house of correction, the delinquents, according to the 
 diversity of their offences, should be obliged to wear emblematical 
 dresses, or other exterior marks of some striking analogy. Thus 
 the notion of their offence would become inseparable from them ; 
 their mere presence would be like a new proclamation of the law ; 
 and the hope of escaping this shame, by resuming a common 
 dress, would be a powerful attraction to engage them to good 
 conduct. 
 
 CHAPTEE VIII. 
 
 Et quoniam va/riani morbi, va/ridbinms a/rtes ; 
 Mille maU species, mille sakiMs enmt. 
 
 And as diseases vaiy, aids must vary ; 
 A thousand kinds of ill, a thousand cures. 
 
 Justification of Variety in Punishments. 
 
 "W"e have already seen that the choice of punishments is the result 
 of a multitude of considerations, that they ought to be susceptible 
 of more or less, equal to themselves, commeasurable, analogous 
 to the offence, exemplary, economical, reformative, popular, &c. 
 
 "We have seen that a single punishment never CEin have all these 
 qualities, that it is necessary to combine them^ to vary them, to 
 assort them, in order to find the composition which we need. 
 
 If a code founded upon these principles were only a project, it 
 might be regarded as a fine speculation impossible to be realized. 
 Cold and indifferent men who are always armed with a despairing 
 incredulity wherever the happiness of mankind is concerned. 
 
344 PEINCIPLES OF THE PENAL CODE. 
 
 would not want that common reproacli of impracticability, so con- 
 venient to idleness and so flattering to self-love. But the work is 
 done, the plan is executed ; a penal code has been constructed 
 upon these principles, and that code, in which all these rules are 
 scrupulously adhered to, has no quality more remarkable than its 
 clearness, its simplicity, its precision.* All penal legislation 
 hitherto known, without having accomplished a moiety of the 
 object, is infinitely more complicated, more vague, more difficult 
 to comprehend. 
 
 It has been necessary to seek out a great variety of punish- 
 ments, to adapt them to each ofience, and to invent new means of 
 rendering them exemplary and characteristic. But the same 
 persons who will agree to the general proposition that these two 
 qualities are essential will perhaps be constantly revolting against 
 their application. Punishments naturally excite antipathy, and 
 even horror, when considered separately from offences. Besides, 
 opinions upon a matter submitted to sentiment and imagination 
 are so floating and capricious, that the same punishment which 
 would excite the indignation of one as too severe, would be 
 blamed by another as too mild and quite inefficacious. 
 
 I wish here only to anticipate, an objection. A penal system 
 ought not to be thought cruel because it includes a great variety 
 of punishments. The multiplicity and the variety of punishments 
 prove the industry and the cares of the legislator. To have but 
 one or two kinds of punishment is an effect of ignorance of prin- 
 ciples, and of a barbarous contempt ^f proportion. I might 
 mention states in which despotism is all-powerful and civilization 
 but little advanced, where it may be said that but one kind of 
 punishment is known. The more we study the nature of offences 
 and of motives, the more we examine the diversity of characters 
 and circumstances, the more we shall feel the necessity of employ- 
 ing different means to counteract them. 
 
 * This refers to the penal division of that Universal Code, to the con- 
 struction of which Bentham devoted the greater part of his life. It has 
 not been published, and, indeed, was never finished to the satisfaction of 
 the author. — Translator. 
 
PEINCIPLES OF THE PENAL CODE. 345 
 
 Offences, those iaterior enemies of society, which, carry on 
 against it an obstinate and varied war, display all the instincts of 
 mischievous animals : some employ violence ; others have recourse 
 to stratagem — they know how to assume an infinity of shapes and 
 everywhere keep up a secret correspondence. If they have been 
 combated without being conquered, if the revolt continues to 
 subsist, it must be principally ascribed to the defect of legal 
 tactics and of the instruments hitherto employed to suppress 
 them. Certainly, there needs as much talent, calculation, and 
 prudence to defend society as to attack it, and to prevent offences 
 as to commit them. 
 
 To determine whether a penal code is rigorous, observe how it 
 punishes the most common offences, those against property. The 
 laws everywhere have been too severe upon this point, because, 
 punishments being ill-chosen and misapplied,' it has been attempted 
 to compensate by rigour what was wanting in justice. It is 
 necessary to be less prodigal of punishment as respects offences 
 which attack property, in order to deal it with more severity upon 
 offences which attack the person. The first are susceptible of 
 indemnity ; the others do not admit it, at least not in kind. The 
 evil of offences against property may be reduced to a trifle by 
 means of insurances ; while aU the treasure of Potosi cannot 
 recall to life one murdered person, or calm the terrors spread by 
 such a crime. Buji the question is not whether a penal code be 
 more or less severe ; that is a wrong view of the subject. The 
 only question is, whether the severity of the code be necessary or 
 not. 
 
 It is cruel to expose even the guilty to useless sufferings ; and 
 such is the consequence of punishments too severe. But is it not 
 more cruel still to leave the innocent to suffer ? Such is the 
 result of punishments too mild to be efiicient. 
 
 We may conclude that variety in punishments is one of the 
 perfections df a penal code, and that the more repugnant to a 
 sensitive heart is the search for these means, the more necessary 
 is it that the legislator should be so penetrated with humanity as 
 to gain this victory over himself, Was Sangrado, whose only 
 
346 MaNciPiEs OF the penal code. 
 
 physic consisted in bleeding, more humane than Boerhaave, wl 
 consulted all nature to discover new remedies ?* 
 
 * The ideas suggested in this chapter are expanded at muoh great 
 length, and sustained by additional arguments, in the Theory of Fimis, 
 menis, which is one of the works of Bentham, compiled and published 1 
 Dnmont. Notwithstanding all the reasonings of Bentham upon the sul 
 jeot of diversity of punishment, I am constrained, by his own principle 
 to adopt the opinion that imprisomment, variously modified, is the on] 
 punishment which the legislator need employ, — with the exception ( 
 those saUsfacUoTis, pecuniary and honorary, which ought to form a pa; 
 of every code, and! which in a certain sense may be regarded as punisl 
 ments. 
 
 Imprisonment combines all the qualities enumerated by Bentham t 
 desirable in a punishment. 1. It is peculiarly stisceptible of jjiore or les 
 
 2. It may easily be made equal to itself — that is, uniform in its severity i 
 respects the punishment of different offenders guilty of the same offeno 
 
 3. It is commeaswrable in a high degree. 4. It is exemplcury, inasmuch i 
 a gaol is a constant warning to offenders. 5. It is economical, or ms 
 easily be made so by proper arrangements, and that too in more sensf 
 than one ; for while it is considered as a punishment both by the offendf 
 and the public, instead of inflicting any injury on the offender, in man 
 cases it may be made to confer upon him a high degree of benefit, both phi 
 sical and moral ; and as respects the pecuniary expense to the public, ever 
 gaol, mere houses of detention excepted, might be made, and ought to b 
 made, to support itself. 6. It is remissible, and quite as revocable a 
 any other punishment. 7. It also may be regarded as amalogous to th 
 offence, since every offence consists in an abuse of liberty and power, an 
 is properly punished by a restraint of liberty and power. 
 
 It also possesses in a high degree two of the other qualities esteeme 
 by Bentham as important, though less so than those above mentionec 
 1. It has a tendency to reform the offender, by removing him from th 
 temptations of liberty, and giving virtuous motives an opportunity t 
 regain an ascendancy. 2. It takes away, so long as it lasts, which ma 
 be for a long time, the power of doing vnjwry. 
 
 It is a point of the highest importance that severity of punishmei 
 should be proportioned to magnitude of offences, and that according t 
 a scale simple, and easily to be understood. Variety of kinds in punisl 
 ment seems to be inconsistent with this essential object, for by wha 
 common measure shall we calculate them p — how many lashes are equ 
 valent to how many days of imprisonment ? This is a matter of fane 
 upon which no two men will agree. 
 
PEISrCIPLES OE THE PENAI CODE. 347 
 
 CHAPTER IX. . 
 
 Examination of some Common Punishments. 
 
 Ai'PLiCTiTE Pttnishmekts. — These are not good for all offences, 
 teeanse they cannot exist in a slight degree, or at least only in 
 case of persons in a state of the lowest degradation. Every cor- 
 poral punishment puhlicly inflicted is infamous. Inflicted in 
 private, it is less infamousi ^^^ it is not exemplary. 
 
 The most common afflictive punishment is whipping. In its 
 ordinary application, this punishment has the inconvenience of 
 not being equal to itself; it varies from the slightest pain to the 
 most atrocious torture, and may even result in death. Everything 
 depends upon the kind of lash, the force of the application, and 
 the temperament of the individual. The legislator who orders 
 this punishment knows not what he does ; the judge is nearly as 
 ignorant; its execution will always be in the highest degree 
 arbitrary aind uncertain. In England, whipping is usual for such 
 thefts as juries, by a humane perjury, declare to be below the 
 value of a shilling. This punishment is a revenue to the execu- 
 tioner. If the delinquent suffers, it is only because he has no 
 money wherewith to purchase the impunity of a mock infliction. 
 
 Indelible Pcwishments. — ^Indelible afflictive punishments, 
 taken separately, are not capable of graduation. The mildest 
 of them has a. very high degree of severity. Some, such as 
 branding, only disfigure the person ; others take away the use of 
 some limb ; others consist in mutilations, as the loss of the nose. 
 
 Imprisonment, moreover, has the decided advantage of not inflaming 
 the vindictive feelings or giving the sanction of the law to revolting 
 cruelties. Who can doubt that barbarous punishments tend to barbarize 
 the people which inflicts them ? 
 
 I might suggest many other considerations in favour of adopting 
 imprisonment as the only kind of punishment, did the limits of a note 
 permit it. It must be confessed, however, that imprisonment has been 
 fitted to serve for that purpose only by reason of those vast improve- 
 ments lately introduced into prison discipline, of which Bentham, next 
 to Howmrd,, deserves the credit. See the treatise entitled FcmopUque, 
 compiled by Dumont fr6m the writings of Bentham. — Trcmslator, 
 
348 PEIJUCIPLES OF THE PENAL CODE. 
 
 the ears, the feet, or the hands. Mutilation of the organs which 
 are necessary for lahour ought not to be inflicted upon common 
 offences, such as those which spring from want, as theft, smug- 
 gling, &c. "What can the offenders do after being maimed? 
 If the state maintains them the punishment becomes too expen- 
 sive ; if they are left to themselves, it is the same as condemning 
 them to despair and death. Penal mutilations have two incon- 
 veniences; they are irremissible, and they are apt to be con- 
 founded with natural accidents. There is no apparent difference 
 between him who has had an arm cut off for a crime, and him 
 who has lost an arm in the service of his country. An artificial 
 and evident brand ought always to be added, to be the certificate 
 of offence and the safeguard of misfortune. These punishments 
 might be suppressed altogether ; and if used at all, it should only 
 be for some very rare offences, where they have the recommenda- 
 tion of analogy. 
 
 Indelible brands are a powerful means of which a bad use has 
 been made. Among offenders convicted of theft, or of furtive 
 concealment, many have only yielded to a transient temptation, 
 and might return to virtue if the nature of the punishment had 
 not corrupted them. In such cases there shciuld be no indelible 
 brand, no infamous punishment. That would be to take away 
 the hope of re-establishing their reputation, and redeeming a 
 moment of error. If an indelible brand is stamped upon coun- 
 terfeiters, for example, it is a sign which excites distrust of their 
 honesty, but which does not deprive them of the means of live- 
 lihood. Despised as rogues, they will stiU be employed as 
 ingenious workmen. But if a man is branded for a first theft, 
 what will become of him? "Who will employ him? "What 
 would it avail him to be honest? He is compelled to be a 
 knave. 
 
 An indelible brand is only useful to mark a dangerous offender, 
 who will cease to be dangerous provided he is known, or to 
 secure the execution of another punishment. "When the offence 
 is infamous, branding ought to accompany perpetual imprison- 
 ment, to prevent the flight of the prisoner. It binds him like a 
 
PEINCIPLES OP THE PENAL CODE. 349 , 
 
 chain, for it makes the prison his asylum, and he would he ■worse 
 off out of it than in it. To make these marks permanent and 
 distinguishable, they should he imprinted by coloured powders 
 pricked into the skin, and not with a hot iron. 
 
 loNOMiNiotrs Punishments. — Infamy is one of the most salu- 
 tary ingredients in penal pharmacy : hut ideas upon this subject are 
 very confdsed, and the means employed very imperfect. Accord- 
 ing to the notion of the lawyers, it would seem that infamy was 
 a homogeneous thing, indivisible, an absolute and invariable 
 quantity. If it were So, the employment of this punishment 
 would be almost always impolitic and unjust ; for it is equally 
 applied to very unequal offences, and to some offences which ought 
 not to be visited with it at aU. Infamy, well managed, is very 
 susceptible of graduation. It is, in a moral view, what defile^ 
 ment is in a physical. It is one thing to have a spot on one's 
 clothes, and quite another to be covered with mud. 
 
 Loss of honour is another phrase in common use^ but not less 
 deceptive. It includes two false suppositions : one, that honour 
 is a good of which aU men possess a certain share ; the other, that 
 it is entirely in the power of the law, and can be taken away at 
 pleasure. The term dishonour, which differs from infamy in not 
 excluding the idea of more or less, would be more appropriate. 
 
 Infamy, as it is conlmonly employed, bears rather upon the 
 criminal than the crime. If it bore upon the offence, its effect 
 would be more certain, more durable, and more efficacious. It 
 might then be proportioned to the nature of the case. But in 
 order to attain that end it is necessary that a particular kind of 
 dishonour should be found for every kind of offence. 
 
 AU this cannot be effected, except by a new apparatus of jus- 
 tice ; inscriptions, emblems, dresses, pictural representations ; 
 signs which speak to the eyes, which strike the imagination 
 through the senses, which form associations not to be effaced. 
 It is thus that pubUo indignation, which is but too apt to be 
 directed against the laws and the judges, may be concentrated 
 upon the offender and the offence. The legislator should not 
 disdain to borrow from the theatre imposing shows and repre- 
 
350 PEINCIPLES <5P THE PEllfAL CODE. 
 
 sentations. To surround the criminal with symbols of his offence 
 "would not be, as some may incline to represent it, a vain display 
 of power, a ridiculous parody : it would be an instructive exhi- 
 bition which would announce the moral objects of punishment, 
 and would render justice more respectable by showing it, even 
 in the sad function of punishment, aiming rather to impress a 
 great lesson than to satisfy a spirit of vengeance. 
 
 The pillory, used in England, is of all punishments the most 
 unequal and unmanageable. The delinquent is abandoned to the 
 caprice of individuals, and this singular infliction is sometimes a 
 triumph, and sometimes it is death. An author was condemned 
 to it, some years since, for what is called a libel. The platform 
 upon which he was placed became a kind of lyceum ; and the 
 whole time passed away in compliments between him and the 
 spectators. In 1760, a bookseller was put in the pillory for hav- 
 ing sold some impious or seditious work. A subscription was 
 opened for him, while he was stUl standing in it, and soon 
 amoimted to upwards of a hundred guineas. "What an affront 
 to the law ! Lately, a man condemned to the same punishment 
 for a lascivious offence, was murdered by the populace under the 
 eyes of the police, who did not even attempt to defend him. 
 Mr. Burke had the spirit to denounce this abuse in the House of 
 Commons. "The man who undergoes a punishment," he said, 
 " is stiU under the protection of the law, and ought not to be 
 abandoned as a prey to ferocity." The orator was applauded, 
 but the abuse remains ; yet a simple iron grating to inclose the 
 criminal would prevent all such acts of barbarity. 
 
 Cheostic Punishments. — Chronic punishments, such as ban- 
 ishment and imprisonment, are adapted to many offences ; but 
 they demand a particular attention to the circumstances which 
 affect individual sensibility. Banishment would be an infliction 
 in the highest degree unequal if it were decreed without excep- 
 tion. Its severity depends upon the condition and the fortune of 
 those who undergo it. Some have no reason to be attached to 
 their country ; Qthers would be overwhelmed with despair at the 
 idea of leaving their property and their home, Some have fami- 
 
PEINCIPLES OF THE PENAI CODE. 351 
 
 lies, others have no such ties. One -vfould be deprived of every 
 resource if compelled to leave his country, to another hanishment 
 would be a lucky escape from his creditors. Age and sex make 
 a great difference. Much latitude must be allowed to the judge, 
 who' can be directed only by general instructions. 
 
 The English, before the independence of America, were in the 
 habit of traasporting to the colonies a numerous class of offenders. 
 For some this transportation was slavery, for others a party of 
 pleasure. A rogue, who had a mind to travel, was a fool if he 
 did not commit some offence to insure himself an outfit and a 
 free passage. The more industrious of the convicts gained pro- 
 perty and a home in. the colonies. Those who knew nothing, 
 except how to steal, nott being able to exercise their art with 
 any success in a country of which they did. not know even the 
 geography, soon ended their career on the gallows. Once con- 
 demned and transported, their lot was unknown. Though they 
 died of disease or famine, nobody cared. Thus the whole effect 
 of example was lost, and the principal end of punishment was 
 whoUy neglected. The transportation to Botany Bay, which is 
 now in use, answers its end no better. It has all the faults 
 which a punishmenit can have, and none of the qualities which 
 it ought to have. 
 
 If an establishment in a distant country were offered to the 
 citizens, on condition of attaining it by a violation of the laws, 
 what absurdity ! what madness ! But transportation must pre- 
 sent itself to many wretches as an advantageous offer, of which 
 they can take advantage only by committing an offence. Thus 
 the law, instead of counterbalancing the temptation, adds, in 
 many cases, to its force. 
 
 As to imprisonment, it is impossible to give any opinion with 
 respect to that punishment, until all that concerns the structure 
 and the internal government of prisons has been determined with 
 the greatest exactitude. Prisons, with the exception of a smaU, 
 number, include every imaginable means of infecting bothbody 
 and mind. Consider merely the state of forced idleness to which 
 the prisoners are reduced, and j;his punishment is excessively 
 
352 PRINCIPLES OF THE PENAL CODE. 
 
 expensive. "Want of exercise enervates and enfeebles their facul- 
 ties, and deprives their organs of suppleness and elasticity ; de- 
 spoiled, at the same time, of their characters and of their habits 
 of labour, they are no sooner out of prison than starvation drives 
 them to commit offences. Subject to the subaltern despotism of 
 men who for the most part are depraved by the constant spec- 
 tacle of crime and the habit of tyranny, these -wretches may be 
 delivered up to a thousand unknown sufferings, which aggravate 
 them against society, and ' which harden them to the sense of 
 punishment. In a moral point of view, an ordinary prison is a 
 school in which wickedness is taught by surer means than can 
 ever be employed for the inculcation of virtue. "Weariness, 
 revenge, and want preside over these academies of crime. AH 
 the inmates raise themselves to the level of the worst ; the most 
 ferocious inspires the others with his ferocity ; the most cunning 
 teaches his cunning to all the rest ; the most debauched inculcates 
 his licentiousness. All possible defilements of the heart and the 
 imagination become the solace of their despair. United by a 
 common interest, they assist each other in throwing off the yoke 
 of shame. "Upon the ruins of social honour is built a new 
 honour, composed of falsehood, fearlessness under disgrace, for- 
 getfulness of the future, and hostility to mankind ; and thus it is 
 that unfortunates, who might have been restored to virtue and 
 to happiness, reach the heroic point of wickedness, the sublimity 
 of crime. 
 
 A convict, after having finished his term of imprisonment, 
 ought not to be restored to society without precautions and with- 
 out trial. Suddenly to transfer him from a state of siirveiUance 
 and captivity to unlimited freedom, to abandon him to all the 
 temptations of isolation and want, and to desires pricked on by 
 long privation, is a piece of carelessness and inhumanity which 
 ought at length to attract the attention of legislators. At London, 
 when the hulks in the Thames are emptied, the malefactors at 
 that jubilee of crime rush into the city like wolves, who after a 
 long fast have succeeded in entering a sheep-fold; and until all 
 these plunderers have been apprehended for new offences, there 
 
PEINCIPLES OF THE PENAL CODE. 353 
 
 is no security upon the highways, no safety in the streets of the 
 metropolis. 
 
 , PEctrafiASY PuirisHMENTS. — These inflictions have the triple 
 advantage of being susceptible of graduation, of fulfilling the end 
 of punishment, and of serving as an indemnity to the injured 
 party. But it must be recollected that a pecuniary punishment, 
 if the sum is fixed, is in the highest degree unequal. This con- 
 sideration, so. obviously true, has been neglected by all legislators. 
 Pines have been determined without any regard to the profit of 
 the offence ; to its evil, or to the wealth of the offender. Every- 
 body recollects the story of that insolent young Eoman, who 
 amused himself by lashing all the passers-by, while a slave of his 
 at the same time offered them a coin, fixed by the laws of the 
 Twelve Tables, as the fine for that offence. 
 
 Pecuniary punishments should always be regulated by the' for- 
 tune of the offender. The relative amount of the fine should be 
 fixed, not its absolute amount ; for such an offence, such a part 
 of the offender's fortune ; with such modifications, however, as 
 would meet the difficulties liable to attend a literal execution of 
 this rule. 
 
 Punishments smpiy Eesteioiive.— There is nothing in penal 
 legislation more ingenious than lanishment from the presence of 
 the iiyn/red party. This punishment is suggested by the old 
 Prench law, and some traces of it may be found in the Danish 
 code. "With some improvements, it would offer an excellent 
 remedy for offences growing out of individual hostilities, from 
 which the public in general has nothing to fear. This punish- 
 ment affords a triumph to the oppressed over the oppressor, 
 and re-establishes, in the mildest manner, the preponderance of 
 injured innocence over insolent force. Besides, it prevents the 
 renewal of quarrels, and takes away from the aggressor the power 
 of doing harm. But to put in operation a means so closely con- 
 nected with honour, requires a scrupulous attention to the con- 
 dition of individuals. 
 
 Capital Punishments. — The more attention one gives to the 
 punishment of death, the more he will be inclined to adopt the 
 
 A A 
 
354 
 
 PBINCIP-LES OP THE PElfAL CODE. 
 
 opinion of Beccaria, — that it ought to be disused. This subject 
 is so ably discussed in his book, that to treat it after him is a 
 work that may -well be dispensed with. Those who wish to see, 
 at a single glance, all that can be said for and against it, have 
 only to turn back to the chapter containing the table of q[ualities 
 desirable in a punishment. 
 
 "Whence originated the prodigal fury with which the punish- 
 ment of death has been inflicted ? It is the ejGfeot of resentment 
 which at first inclines to the greatest rigour ; aiid of an imbecility 
 of soul, which finds in the rapid destruction of convicts the great 
 advantage of having no further- occasion to concern one's self 
 about them. 
 
 Death! always death! It requires neither the medita- 
 tions of genius nor resistance to the passions. It is only to 
 yield one's self to them, and we are carried at once to that 
 fatal term. 
 
 Is it said that death is necessary to take from an assassin the 
 power of reiterating his offence ? For the same reason, then, we 
 ought to destroy the frantic and the mad, from whom society has 
 everything to fear. If we can guard against these, why not 
 against assassins ? Is it said that death is the only punishment 
 which can outweigh certain temptations to commit homicide ? 
 These temptations can only arise from hostility or cupidity ; and 
 do not these passions, from their very nature, dread humiliation, 
 want, and captivity more than death ? 
 
 I should astonish the reader were I to expose to him the penal 
 code of a nation celebrated for its humanity and its enlighten- 
 ment. "We should expect to find in it the most exact proportion 
 between offences and punishments ; but, in fact, that proportion 
 is continually outraged or forgotten, and the punishment of death 
 is lavished upon the most trifling offences. The mildness of the 
 national character is in contradiction to the laws, and, as might 
 be expected, it is that which triumphs ; the laws are eluded ; 
 pardons are multiplied; offences are overlooked; testimony is 
 excluded ; and juries, to avoid an excess of severity, often fall 
 into excess of indulgence. Thence results a system of penal law, 
 
PEINCIPLES OF IHE PENAL CODE. 355 
 
 incolierent, contradictory, tmiting violence to ■weakness, dependent 
 on tte humour of a judge, varying from circuit to circuit, some- 
 times sanguinary, sometimes null. 
 
 English, la-w-makers have not yet adopted imprisonment joined 
 to labour — a sort of punishment good in so many respects. In- 
 stead of compulsive occupation, they reduce their prisoners to 
 complete idleness. Is this by design ? ITo ; it is doubtless by 
 habit. Things have been found upon that footing ; it has been 
 disapproved, but has not been changed. There needs pecuniary 
 advances, vigilance, and sustained attention, to combine imprison- 
 ment with labour ; none of these are needed to shut up a man, 
 and leave him to himself. 
 
 CHAPTER X. 
 
 Of the pardoning Power. 
 
 "What punishment lacks in certainty must be made up in severity. 
 The less certain a punishment is, the severer it must be ; the more 
 certain it is, the less it need be severe. 
 
 What shall be said of a power created for the very purpose of 
 making punishment uncertain ? Such, however, is the direct 
 consequence of a power to pardon. 
 
 In the species, as in the individual, the age of passion precedes- 
 that of reason. Anger and vengeance have dictated the earliest 
 penal laws. "When these barbarous enactments, founded upon 
 caprices and antipathies, begin to shock an enlightened public, 
 the power of pardoning offers a safeguard against the sanguinary 
 rigour of the laws, and becomes, so to speak, a comparative good j 
 and nobody inquires whether this pretended remedy is not, in 
 fact, a new evil. 
 
 How many eulogiums have been bestowed upon clemency ! It 
 has been repeated a thousand times that it is the first virtue of a 
 sovereign. Doubtless, if the crime be only an attack upon the 
 sovereign's self-love ; if the question be of a satire upon him or 
 
 A. A 2 
 
S56 PRINCIPLES OP THD PENAL CODE. 
 
 his favourites ; the moderation of a prince is meritorious, the 
 pardon which he grants is a triumph over himself. But when 
 the question is of an offence against society, a pardon is not an 
 act of clemency ; it is a mere piece of partiality. 
 
 In cases where punishment would do more evil than good, as 
 after seditions, conspiracies, and public disorders, the power of 
 pardoning is not only useful, it is necessary. These cases being 
 foreseen and pointed out in a good legislative system, pardon 
 applied to them is not a violation, it is an execution of the law. 
 But pardons without motive, effects of the favour or the facility 
 , of a prince, impeach either the laws or the government : the laws, 
 of cruelty to individuals ; or the government, of cruelty to the 
 public. Eeason, justice, and humanity must be wanting some- 
 where ; for reason is never in contradiction with itself; justice 
 cannot destroy with one hand what it has done with the other ; 
 humanity cannot require that pimishment should be established 
 for the protection of innocence, and that pardons should be 
 granted for the encouragement of crime. 
 
 The power of pardoning, it has been said, is the noblest pre- 
 rogative of sovereignty. But may not that prerogative sometimes 
 turn to the disadvantage of him by whom it is exercised ? If, 
 instead of gaining for the prince a more constant affection on the 
 part of his subjects, it exposes him to caprices of judgment, to 
 clamours, and to libels ; if he can neither yield to solicitations 
 without being suspected of feebleness, nor show himself inexorable 
 .without being accused of severity, where then is the splendour of 
 this dangerous right ? It would seem that a just and humane 
 .prince must often dread the exposure to this combat between 
 public and private virtues. 
 
 Homicide ought, at least, to make an exception. He who has 
 the right to pardon that offence is master of the life of every 
 citizen.* 
 
 * To prevent the abuse of this power, it would suiEoe to require that 
 its exercise should be aecompanied by an exposition of motives. Where 
 capital punishments are in use, it would be better to preserve the power 
 -of pardoning, even without restrictions, than to abolish it entirely. 
 
PBIirCIPLES OP TKE PENAt CODE. 357 
 
 To sum up. If the laws are too severe, the power of pardoning;^- 
 is a necessary corrective ; but that corrective is itself an evil. 
 Make good laws, and there will be no need of a magic wand 
 which has the power to annul them. If the punishment is neces- 
 sary, it ought not to be remitted;, if it is not. necessary, the con- 
 vict should i;ot be sentenced to undergo it. 
 
PART FOURTH. 
 INDIRECT MEANS OF PREVENTING OFFENCES. 
 
 INTRODUCTION. 
 
 In all the sciences there are branches which have been cultivated 
 more tardUy than others, because they demand a longer series of 
 observations and meditations more profound. It is thus that 
 mathematics have their transcendental or higher branch — that is, 
 a new science, as it were, above ordiaary science. 
 
 The same distinction, to a certain extent, may be applied to the 
 art of legislation. "What means shall be adopted to prevent inju- 
 rious actions ? The first answer, which presents itself to every- 
 body, is this: "Forbid those actions; punish them." This 
 method of combatting ofiences being the most simple and the first 
 adopted, every other method of arriving at the same end is, so to 
 speak, a refinement of the art, and its transcendental branch. 
 
 That branch consists in devising a course of legislative acts 
 adapted to prevent offences — in acting principally upon the incli- 
 nations of men, in order to turn them from evU and to impress 
 Upon them the direction most useful to themselves and to others. 
 
 The first method — ^that of combatting offences by punishments 
 — constitutes direct legislation. 
 
 The second method — that of combatting offences by preventive 
 means — constitutes a branch of legislation which may be called 
 
 The sovereign acts directly against offences when he prohibits 
 
peincipi.es op the penai code. 359 
 
 them individually under special penalties. He acts indirecUy 
 ■vrten he takes precautions to prevent them. 
 
 By direct legislation the eviL is attacked in front. Indirect 
 legislation attacks it obliquely. In the first case, the legislator 
 declares open war against the enemy, points him out, pursues 
 him, meets him foot to foot, and carries his defences sword in 
 hand. In the second case, he does not announce his whole 
 design ; he works underground, he procures inteUigenoe, he seeks 
 to prevent hostile enterprises, and to keep still, in his alliance, 
 those who may have formed secret intentions against him. 
 
 Speculative writers upon politics have had glimpses of this art ; 
 but in speaking of this second branch of legislation they do not , 
 evince any clear idea of it. The first branch has been a long 
 time reduced to system, the good part of it as well as the bad. 
 The second branch has never been thoroughly examined ; nobody 
 has undertaken to treat it with method, to arrange it, to classify 
 it — in one word, to master it in its whole extent. It is .yet a new 
 subject. 
 
 "Writers who have composed political romances tolerate direct 
 legislation as a necessary evil ; it is a choice of evils to which 
 they submit, but as to which they never express a very lively 
 interest. But when they come to speak about the means of pre- 
 venting offences, of rendering men better, of perfecting liiorals, 
 their imagination grows warm, their hopes are excited ; one 
 would suppose they were about to produce the great secret, and 
 that the human race was going to receive a new form. It is 
 because we have a more magnificent idea of objects in proportion 
 as they are less farniliar, and because the imagination has a loftier 
 flight amid vague projects which have never been subjected to 
 the limits of analysis. Major e longinquo reverentia—the greater 
 distance, the greater reverence — this is a saying as applicable to 
 ideas as to persons. A detailed examination will reduce aU these 
 indefinite hopes to the just dimensions of the possible ; and if in 
 the process we lose fictitious treasures, we shall be well indemr 
 nj£ed by the certainty of what remains. 
 
 To distinguish exactly what appertains to these two branches, 
 
360 PRINCIPLES OP THE PENAL CODE. 
 
 it is necessary to begin by forming a just idea of .direct legislation. 
 It proceeds, or ought to proceed, in this iivay : — 
 
 1st. The choice of acts to be erected into offences. 
 
 2nd. The description of each offence, as murder, theft, pecu- 
 lation, &c. 
 
 3rd. An exposition of the reasons for attributing to these acts 
 the quality of offences — treasons which ought to be deduced from 
 the single principle of utility, and consequently to be consistent 
 ■with themselves. 
 
 4th. The assigning of a competent punishment for each offence. 
 
 5th. An exposition of the reasons which justify these punish- 
 ments. 
 
 The penal system, though it be made as perfect as possible, is 
 defective in several respects : — 1st. The evil must exist before the 
 remedy can be applied. The remedy consists in the application 
 of punishment, and punishment cannot be applied till offence is 
 committed. Every new instance of punishment inflicted is an 
 additional proof that punishment lacks efficacy and leaves behind 
 it a certain degree of danger and alarm. 2nd. Punishment itself 
 is an evil, though necessary to prevent greater evils. Penal jus- 
 tice, in the whole course of its operation, can only be a series of 
 evUs— evils arising from the threats and constraint of the law, 
 evUs arising from the prosecution of the accused before it is pos- 
 sible to distinguish innocence from guilt, evUs growing out of the 
 infliction of judicial sentences, evils from the unavoidable conse- 
 quences which result to the innocent. 3rd. The penal system is 
 not able to reach many injurious actions, which escape justice 
 either by their frequency, the facility of concealing them, by the 
 difficulty of defining them, or finally by some vicious turn of 
 public opinion by which they are favoured. Penal law can ope- 
 rate only within certain limits, and its power extends only to 
 palpable acts, susceptible of manifest proof. 
 
 This imperfection of the penal system has caused new expe- 
 dients to be sought for to supply its deficiencies. These expe- 
 dients have for their object the prevention of offences, either by 
 preventing the acquisition of the knowledge necessary to their 
 
PRINCIPLES OF THE PENAL CODE. 36.1 
 
 commission or by faking away the power or tte will to commit 
 ihem. The most numerous class of these means relates to the 
 art of directing the inclinations by weakening the seductive 
 motives which excite to evil, and by strengthening the tutelary 
 motives which impel to good. 
 
 Indirect means, then, are those which, without having the 
 character of punishments, act upon man physically or morally, to 
 dispose him to obey the laws, to shield him from temptations, to 
 govern him by his inclinations and his knowledge. 
 
 These indirect means not only have a great advantage on the 
 side of mildness, but they succeed in a multitude of cases in 
 which direct means will not answer. AU modern historians have 
 remarked ^ow much the abuses of the Catholic Church have 
 diminished since the establishment of the Protestant religion. 
 "What popes and councils could not do by their decrees a fortunate 
 rivalry has accomplished without difficulty ; and scandals which 
 would afford to hostUe sects a matter of triumph have been care- 
 fully avoided. The indirect means of free competition among 
 religions has more power to restrain and reform the clergy than 
 all positive laws. 
 
 let us take another example from political economy. Attempts 
 have been made to reduce by law the price of merchandise, and 
 particularly the interest of money. It is true that high prices 
 are an evil only in comparison with some good of which they 
 prevent the enjoyment ; but such an evil as they are, there is 
 reason for seeking to diminish it. To effect that purpose, a mul- 
 titude of restrictive laws have been devised, a fixed tariff of 
 prices, a legal rate of interest. And what has been the conse- 
 quence ? These regulations have always been eluded ; punish- 
 ments have been multiplied; and the evil, instead of being 
 diminished, has become greater. The only efficacious means is an 
 indirect one, which few governments have had the wisdom to 
 employ. To grant all merchants and capitalists a free right of 
 competition, to intrust to them the business of making war upon 
 each other, of underbidding each other, and of attracting pur- 
 chasers by the offer of more advantageous terms — such is this 
 
363 PEINCIPLES OP THE PENAL CODE. 
 
 means. Free competition amounts to the same thing as the grant 
 of a reward to him -who furnishes merchandise of the best 
 kind at the lowest price. This immediate and natural reward, 
 which a multitude of competitors flatter themselves with the hope 
 of obtaining, acts with more efficacy than a distant punishment 
 which every one expects to escape. 
 
 Before entering upon the exposition of these indirect means, it 
 should be observed that the classification here employed is, to a 
 certain extent, arbitrary, and that several of them may be pro- 
 perly arranged under diiferent heads. To distinguish them 
 invariably, one from the other, would require us to enter upon a 
 metaphysical analysis, very subtle and very fi>tiguing. It is 
 enough for the present purpose that all indirect means may be 
 placed under one or the other of the heads proposed, and that the 
 attention of the legislator is directed to the principal sources 
 whence they may be derived. 
 
 There is one more preliminary remark of essential importance. 
 Among the variety of means about to be explained, there is none 
 which is recommended as especially fit for any particular govern- 
 ment, and stiU less for aU government in general. The special 
 advantage of each measure, considered by itself, will be indicated 
 under its proper head ; but each may have relative inconveniences, 
 which it is impossible to determine without knowing the circum- 
 stances of the particular case. It ' ought to be well understood 
 that the object here proposed is not to advise the adoption of 
 such- or such a measure, but simply to bring it into view, and to 
 recommend it to the attention of those whose province it is to 
 judge of its applicability. 
 
 CHAPTER I. 
 
 Means of ialdng away the Physical Power to do Harm. 
 When the will, the knowledge, and the power necessary to the 
 performance of an act concur, that act is of necessity performed. 
 Inchnation, knowledge, power , — these, then, are the three points at 
 
PEINCIPLES OF THE PENAL CODE. 363 
 
 ■which it is necessary to apply the influence of law, in order to 
 determine the conduct of men. These three words contain in 
 the abstract the sum and substance of all that can be done by 
 legislation, direct or indirect. 
 
 I begin with power, because means ic. this respect are' more 
 simple and more limited, and because, in those cases in which we 
 can succeed in taking away the power to do harm, we have accom- 
 plished everything. Success is certain. 
 
 Power may be distinguished into two kinds : 1st. Internal 
 power, that which depends upon the intrinsic faculties of the indi- 
 vidual ; 2nd. External power, that which depends upon persons 
 and things external to the individual, but the aid of which he 
 must have, in order to act. 
 • As to internal power, that which depends upon the faculties of 
 the iudividual, it is scarcely possible to deprive a man of it "with 
 advantage. The power of doing evil is inseparable from the 
 power of doing good. "With his hands cut oif, a man cannot 
 steal, but neither can he work. 
 
 Besides, these privative means are so severe that they cannot be 
 employed except upon criminals already convicted. Imprison- 
 ment is the only one of them that can be justi;fied, in certain 
 cases, to prevent an apprehended offence. 
 
 The legislator will find greater resources for the prevention of 
 offences by turning his attention to- the material objects which 
 aid their commission. 
 
 There are cases in which the power of doing harm may be 
 taken away, by excluding what Tacitus calls irritamenta malorum, 
 irritations to evil,-^the subjects, the instruments of offence. In 
 such cases, the policy of the legislator may be compared to that 
 of a nurse ; iron bars at the windows, grates around the fire, the 
 care of keeping sharp and dangerous instruments froiji the hands 
 of children, are means of the same kind as the prohibition to sell 
 and to make tools for the fabrication of false money, veneriflc 
 drugs, arms easy to be concealed, dice, or other instruments of 
 prohibited games, and the prohibition to make or to have certain 
 nets for the chase, or other instruments for trapping wild game. 
 
364 PKiNciPLES or the penax code. 
 
 Mahomet, not trusting to the resti'aining power of reason, 
 wished to take away from men the power of abusing strong 
 drinks ; and if we consider the climate of warm countries, where 
 wine renders men furious rather than stupid, we shall find per- 
 haps that the total prohibition is a milder method of procedure 
 than a permission which produces a numerous class of offences, 
 and consequently of punishments. 
 
 Imposts upon spirituous liquors fulfil, in part, the same end. 
 In proportion as the price is raised above the capacity of the 
 most numerous class to purchase, they are deprived of the means 
 of giving themselves up to intemperance. 
 
 Sumptuary laws, inasmuch as they prohibit the introduction 
 of certain articles which are objects of jealousy to the legislator, 
 may be referred to this head. It is this which has rendered so 
 famous the legislation of Sparta; the precious metals were 
 banished; strangers were excluded; travelling was not per- 
 mitted. 
 
 At Geneva there was a prohibition to wear diamonds, and 
 the number of horses which an individual might keep was 
 limited.* 
 
 There might be mentioned under this head many English 
 statutes relative to the sale of spirituous liquors. It is pro- 
 hibited to expose them to sale in the open air. A licence must 
 be obtained, and paid for, &c. The prohibition to open certain 
 places of amusement upon Sunday appertains to this head. 
 
 To the same class belong the measures adopted to destroy 
 libels, seditious writings, obscene figures exposed in the streets, 
 and to prevent the printing and publication of works thought to 
 have a pernicious tendency. 
 
 The ancient police laws of Paris forbade a servant to wear a 
 sword, or even to carry a cane or staff. This perhaps was a 
 simple distinction of rank ; perhaps it was a measure of security. 
 
 "Where a particular class of the people is oppressed by the 
 sovereign power, prudence requires that they should be forbidden 
 
 * To cite these usages is not to propose them as models. They are 
 cited to show under what class such laws ought to be arranged. 
 
PEINCIPUSb OP THE PENAL CODE. 365 
 
 to carry arms. The greater injury becomes a justification for the 
 smaller injury. The Philistines obliged the Jews to come to 
 them every time they wanted to sharpen their axes and scythes. 
 In China the fabrication and the sale of arms is reserved exclu- 
 sively to the Tartar-Chinese. 
 
 By a statute of George III., all persons, except traders, are for- 
 bidden to keep in their houses more than fifty pounds weight of 
 gunpowder, and traders are not allowed to have more than two 
 hundred pounds weight on hand at one time. The reason 
 assigned is the danger of explosions. In the statutes relating 
 to high roads and turnpikes, the number of carriage horses is 
 limited to eight, with an exception in favour of certain trans- 
 portations, and of artillery and munitions of war, for the service 
 of the king. The reason assigned is the preservation of the roads. 
 
 "Whether any of these measures, and others of the same sort, 
 
 have a political object behind the reasons assigned for them, that 
 
 is what I do not pretend to say ; but it is certain that such 
 
 . expedients may operate to take away the means of revolt, and to 
 
 diminish facilities for smuggling. 
 
 Among the expedients of this sort, I know none more happy or 
 more simple than that commonly used in England to render difi- 
 cult the theft of bank-notes. When it is necessary to send them 
 by a messenger or the post, they are cut into two parts, which 
 are sent separately. The theft of half a bank-note would be 
 useless, and the difiiculty of stealing the two parts, one after the 
 other, is so great that the offence is almost impossible. 
 
 There are professions for the exercise of which proofs of 
 capacity are required. There are others which the laws render 
 incompatible with each other. In England many offices of jus- 
 tice are incompatible with the profession of an attorney; it is 
 feared that the right hand might be secretly labouring for the left. 
 
 Persons who contract with the administration for the supply of 
 commissary stores, and the provisioning of the fleet, cannot have 
 a seat in parliament. These persons may be defaulters, and be 
 subject to parliamentary investigation ; it is not proper, therefore, 
 that they should be members. But there are stronger reasons yet 
 
366 PBINOIPLES OP THE PENAL CODE. 
 
 for this exclusion, derived from the danger of increasing minis- 
 terial influence. 
 
 CHAPTEK II. 
 
 Prohibition of acquiring Knowledge - wliioli may he turned to a 
 had purpose. 
 
 I MENTION tMs kind of policy only to condemn it. It has pro- 
 duced the censorship of the press ; it has produced the inquisition ; 
 and wherever it is employed it will always produce the hrutaUza- 
 tion of mankind. 
 
 I propose here to show, — 1st, that the diffusion of knowledge 
 is not injurious on the whole, the offences of refinement being 
 less fatal than those of ignorance ; 2nd, that the most advan- 
 tageous method of combatting the evil which may result from a 
 limited degree of knowledge is to augment its quantity. 
 
 In the first place, the diffusion of knowledge is not iajiirious 
 on the whole. Some writers have thought, or seemed to think, 
 that the less men know the better off they wUl be : that the less 
 enlightened they are, the less acquaintance they will have with 
 the, objects that serve as motives to evU, or as means of commit- 
 ting it. It is not surprising that fanatics have entertained this 
 opinion, since there is a natural and constant rivalry between the 
 knowledge of things real, useful, and intelligible, and the know- 
 ledge of things unintelligible, imaginary, and useless. But these 
 notions about the dangers of knowledge are sufiSciently common 
 among the mass of mankind. The age of gold, — that is, the age 
 of ignorance, — is spoken of with regret. To put in a clear light 
 the error upon which these notions rest, there needs a more 
 precise method of estimating the evil of an offence than any 
 hitherto employed. 
 
 It is not astonishing that offences of refinement are more 
 odious than offences of ignorance, — that is, of brutal violence. 
 In determining the greatness of offences, the principle of anti- 
 pathy has been more followed than the principle of utility. 
 Antipathy gives more attention to the apparent depravity of 
 
PaiNCULES OP THE PEIS'Al CODI;. 367 
 
 character indicated by the offence than to anything else. This, 
 in the eyes of passion, is the salient point of the action, in com- 
 parison with which the strict examination of ntUity. always 
 appears too cool. Now, the more knowledge and refinement an 
 offence indicates, the more proof there is of reflection on the 
 part of the offender, and of depravity in his moral disposition. 
 But the evil of an offence, the sole object which the principle of 
 utility regards, is not determined by depravity of character alone ; 
 it depends immediately upon the sufferings of the persons who 
 are affected by the offence, and upon the alarm which it excites 
 in the community ; and, in the sum of evU, the depravity which 
 the culprit manifests is not an essential circumstance, but merely 
 an aggravation. 
 
 The greatest offences are those, for which the smallest degree of 
 knowledge is sufficient; the most ignorant individual always 
 knows enough to commit them. Inundation is a graver crime 
 than house-flring ; house-firing than homicide ; homicide than 
 robbery; robbery than pUfering. This proposition may be de- 
 monstrated by an arithmetical process, by an inventory of the 
 items of evil in each case, by a comparison of the greatness of 
 each individual suffering, and of the number of individuals who 
 are made, to suffer. But how much knowledge is required to 
 enable a man to commit these offences ? The most atrocious of 
 aU demands only a degree of intelligence possessed by the most 
 barbarous, the most savage of men. 
 
 Eobbery is worse than seduction or adultery ; but robbery is 
 most frequent in times of barbarism, seduction and bdultery in 
 those of refinement. 
 
 The dissemination of knowledge has not increased the number 
 of pffences, nor even the facility of committing them ; it has only 
 diversified the means of their perpetration. And how? By 
 gradually substituting less injurious means in the place of those 
 which are more injurious. 
 
 Is a new method of theft invented? The inventor profits for 
 a time by his discovery; but presently his secret is found out, 
 and people are on their guard. It then becomes necessary to 
 
368 PRINCIPLES OP IHE PENAL CODE. 
 
 have recourse to some new means, which has its turn, like the 
 first, and passes by in the same way. All this is stUl but theft, 
 not so bad as highway robbery, which itself is not so bad as 
 plundering committed by armed bands.'' "Why ? Because the con- 
 fidence every one has in his own prudence and his own sagacity 
 prevents him from being so much alarmed by theft as by robbery. 
 
 Let it be granted, however, that bad men abuse everyfhing ; 
 that the more they know, the more means they have of doing 
 evU ; what follows ? 
 
 If the good and the bad composed two distinct races, like the 
 white and black, the one might be enlightened and the other 
 kept in ignorance. But since it is impossible to discriminate 
 between them, and especially when we consider the frequent 
 alternation of good and evil in the same individual, all must be 
 subjected to the same rule. General light, or general darkness ; 
 there is no middle course. 
 
 However, the very evil complained of carries with it its own 
 cure. Knowledge cannot give advantage to the bad, except so 
 far as they have the exclusive possession of it. A. snare which 
 is known ceases to be a snare. The most ignorant tribes have 
 known how to poison the tips of their arrows ; but it is only 
 nations well instructed who have become acquainted with all 
 poisons, and have known how to oppose them by antidotes. 
 
 All men have the capacity to commit offences ; but only en- 
 lightened men are able to discover laws which can prevent them. 
 The more ignorant a man is, the more he is inclined to separate 
 his private interest from the interest of his feUows. The more 
 
 * That is, on the supposition that the dainage of the offence is the 
 same ; for there is a point of view in which theft is worse than robbery, 
 since one may possess himself of a greater sum of money by fraud than 
 by robbing on the highway. 
 
 For proofs of the superiority of modem manners over ancitot times, 
 see Hume's Essay on Population. For proofs of their superiority over 
 the manners of the Middle Ages, see Voltaire's General Sistory ; Hume's 
 History 0/ Englcmd ; Soiertson's Introduction to Cha/rles V. ; Ba/rringion's 
 Observations v/pon JUngKsh Statutes ; and Ohastellux, in hie Treatise upon 
 PubUa Happiness, a work happily conceived but not well executed. 
 
PEINCIPLES OK THE PENAL COBE. 369 
 
 enlightened he is, the more clearly will he perceive the connec- 
 tion between his private interest and the interest of the whole. 
 
 look through history; the most barbarous ages present an 
 assemblage of all offences, offences of cunning as well as offences 
 of violence. Barbarism, though it has some vices peculiar to 
 itself, seems not to exclude vices of any kind. At what epoch ■ 
 were false titles and forged grants most multiplied ? "Wlien the 
 clergy alone knew how to read ; when, through the superiority - 
 of their knowledge, they regarded men almoat_ as we regard 
 horses, animals which we could not subdue to the bit, if their, 
 intellectual faculties were equal to ours. Why was recourse had, 
 during the same period, to judicial duels, to trials by fire and 
 water, and to all those strange means called judgments of Goi ? 
 Because, during, that infancy of reason, there were no principles 
 known by which to distinguish truth from falsehood. 
 
 Compare the results in states in which the publication of ideas ■ 
 has been restrained, and in those where freedom of thought and 
 of speech has been permitted. You have, on the one side, Spain, 
 Portugal, Italy ; on the other, England, Holland, North America. 
 Where is the most happiness ? Where the best morals ? Where > 
 the most crimes ? Where is society most agreeable and most , 
 secure,? 
 
 Too many praises have been lavished upon institutions, the 
 founders of which made knowledge a monopoly. Such were the- 
 priests in ancient Egypt, the Brahmins of Hindostan, the Jesuits,- 
 in Paraguay. If their conduct merits praise, it is only in rela- 
 tion to the interests of those persons who have administered these ,• 
 forms of government, not as regards the interest of those who 
 have been subject to them. It may be admitted that the people-: 
 have been quiet and docile under these theocracies ; but have they 
 been happy ? It is not credible that they have been, unless an ab- 
 ject servitude, vain terrors, useless obligations, macerations, pain- 1 
 ful observances, saddening opinions, are no obstacles to hapginess.'J 
 
 These governments have not so much attained their end. by. 
 maintaining natural ignorance, as by spreading prejudices, and. 
 propagating errors. The chiefs themselves have, always, ended 
 
 B B 
 
870 PBItfCrPLES OF THE PENAL CODE. 
 
 by becoming the victims of tMs narrow and pusUlanimous policy. 
 States retained in a constant inferiority, by institutions opposed 
 to every kind of progress, become tbe prey of nations wbo bave 
 acquired a relative superiority. States grown old in an infancy, 
 which has been prolonged by their tutors, that they might the 
 more easily govern, have always offered an easy conquest ; and 
 . once subjected, have passed with little or no resistance from one 
 master to another. 
 
 But it is said we do not pretend to keep men in ignorance ; all 
 governments perceive the necessity of knowledge ; what they are 
 afraid of is the liberty of the press. They do not oppose the 
 publication of scientific treatises ; but is it not reasonable that 
 they should oppose the spread of immoral or seditious writings, 
 the evil effects of which cannot be prevented if they are once 
 allowed to circulate ? Punishing a guilty author may act as a 
 preventive to those who might incline to imitate him ; but to 
 prevent the publication of bad books by the institution of the 
 censorship, is to check the evil at its source. 
 
 The liberty of the press has its inconveniences ; nevertheless, 
 the evUs which result from it are not to be compared to those of 
 a censorship. 
 
 "Where will you find that rare genius, that superior intelligence, 
 that mortal, accessible to aU truths, and inaccessible to any 
 passion, to whom can be intrusted this supreme dictatorship over 
 all the productions of the human mind ? Do you suppose that a 
 locke, a Leibnitz, or a Newton, would have had the presumption 
 to undertake it ? And what is this power which you are forced 
 to coijfer upon inferior men ? It is a power which by a singular 
 necessity combines in its exercise all the causes of partiality, and 
 all the characteristics of injustice. What is a censor ? He is an 
 interested judge, a sole judge, an arbitrary judge, who proceeds 
 in secret, condemns without a hearing, and decides without appeal. 
 Secrecy of procedure, that greatest of abuses, is absolutely essen- 
 tial. If a book were publicly examined, it would be publishing 
 the book, in order to know if it ought to be published. 
 
 As to the evil which results from a censorship, it is impossible to 
 
PRINCIPLES OP THE PENAI CODE. 371 
 
 measure it, because it is impossible to tell wbere it ends. It is 
 notbing less than tbe danger of stopping tbe 'whole progress of 
 the human mind in all its paths. Every new and important 
 truth must of necessity have many enemies, for the single reason 
 that it is new and important. Is it to be presumed that the 
 censor will belong to that class, infinitely the smaller, which 
 elevates itself above established prejudices ? And though he. 
 should have that uncommon strength of mind, wiU he have the 
 courage to endanger himself on account of discoveries of which he 
 wiU not share the glory ? There is but one sure course for him 
 to take ; to proscribe everything which rises above common ideas, 
 to draw his pen through everything elevated. He risks nothing 
 by prohibition, but everything by permission. In doubtful cases, 
 it wiU not be he that suffers ; it wiU be Truth. 
 
 If the advance of the human mind had depended upon the good- 
 will of, those in authority, where should we be to-day? Eeli- ■ 
 gion, legislation, morals, the physical sciences, all would be in 
 darkness. But it is not necessary to dwell upon so common an 
 argument. 
 
 The true censorship is that of an enlightened public, which 
 discountenances false and dangerous opinions, and encourages 
 useful discoveries. In a free country, the audacity of a libel does 
 not save it from general contempt; but by a contradiction easy 
 to be explained, the indulgence of the publio in this respect is 
 always in proportion to the rigour of the government. 
 
 CHAPTER III. 
 
 Indirect Means of preventing the Wish to commit Offences, 
 
 We have seen that legifelation can only operate by influencing 
 the power, the knowledge, and the will. "We have spoken of the 
 indirect means of taking away the power to do injury; we have 
 shown that the policy of preventing men from acquiring infor- 
 mation, does more hsirm than good. AU the indirect means, then, 
 which we can use with advantage, must be employed in directing^ 
 
 B B 2 
 
372 PErNCIPI.ES OF THE PENAL CODE. 
 
 tie inclinations of men, in putting into operation the rules of a 
 logic hitherto but little known, the logic of the will — a logic which, 
 as Horace has so well expressed it, seems often to be opposition 
 to that of the understanding : — 
 
 Videa meUora 
 Proboque, et deteriora sequor. 
 
 I see the better 
 And approve it ; and the worse I follow. 
 
 The means about to be presented are of a nature to put a stop 
 in many cases to this interior discord ; to diminish that contra- 
 riety among motives, which often owes its existence to want of 
 address on the part of the legislator, to an opposition which he 
 has himself created between the natural sanction and the political 
 sanction, between the moral sanction and the religious sanction. 
 If he could make aU these powers concur towards the same end, 
 all the faculties of man would be in harmony, and the will to 
 do evil would not exist. In cases where this end cannot be at- 
 taioed, it is necessary, at all events, that the force of the tutelary 
 motives should exceed that of the seductive motives. 
 
 The indirect means by which the wOl can be influenced, may 
 be illustrated under the form of political or moral problems, of 
 which the solution may be shown by various examples : 
 
 Problem First. — To change the course of dangerous desires, and 
 to direct the inclinations towards amusements conformable to the 
 public interest. 
 
 Second. — To arrange so that a given desire may bo satisfied 
 without injury, or with the least possible injury. 
 
 Third. — To avoid furnishing encouragements to crime. 
 
 Fov/rth. — To increase responsibility in proportion as temptation 
 increases. 
 
 Fifth. — To diminish the sensibility to temptation. 
 
 Sixth. — To strengthen the impression of punishments upon the 
 imagination. 
 
 Seventh. — To facilitate knowledge of the fact of an offence. 
 
 Eighth. — To prevent an offence by giving to many persons an 
 immediate interest to prevent it. 
 
PEINCrPLES OF THE PENAI CODE, 373 
 
 Ninth. — To facilitate the means of recognising and finding 
 individuals. 
 
 Tenth. — To increase the difficulty of escape. 
 
 Meroenth. — To diminish the uncertainty of prosecutions and 
 punishments. 
 
 Twelfth. — To prohibit accessory offences, in order prevent the 
 principal offence. 
 
 After these means, of which the object is special, others more 
 general wiU be pointed out, such as the culture of benevolence, 
 the culture of honour, the employment of the impulse of religion, 
 and the use to be made of the power of instruction, and of 
 education. 
 
 CHAPTEE IV. 
 
 To change the Course of Bangerom Desires, and to direct the 
 Inclinations towards Amusements conformable to the Public 
 Interest. 
 
 The object of direct legislation is to combat pernicious desires, 
 by prohibitions and punishments directed against the injurious 
 acts to which those desires give birth. The object of indirect 
 legislation is to counteract their influence by increasing the force, 
 of less dangerous desires, cap3,ble of entering into rivalry with 
 them. 
 
 There are two objects to be considered — ^What are the desires 
 which it is an object to weaken ? By what means can that end 
 be obtained? 
 
 Pernicious desires are of three classes : — 1st, Malevolent pas- 
 sions ; 2nd, The appetite for strong drinks ; 3rd, Idleness. 
 
 The means of weakening these desires may be reduced to three 
 heads: — 1st, To encourage honest inclinations; 2nd, To avoid 
 forcing men into idleness ; 3rd, To favour the consumption of non- 
 inebriating liquors, in preference to those of an intoxicating quality. 
 
 Some persons may be surprised that the catalogue of vicious 
 inclinations is so limited; but they should recollect that the 
 human heart has no passions absolutely bad. There is none 
 
374 PEiNcrpLES OF the penai code. 
 
 ■which does not stand in iieed of guidance ; and at the same time 
 none -which ought to be eradicated. "When the angel Gabriel 
 prepared the prophet Mahomet for his di-vine missiop, he plucked 
 from his heart a black spot, which contained the seed of evU. 
 "Unfortunately, this operation cannot be practised upon the hearts 
 of ordinary men. The seeds of good and the seeds of evil are 
 inseparably mixed. The inclinations are governed by motives ; 
 but all pains and all pleasures are motives ; pains to be avoided, 
 pleasures to be pursued. 'Now, all these motives may produce 
 all sort of effects, from the best to the worst. They are trees 
 which bear wholesome fruits or poisons, according to exposure, 
 according to the care of the gardener, according to the wind that 
 blows, or the temperature of the day. The purest benevolence, 
 confining itself too exclusively to a single subject, or mistaken in 
 its means, may produce great evils. Attachment to one's self, 
 though occasionally it becomes hurtful, is constantly necessary ; 
 and in spite of their deformity, the malevolent passions are at 
 least useful as means of defence, as safeguards against the inva- 
 sion of personal interest. "W"e ought not, then, to attempt rooting 
 out any affections of the human heart, since there is none which 
 does not play its part in the system of utility. "W^e should con- 
 fine ourselves to the operation of these affections in detail, accord- 
 ing to the direction which they take, and the effects which they 
 are likely to produce. A useful ' balance may be established 
 between these inclinations, by strengthening those which are apt 
 to be too weak, and by weakening those which are too strong. 
 It is thus that the cultivator directs the course of waters in 
 such a manner that his grounds suffer neither from overflow 
 nor from drought. ' 
 
 The passion for inebriating liquors is, properly speaking, the 
 only one that can be extirpated without doiag any injuly ; for 
 the irascible passions, as I have said, are a necessary stimulant 
 in cases when persons are obliged to protect themselves, and to 
 repel the attacks of an enemy. The love of repose is not inju- 
 rious in itself; indolence, however, is an evil, inasmuch as it 
 favours the ascendancy of the hurtful passions. "However, these 
 
PTUNCrPLES OP THE PENAt CODE. 37S 
 
 three desires may be looked upon as ec[ually in need of beiii|^ 
 repressed. It is hardly to be feared that we can have too great 
 success against the inclination to idleness, or that the vindictive 
 passions can be reduced below the point of utility. 
 
 The first expedient, as I have said, is to encourage innocent 
 amusements. It is a branch of that science, so ooitiplieated and 
 so iU-defined, -which consists in advancing civilization. The 
 state of barbarism differs from civilization by two characteristic 
 traits :■ — 1st, The force of the irascible appetites ; 2nd, The small 
 number of objects of enjoyment offered to the concupiscent 
 appetites.* 
 
 The occupations of a savage after he has supplied himself with 
 physical necessaries, the only ones he knows, are soon described. 
 The pursuit of revenge ; the pleasure of drunkenness if he has 
 the means ; sleep ; or perfect indolence ; such is the sum total of 
 his resources. Each of these inclinations is favourable to the 
 development and to the action of the other. Eesentment finds 
 easy access to a mind unoccupied; idleness leads to drunkenness; 
 and drunkenness produces quarrels, which nourish and multiply 
 resentments. The pleasures of love, not being mingled with the 
 sentimental refinements which embellish and increase them, seem 
 not to play a great part in the life of the savage, and go but a 
 little way towards filling up the intervals of exertion. 
 
 Under a regular government the necessity of vengeance is sup- 
 pressed by legal protection, and the pleasure of giving one's self 
 up to it is coimteracted by the fear pf punishment ; the power of 
 indolence is enfeebled ; but the love of strong liquors is not 
 diminished. A nation of Savages and a nation of hunters are 
 convertible expressions. The life of the hunter, as well as that 
 of the fisherman, provided they know how to preserve the game 
 they take, affords long intervals of idleness ; while in a civilized 
 state, the mass of the community is composed of labourers and 
 artisans, who have scarcely the leisure necessary for sleep- and 
 
 * This distinofcion of the sohoolmeu is sufficiently oomplete. To tllte 
 first class belong the pleasures of maJevolenoe ; to the second, all other 
 pleasures. 
 
■376 PEINCIPLES OP THE PENAL CODE. 
 
 relaxation. But tlie misfortune is, that the passion for strong drink 
 -can be satisfied in the midst of a most laborious life, and that it 
 "trenches upon the hours allotted to repose. In the lowest condi- 
 tions poverty is a restraint upon it; but artisans, whose labour is 
 -better -paid, can make great sacrifices to this fatal taste, and the 
 -opulent classes may devote all their time to it. Thus we see, in 
 -ages of barbarism, that the upper classes have divided their whole 
 life between war ; the chase, which is the image of war ; the 
 tinimal functions ; and long repasts, of which drunkenness was 
 the greatest attraction. Such is the whole history of a great 
 proprietor, a great feudal lord of the Middle Ages. The privilege 
 of this noble warrior, or of this noble hunter, extended into the 
 midst of a more civilized society the occupations and the cha- 
 racter of a savage. 
 
 This being so, every innocent amusement which human art 
 -can invent, is useful under a double point of view : — 1st, For the 
 very pleasure which results from it ; 2nd, From its tendency to 
 weaken the dangerohs inclinations above described. By innocent 
 amusements must be understood aU those which cannot be proved 
 to be injurious. Their introduction being favourable to the hap- 
 ■piness of society, it is the duty of the legislator to encourage 
 them, or, at least, to put no obstacle in their way. They will 
 be enumerated here ; first, those which are esteemed the most 
 ■gross, and afterwards those which suppose more refinement. 
 
 1st. The introduction of a variety of aliments, and the progress 
 ■of the art of gardening, applied to the production of nutritious 
 vegetables. 
 
 2nd. The introduction of non-inebriating liquors, of which tea 
 and coffee are the principal. These two articles, which super- 
 ficial minds will be astonished to see figuring in a catalogue of 
 moral objects, are so much the more useful, since they come into 
 direct competition -with inehriating liquors. 
 
 3rd. Progress in all that constitutes elegance, whether in dress, 
 furniture, the embellishment of grounds, &c. 
 
 4th. The invention of plays and pastimes, whether athletic 
 or sedentary, among which games of cards hold a distinguished 
 
PEUfCIPLES OF THE PENAL CODE. 377 
 
 rank. Games of hazard should alone be excluded. These tran- 
 quil sports have brought the sexes together, have diminished 
 ennui, that malady peculiar to the human race, especially to the 
 opulent class and to the old. 
 
 5th. The cultivation of music. 
 
 6th. Theatres, assemblies, public amusements.* 
 
 7th. The cultivation of the arts and sciences, and of litera- 
 ture. 
 
 When these different means of enjoyment are placed in opposi- 
 tion to the means necessary to provide for subsistence, they are 
 called objects of luxury ; but if their tendency be such as is above 
 suggested, luxury, singular as it may appear, is rather a source 
 of virtue than of vice. 
 
 This branch of policy has not been entirely neglected ; but it 
 has been cultivated rather with political than with moral views. 
 The object has rather been to render the people tranquil and sub- 
 missive to the government, than to render the citizens more 
 united among themselves, more ha,ppy, more industrious, more 
 virtuous. 
 
 The sports of the circus, among the Eomans, formed one of 
 the principal objects of the government's attention. It was not 
 only a means of coiiciliating the affections of the people, but also 
 of drawing off their thoughts from public affairs. 
 
 Cromwell, whose ascetic principles did not allow him this 
 resource, had no other means to occupy the public mind but to 
 engage the nation in foreign wars. 
 
 At Venice, a government excessively jealous of its authority 
 showed the greatest indulgence to pleasures. 
 
 The processions and other religious fetes of Catholic countries 
 fulfil, in part, the same object as the games of the circus. 
 
 All these institutions have been considered by political writers 
 
 * " I heard M. d'Argenson say, that when he was Lieutenant of Police 
 there were more irregularities and debaucheries committed in Paris, 
 during the fifteen days of Lent, when the theatres were shut, than during 
 four months of the season when they were open."^ — Memoirs of PoUnitu, 
 vol. iii. p. 312. 
 
378 PEINOIPLES OF THE PENAL CODE. 
 
 as SO many means of alleviating tte yoke of power, of turning 
 tte public attention towards agreeable objects, and preventing it 
 from beiug occupied with public affairs. This effect, though it 
 was not the object of their establishment, has caused them to 
 obtain more favour after being established. 
 
 Peter the Great made use of a higher and more generous policy. 
 The manners of the Russians, their proneness to intoxication ex- 
 cepted, were rather Asiatic thanEuropean. Peter I., wishing to 
 moderate their grossness, and to temper their ferocity, employed 
 expedients perhaps a little too direct. He used all possible en- 
 couragements, and even had recourse to violence, in order to in- 
 troduce European dress and European spectacles, assemblies and 
 arts. To lead his subjects to imitate the other nations of Europe 
 was, in other words, to civilize them. But he encountered the 
 greatest resistance to all these innovations. Envy, jealousy, 
 contempt, and a multitude of anti-social passions, opposed this 
 assimilation with foreign rivals. These passions no longer re- 
 cognised their objects, when visible marks of distinction were 
 effaced. In taking from his subjects the exterior by which they 
 were distinguished, he took from them, so to speak, the pretext 
 and the aliment of a hatefal rivalry. He associated them vdth 
 the great republic of Europe ; and they had everything to gain 
 by that association. 
 
 The rigid observation of Sunday, such as prevails in Scotland, 
 in England, and in some parts of Germany, is a violation of thig; 
 policy. The Act of Parliament upon this subject, passed in 1781, 
 seems more appropriate to the times of CromweU than our own. 
 It prohibits people from every kind of Sunday amusement, except 
 sensual pleasures, drunkenness, and debauchery. It was in the 
 name of good morals that a law so contrary to good morals was 
 enacted. Sunday becomes by this kind of rigour an institution 
 in honour of idleness, and profitable to all the vices. 
 
 Two suppositions are necessary to justify such a law : one, 
 that amusements, innocent six days in the week, change their 
 nature, and become mischievous on the seventh ; the other, that 
 idleness, the mother of all the viCes, is the safeguard of religion. 
 
PEIS-CIPLES OF THE PENAl CODE. 379 
 
 I do not know wliat to make of these ideas ; let tte tlieologiansi 
 expound them.* 
 
 If a revealed law is in contradiction to morality, it ought not 
 to be listened to. "We have more certain proofs of the political 
 effects of an institution than we can have of the truth of a religious 
 history, founded upon events out of the course of nature. In 
 one case we have the testimony of our own senses ; in the other 
 case we must rely upon the testimony of others, a testimony 
 transmitted from hand to hand, and weakened by every trans- 
 mission, which alters more or less its primitive traits. 
 
 But this contradiction does not exitst. This rigorous observ- 
 ance of Sunday has no foundation in the Grospel ; it is even con- 
 trary to its text, and its positive examples. The judicious 
 Fenelon, whom no one will accuse of having misunderstood the 
 spirit bf Christian morality, rebuked the indiscreet severity of 
 his curates, and was unwilling that the people of his diocese 
 should be forbidden to indulge on Sundays, after the exercises of 
 religion were over, in dances and rustic sports. 
 
 I find fault not with a day for the suspension of ordinary 
 labours, nor with a day devoted in part to religious worship ; but 
 with the absurdity of convertiag into offences, during that day, 
 the most necessary labours of the! field, and the public exercise 
 of the most harmless amusements. 
 
 To deprive the people one day in the week of pleasures 
 acknowledged to be ianocent, is to take away a portion of their 
 happiness ; for if happiness is not composed of pleasures, of what 
 is it composed ? How is it possible to justify the severity of the 
 
 * The chaplain of Newgate takes great care to have it inserted in the 
 Biography of Malefactors, as their own confession, that the commence, 
 ment of their career was the molaUon of the Sabbath. I believe he would 
 be nearer the truth, if he said that they began their career by observing 
 the Sabbath — observing it, that is, in a particular way. Not knowing 
 what to do with their time and their money, what other resource have 
 they but the tavern? Drunkenness renders them quarrelsome and 
 stupid, destroys their health, their aptitude for labour, and their habits 
 of economy, and throws them into bad company. Thus they are prepared 
 to enter upon the career of crime. 
 
380 PEINCIPLES OE THE PENAL CODE. 
 
 legislator, who, without necessity, takes away from the labouring 
 classes those little enjoyments which soften their hard lot, and 
 who forces them into gloominess or vice, under pretext of 
 religion ? 
 
 There are two ways of doing injury to mankind : one, the 
 introduction of pains ; the other, the exclusion of pleasures. If 
 one of these ways deserves to be condemned, how can the other 
 be worthy of praise ? Both are acts of tyranny ; for in what 
 does tyranny consist, if not in this ? It is only effects which are 
 here spoken of; no doubt good is intended; but it is easier to 
 reason vaguely, than to go to the bottom of a matter ; to float 
 here and there between folly and wisdom, than to persevere in 
 one or the other ; to follow the current of prejudice, than to 
 resist its torrait. However good the intention may be, it is 
 certain that the tendency of this ascetic practice is hurtful and 
 immoral. 
 
 Happy the people which is seen to elevate itself above gross 
 and brutal vices, to cultivate elegance of manners, the pleasures 
 of society, the embellishment of gardens, the fine arts, the sciences, 
 public amusements, the exercises of the understanding ! Eeligions 
 which inspire gloom, governments which render men distrustful, 
 and which keep them apart, contain the germ of the greatest 
 vices, and the most injurioug passions. 
 
 CHAPTEE V. 
 
 To satisfy certain Desires without Injwry, or with the least 
 possible Injury. 
 
 Desibes, both those of which we have spoken, and those of which 
 we are about to speak, are susceptible of being satisfied in differ- 
 ent ways, and upon different conditions, through all the degrees 
 of the moral scale, from innocence up to the highest point of 
 criminality. That these desires may be satisfied without injury, 
 is the first object to be accomplished ; but if this object is unat- 
 tainable, the second object is to render their satisfaction less in- 
 
PEINCIPLES OP THE PENAL CODE. 381 
 
 jurioTis to the community than would be the violation of a law. 
 If even this second end is unattainable, it then becomes an object 
 to arrange things in such a way that the individual, placed 
 by his desires between two offences, may be inclined to choose 
 that which is the least injurious. This last object seems humble; 
 it is a kind of composition with vice ; it is, as it were, haggling 
 with it, and beating it down to the lowest possible rate. 
 
 Let us examine how these several points can be attained, in 
 the case of three kinds of imperious desires : — 1st, Vengeance ; 
 2nd, "Want ; 3rd, The sexual passion. 
 
 Section I. 
 
 There are two means of satisfying the vindictive appetites 
 without harm : — 1st, To provide legal redress for every kind of 
 personal injury ; 3nd, To establish some competent satisfaction 
 for injuries which affect the point of honour. 
 
 Failing these means, there is only one expedient to satisfy 
 these vindictive appetites with the least harm, and that is, by 
 showing indulgence to dueUihg. 
 
 1st. To provide Legal Redress for all kinds of Injuries. — The 
 vices and the virtues of mankind depend very much upon the 
 circumstances of society. Hospitality, it has been observed, is 
 most practised where it is most necessary. It is the same with 
 vengeance. In the state of nature the fear of private revenge is 
 the only restraint upon force, the only safeguard against the 
 violence of the passions. It corresponds to the fear of punish- 
 ment in a state where laws are established. Every improvement 
 in the administration of justice tends to diminish the force of the 
 vindictive appetites, and to prevent acts of private animosity. 
 
 The principal interest in view, in cases of legal redress, is the 
 interest of the injured party. But even the offender finds an 
 advantage in this arrangement. Leave a man to revenge him- 
 self, and his vengeance knows no limits. Grant him what, upon 
 a cool examination, you regard as a competent satisfaction, and 
 at the same time forbid him to go further, and he will rather 
 
382 PMNCIPXES OF THE PENAL CODE. 
 
 accept what you give him without rist or hazard than expose 
 himself to the judgment of the law, by attempting to obtain by 
 his own hand a greater satisfaction. This, then, is an accessory 
 benefit which results from providing a legal redress. Eeprisals 
 are prevented. Covered with the buckler of justice, the trans- 
 gressor, after his offence, finds himself in a state of comparative 
 security, under the protection of the law. 
 
 It is sufficiently evident that the better provision there is for 
 legal redress, the less powerful will be the motive which excites 
 the injured party to procure it for himself. If every pain which 
 a man is exposed to suffer by the conduct of another were in- 
 stantly followed by what he regarded as an equivalent pleasure, 
 the irascible appetite would not exist. This supposition is evi- 
 dently exaggerated beyond anything that can possibly be accom- 
 pUshed. But, exaggerated as it is, it includes truth enough to 
 show that every amelioration in this branch of justice tends to 
 diminish the force of the vindictive passions. 
 
 Hume has observed, in speaking of the barbarous ages of 
 English history, that the great difficulty was, to engage the 
 injured party to receive satisfaction ; and that the laws respect- 
 ing satisfaction aimed as much at restraining resentment as at 
 securing a certain indulgence to it. 
 
 More yet. Establish a legal punishment for an injury, and 
 you give room for generosity ; you create a virtue. To pardon 
 an injury when the law offers a satisfaction, is to gain a kind of 
 superiority over your enemy, by the obligation you impose upon 
 him. Such a pardon cannot be attributed to weakness. The 
 motive is above suspicion. 
 
 3nd. To provide competent Redress for those particular Injttries 
 which attaeJc the Point of Sonour. — Injuries of this kind demand 
 a more particular attention, inasmuch as they have a more marked 
 tendency to provoke the vindictive passions. (See Chap. XIV.) 
 
 In this respect the laws of Erance have long been superior to 
 those of other nations. 
 
 English jurisprudence is eminently defective upon this point. 
 It does not recognise the existence of such a thing as honour. It 
 
PErUCIPIBS OE THE PENAL CODE. 383 
 
 has no means of measuring a corporal insult, except by the dimen- 
 sions of the -wound. It does not suspect that there is any other 
 evil ia the loss of reputation except the loss of money, which 
 may be the consequence of it. It considers money as the remedy 
 fo^ aU evils, the palliative for aU affronts, the equivalent for all 
 insults. He who has not received a pecuniary compensation has 
 received nothing ; he who has been paid in money can ask nothing 
 more. There is no other reparation of any kind. But the gross- 
 ness of barbarous ages ought not to be a reproach to the present 
 generation. These' laws were established before the feeUngs of 
 honour were developed. Honour exists in the tribunal of public 
 opinion, and its decrees are pronounced with a peculiar force. 
 
 StiU, it cannot be doubted that the silence of, the law has a bad 
 effect. An Englishman cannot travel in France without remark- 
 ing that the feeling of honour and the contempt for money descend, 
 so to speak, much further among the inferior classes iu France 
 than in England. This difference is especially remarkable in the 
 army. The sentiment of glory, the pride of disinterestedness, are 
 everywhere to be found among the private soldiers; and they 
 would think the brilliancy of a good action tarnished if they 
 received a reward for it. A sword of honour is the highest 
 recompense. / 
 
 3rd. To show Indulgence to DueUinff. —When offended persons 
 wiU not be content with the satisfaction offered by the laws, it is 
 necessary to show indulgence to dueUing. Where the duel is 
 established, poisoning and assassination are seldom heard of. 
 The comparatively slight evil which results from that practice, is 
 like a premium of insurance, by which a nation guarantees itself 
 against the grave evil of those two crimes. The duel becomes 
 a preservative of politeness and peace. . The fear of being obhged 
 to give or to receive a challenge extinguishes quarrels in the 
 bud. The Greeks and Eomans, we are told, attained a high 
 pitch of glory without having known the duel. So much the 
 worse for them ; their sentiment of glory did not oppose itself 
 either to poison or the dagger. In the political dissensions of 
 Athens one half the citizens plotted the destruction of the other 
 
384 rKiNcrpLES op the penal code. 
 
 half. Observe what passes in England and in Ireland, and com- 
 pare it with the dissensions of Greece and Eome. Clodius and 
 Milo, according to our practice, would have fought a duel; 
 according to the Koman practice, they formed mutual projects of 
 assassination, and he who killed his adversary did but anticipate 
 him. 
 
 In the island of Malta duelling had become a kind of rage, and 
 almost a civil war. One of the grand masters made such severe 
 laws against it, and caused them to be so rigorously executed, 
 'that duelling ceased; but it was only to give place to a crime 
 which united cowardice to cruelty. Assassination, hitherto 
 unknown among the knights, became so common that the duel 
 was presently regretted, and finally it was expressly tolerated in 
 a fixed place, and at certain hours. The result was such as was 
 expected. An honourable career being opened to revenge, clan- 
 destine means resumed a character of infamy. Duels are less 
 common in Italy than in France and England ; poisonings and 
 assassinations much more so. 
 
 In France the laws against duelling were severe ; but meane 
 were found to elude them. 
 
 In England the laws confound duelling and murder; but 
 juries do not confound them ; they acquit, or, what amounts to 
 the same thing, they bring in a verdict of manslaughter. The 
 people are more correctly guided by good sense than the lawyers 
 are by their science. Would it not be better that the remedy 
 should be according to law, instead of being subversive of it ? 
 
 Section II. 
 
 "We come now to indigence; and here we have to consider both 
 the interest of the poor themselves, and that of the community. 
 
 A man in need of the means of subsistence is pushed by the 
 most irresistible motives to commit all the offences by which he 
 can supply his wants. Where this stimulus exists it is useless 
 to combat it by the fear of punishment. There are few punish- 
 
PEINCIPLES OF THE PENAL CODE. 383 
 
 ments which, can be greater than starvation ; and, making allow- 
 ance for uncertainty and distance, there are none which can 
 appear so great. The only sure means of protection against the 
 effects of indigence, consists in famishing necessaries to those 
 who are in need of them. 
 
 In this point of view the indigent may he distributed into four . 
 classes : — 1st, The industrious poor, those who ask only to labour ■ 
 in order to live; 2nd, Idle mendicants, those who had rather I 
 trust to a precarious charity than live by work ; 3rd, Suspected 
 persons, those who have been arrested for some offence, but dis- 
 charged for want of proof, and upon whose character a blot 
 remains, which prevents them from finding employment ; 4th, 
 Convicts who have finished their term of imprisonment, and who 
 have been set at liberty. These different classes ought not to be 
 treated in the sanie way; and in establishments for the benefit 
 of the poor, particular care ought to be taken to separate the 
 suspected from the innocent. One rotten sheep, says the proverb, 
 is enough to infect a whole flock. 
 
 AH which the poor can be made to earn by their labour is 
 not only a profit to the community, it is a gain to themselves. 
 Wot only is life to be sustained, but time is- to be filled up. 
 Humanity requires that occupations should be found for the 
 deaf, the bUnd, the dumb, the maimed, the impotent, the infirm. 
 The wages of idleness are never so sweet as the reward of 
 industry. 
 
 If a man has been put upon trial for an alleged offence of 
 indigence, though he should be acquitted, he ought to be required 
 to give an account of his means of subsistence, at least for the 
 last preceding six months. If they were honest, this inquiry can 
 do him no harm ; if they were not honest, he ought to suffer the 
 consequences. 
 
 "Women labour under particular disadvantages,' as respects 
 facility of finding occupation, especially -those of a condition a 
 little above ordinary labour. Men, having more activity, more 
 liberty, perhaps more dexterity, have possessed themselves even 
 of those employments the best fitted for the female sex, and 
 
 c c 
 
386 PKINCIPLES OP THE PENAL CODE. 
 
 whicli are almost indecent in tie hands of a man. Men sell 
 cliildren's toys, keep fasHonable shops, and make women's shoes, 
 ■women's stays, and women's dresses. Men even perfonn the 
 office ofmidwives. There is a reason to doubt Whether the 
 injustice of custom might not be redressed by the law, and 
 whether women should not be put in possession of these means 
 of subsistence to the exclusion of men. This would be an 
 indirect means of preventing prostitution, by securing to women 
 suitable occupations. 
 
 "With respect to the treatment of the poor, no universal 
 measure can be proposed. Local and national . circumstances 
 must control particular arrangements. In Scotland, with the 
 exception of some large towns, the government does not concern 
 itseK with the care of the poor. In England, the tax on 
 their account amounts to more than three millions sterling.* 
 Still the condition of the poor is better in Scotland than in 
 England. The object is betteri aceoijaplished by custom than by 
 law. In spite of the inconveniences of the English system it 
 cannot be suddenly abandoned ; otherwise half the poor would 
 perish before the necessary habits of benevolence and frugality 
 had taken root. In Scotland the influence of the clergy is 
 very salutary. Having but a moderate salary and no tithes, 
 the ministers are known and respected by their parishioners. In 
 England, the clergy being rich and having tithes, the rector is 
 often in a quarrel with his flock, and knows but little about 
 them. 
 
 In Scotland, Ireland, and France, the poor are moderate in 
 their wants. At Naples the climate saves the expense of fire, of 
 lodging, and almost of dress. In the East Indies dress is hardly 
 necessary except for decency. In Scotland, cleanliness excepted, 
 domestic economy is good in all respects. In Holland it is as 
 good as it can be. In England wants are greater than else- 
 where, and economy is perhaps upon a worse footing than in any 
 country in the world. ■ , 
 
 * It has since mncli increased, and in Bome years has exceeded eight 
 millions. — Trmulator. 
 
PEDSCrPlES OP IHE PEWAI, CODE. SSj 
 
 The surest means is not to -wait for indigence, but to prevent it. 
 The greatest service which can be rendered to the labou;ring classes 
 is the establishment of banks, in which the poor may be induced, 
 by the double attraction of security and profit, to deposit their 
 little savings. 
 
 Seoiioit III. 
 
 We come now to that class of desires for which it is not easy to 
 find any neuter name, — any name' which does not present some 
 accessory idea of blame or praise, but especially of blame. The 
 reason is evident. The ascetics have never been able to satisfy 
 themselves with degrading and criminatiag the desires to which 
 nature has iatrusted the perpetuity of the species. Poetry, on 
 the other hand, has protested against these usurpations, and has 
 delighted in embellishing the images of pleasure and of love, — a 
 laudable object, when it has respected decency and morals. It 
 may be observed, however, that these inclinations naturally have 
 strength enough, and that there is no need of exciting .them by 
 exaggerated and seducing pictures. 
 
 As this desire is satisfied in marriage, not only without preju- 
 dice to society, but advantageously for it,.the first object of the 
 legislator in this respect ought to be to facilitate marriage : that 
 is, to put no obstacle in its way not absolutely necessary. - 
 
 In the same spirit divorce ought to be authorized, . under 
 suitable restrictions. Instead of a marriage broken in fact, 
 and which subsists only in appearance, divorce naturally leads 
 to a real marriage. Separations, permitted in countries where 
 marriages are indissoluble, have the inconvenience either of 
 condemning individuals to the privations of celibacy, or of lead- 
 ing them into illicit connections. 
 
 But if we are willing^ to speak upon this delicate subject in 
 good faith, and with a frankness more niodest in fact than any 
 hypocritical reserve, we shaU acknowledge at once that theire is 
 an age at which man has attained the development of his senses, 
 though his faculties are not yet mature enough for the manage- 
 
 c c 3 
 
•338 PKIlfCIPLES OF THE PENAL CODE. 
 
 ment of affairs or the government of a family. This is true, 
 especially among the upper classes of society. Among the poor, 
 the necessity of labour diverts the desires of love, and retards 
 their development; a more frugal diet, and a simpler kind of 
 life, keep the senses and the imagination longer quiet. Besides, 
 the poor can hardly buy the favours of the other sex, except by 
 the sacrifice of liberty. 
 
 In addition to the young, not yet marriageable in a moral 
 "point of view, how many men there are unable to burden them- 
 selves with the support and the cares of a family. On the one 
 eide, domestics, soldiers, sailors, living in a state of dependence, 
 and often having no fixed dwelling ; on the other, men of a more 
 elevated rank, who are waiting for a fortune or an establishment ; 
 here is a very numerous class cut off from marriage, and reduced 
 to a forced celibacy. 
 
 The first means which presents itself to diminish this evil is to 
 legitimate contracts for a limited time. This means has great 
 inconveniences ; it is a fact, however, that concubinage actually 
 exists in all societies where there is a great disproportion in. 
 fortunes. By prohibiting these arrangements they are not pre- 
 visnted ; they are only rendered criminal, and made disgraceful. 
 Those who dare to avow them proclaim their contempt for the 
 laws and for morals; those who conceal them are exposed to 
 suffer a pain of self-reproach in proportion to their moral sensi- 
 ' bility. 
 
 According to the common way of thinking, the idea of virtue 
 is associated with this contract when its duration is indefinite, 
 and the idea of vice when its duration is limited. Legislators 
 have followed this opinion ; they have forbidden contracts for a 
 year which they allow for life. The same action, criminal in the 
 first case, is innocent in the second. "What is to be thought of 
 this difference ? Can the duration of the engagement change the 
 quality of an act which equally grows out of it, whether the 
 engagement be for a longer or a shorter time ? 
 
 But though marriage for a limited period be innocent in itself, 
 it does not follow that it ought to be so honourable as a permanent 
 
PalNCrPLES OF THE PENAL CODE. 389 
 
 marriage to the woman who contracts it. Indeed, she nevei 
 would ohtain the same respect with a woman married for life. 
 The first idea which would present itself with respect to her 
 would he — " If this woman had been as worthy as others, she 
 would have been able to obtain conditions which others havd 
 obtained. This precarious arrangement is a sign of inferiority, 
 either in rank or merit." 
 
 "What good would result from authorizing this kind of con- 
 tacts ? It would save the law, by which they are now forbidden, 
 from being broken and despised. It would preserve the women, 
 who enter into such contracts from a humiliation which, having 
 degraded them in their own esteem, leads almost always to utter 
 worthlessness. Besides, it would give publicity to the birth of 
 children, and would secure for them a father's care. 
 
 In Germany, what are called left-handed marriages are gene-: 
 rally established. The object is to reconcile domestic happiness 
 with family pride. The woman acquires in this way some of tha 
 privileges of a wife ; but neither she nor her children are entitled 
 to the name or the rank of the husband. These marriages wera 
 forbidden by the Code Frederic. However, the king reserved the' 
 right of granting particular dispensations. 
 
 The idea now proposed is not at aU conformable to common opi^ 
 nions ; let it be observed, however, that it is proposed, not as good, 
 in itself, but as a means of alleviating an existing evil. In coun- 
 tries where manners are so simple and where fortunes are so equal 
 that this expedient is not needed, it would be absurd to introduce it. 
 
 With the same apology, I shall proceed to speak of a yet 
 graver disorder, of an evil which exists particularly in great, 
 cities, and which also springs from inequality of fortune, and 
 from the combination of all those causes which produce celibacy. 
 That evil is prostitution. 
 
 There are countries where the laws tolerate it ; there are others, 
 such as England, where it is strictly prohibited. But though 
 prohibited, it is as common, and as publicly exercised, as can be 
 imagined, because the government does not dare to suppress it, 
 and because the public would not approve such a display of 
 
390 PEINCIPIES OP TSE PENAL CODE. 
 
 authority. Prostitution, thus nominally forbidden, is as common 
 as if there were no law against it, and much more mischievous. 
 
 The infamy of prostitution is not solely the work of the law. 
 There would always he a degree of shame attached to that condi- 
 tion, even though the political sanction . remained neuter. The 
 condition of a courtesan is a condition of dependence and servi- 
 tude ; her resources are precarious, and indigence and famine 
 always threaten to overwhelm her. Her very name is associated 
 with evils distressing to the . imagination, for courtesans are 
 ■unjustly considered as the causes of disorders of which they are 
 only the victims. There is no need to say with what sentiments 
 they are regarded by honest women. The most virtuous may' 
 lament their miseries, but aU agree in despising them. Nobody, 
 in their behalf, attempts defence or excuse. It is natural that 
 they should be crushed by the weight of public opinion. They 
 have never thought of forming a combination, which might 
 counterbalance this public contempt ; and, ' though they wished 
 it, they could not effect it. : If the interest of a common defence 
 should unite them, they would soon be divided by rivalry and 
 want. The person, as weU. as the name of a public woman, is an. 
 object of hatred and disdain to her fellows. ': This is perhaps the 
 only employment publicly despised by the very persons who pub- 
 licly profess it. Self-love, with the mpst singnlax inconsistency, 
 seeks as it were to shake off the recollection of its own misfor-i 
 tunes ; each unhappy creature strives to forget what she is, or to. 
 earn an exception for herself, by severity towards her fellows. 
 
 Xept mistresses are regarded as almost equally infamous with 
 public women. The reason is plain ; they do not yet belong to 
 ithat class, but they are always on the eve of falling into it. StiU, 
 the longer a female has lived with the same man, the further is 
 she removed from a state of degradation,, and the nearer she ap- 
 proaches to the condition of a married woman. The longer the 
 connection has endured, the more difficult it seems to break it, 
 and the greater is its prospect of perpetuity. 
 
 The result of these observations is,, that the remedy, as far as 
 there can be one, is to be found in the evil itself. The more 
 
PKQSrCIFLES OF IH£ PENAL COSE. 891 
 
 this condition is a natural object of contempt, the less it is neces- 
 sary for the law to brand it. It carries along with it a natural 
 punishment ; a punishment already too severe, if we consider all. 
 the reasons for pitying this unhappy class, the victims of social 
 inequality, and always so near to despair. How few of these 
 women have embraced this profession knowingly and by choice 
 How few would go on, if they could quit it; if they could pass 
 out of this circle of disgrace and misery ; if they were not repelled 
 from every business upon which they might attempt to enter!' 
 How many have been precipitated into it by the error of a 
 moment ; by the inexperience of youth ; by the corruption of 
 their parents; by the crime of a seducer; by- an inexorable 
 severity towards a first fault; almost all by destitution and 
 misery ! If opinion is tyrannical and unjust, ought the legislator 
 to exasperate that injustice, ought he to convert himself into an 
 instrument of tyranny?- 
 
 And what is the effect of these laws? They only serve; to in- 
 crease the corruption of which these unhappy women are accused; 
 They drive them into drunkenness in search of a momentary ob- 
 livion of misery ; they render them insensible to the restraints of 
 shame, by exhausting upon misfortune the disgrace which ought 
 to be reserved for real crimes. iEinally, they prevent those pre- 
 cautions which might alleviate the inconveniences of this disorder, 
 were it tolerated by the laws. All these evils, which the laws so 
 lavishly dispenscj are a price which foUy pays to obtain an 
 imaginary good, which after all is not obtained, and never 
 win be. 
 
 The Empress Queen of Hungary undertook to extirpate this 
 evil, and laboured at it with a laudable perseverance worthy of a 
 better cause. "What followed ? Corruption spread itself through 
 public and private life ; the marriage bed was violated ; the seat' 
 of justice was corrupted. Adultery gained all that libertinage 
 lost. Magistrates made traf^e of connivance. Fraud, partiality, 
 oppression, extortion spread themselves through the country ; and 
 the evil it was desired to abolish, driven to conceal itself, became 
 so much the more dangerous. 
 
3.93 PSINCIPLES OF THE PEFAl CODE. 
 
 Among the Greeks, this profession was permitted, and some- 
 times even encouraged; but the parents themselves were not' 
 allowed to traffic in the honour of their daughters. Among the 
 Eomans, during what are called the best times of the republic, 
 the law was silent on this subject. The saying of Cato to a young 
 man, whom he met coming out of a brothel, is a proof of it. Cato 
 was not a person to encourage violations of the law. 
 
 In the metropolis of the Christian world, this vocation is freely' 
 exercised.* This fact was doubtless one reason for the excessive' 
 rigour of the Protestants. 
 
 At Venice, under the republic, the profession of a courtesan 
 was publicly authorized. 
 
 In the capital of Holland, houses of this nature receive a license- 
 from the magistrate. 
 
 Eetif of Brittany published an ingenious work, entitled The 
 Pornograph, in which he proposed that government should estab- 
 lish an institution, subject to certain rules, for the reception and 
 government of public women. 
 
 In some respects, the toleration of this evil in great cities is 
 useful; its prohibition amounts to nothing, and has certain incon- 
 veniences besides. 
 
 The asylum at London for penitent prostitutes is a very excel- 
 lent institution; but those who regard prostitution with abso-' 
 lute rigour, are not very consistent in approving of that charity. 
 If it reforms some, it encourages others. Is not the hospital at 
 Chelsea an encouragement to soldiers, and that at Greenwich to 
 sailors ? 
 
 It would be well to institute an establishment for seUtng an- 
 nuities to these women, to begin at a certain age ; and the^ 
 arrangement should be adapted to the nature of this, sad profes- 
 sion, in which the time of harvest is necessarily short, but of 
 which the profits are sometimes considerable. 
 
 The spirit of economy is formed from small beginnings, and 
 goes .on always increasing. A sum too inconsiderable to offer a 
 
 * This has ceased to be the case, but it remains to be seen whether 
 severity on this point will be an advantage to morals. 
 
PEDfCIPLES OP THE PENAL CODE. 393 
 
 resource as actual capital, might furnish a considerable annuity, 
 at a distant period. 
 
 Upon points of morals, as to whioh there are contested ques- 
 tions, it is well to consult the laws of different nations. It is a 
 kind of mental travelling. In the course of such an exercise, we 
 are able to disengage ourselves from local and national prejudices, 
 by passing in review the usages of other communities. 
 
 CHAPTEK VI. 
 
 To avoid furnishiing Eneovragemmts to Grime. 
 
 To say that government ought not to give rewards to crinte, that 
 it ought not to weaken the moral nor the religious sanction, in 
 cases where they are usefal, is a maxim which seems tod simple 
 to stand in need of proof. Yet it is often forgotten ; and I might 
 give striking examples of it ; but the more obvious they are, the 
 less need there is to point them out. It wiU be better to dwell 
 upon those cases in which this maxim is more covertly violated. 
 
 I. Injuriotts Detention of Peopehit. — If the law suffers a 
 man who unjustly detains the property of another to gain by 
 delay of restitution, the law becomes an accomplice in the wrong. ^ 
 The cases in which the English law is defective in this respect 
 are innumerable. In many cases, a debtor has only to refuse pay- 
 ment till he dies, and ho will escape the debt altogether ; in 
 many others, he can, by delay, escape the payment of interest ; 
 and he can always retain the amount for a longer or shorter 
 period, and thus compel his creditor to submit to a forced loan, 
 at the ordinary rate of interest. 
 
 A few simple regulations would suffice to cut off these temp- ' 
 tations to injustice : — 1st. So far as landed property is liable for 
 debts, the death of either party should make no difference. 2nd. 
 Interest should run from thei moment the obligation commences. 
 3rd. The obligation should con^mence, not from the liquidation 
 of damages, but from the moment of the damage. 4th. Thi: 
 interest should be higher than the ordinary rate. How happens 
 
394 PEINCIPLES OF IHE PENAI CODE. 
 
 it that means so simple have never been adopted ? Those who 
 ask this question do not know the power of habit, of indolence, 
 of indifference to the public good; they are ignorant of the 
 bigotry of lawyers, and of the strength of personal interest, and 
 the professional spirit. 
 
 II.' TJH-LAWFTrL DESTETrcTioir. — When a man insures his pro- 
 perty against some calamity, if the valne insured exceeds the real 
 value, it is his interest, in a certain sense, to bring on the calami- 
 tous event : to set fire to his house, if it is insured against fire ; 
 to sink his vessel, if it is insured against the dangers of the seas. 
 The law, then, which authorizes these contracts, may be con- 
 sidered as furnishing a niotive for the perpetration of these 
 offences. Does it foUow, then, that the law ought not to sanction 
 them ? Ifot at all ; but only that it ought to command or suggest 
 to the assurers precautions best adapted to the prevention of these 
 abuses, i, without being so restrictive as to interfere with the 
 business: such as preliminary inquiries; certificates of the real 
 value of the property insured ; in case of loss, the testimony of 
 some respectable persons to the character and honesty of the 
 party insured ; in doubtful cases, an inspection of the property 
 insured, &c. 
 
 III. Tebason.-;— If the insurance of vessels belonging to a hos- 
 tile .nation is permitted, the state may be exposed to two dangers : 
 — 1st, The commerce of the hostile nation, which i^ one of the 
 sources of its power, is facUitated ; 2nd, The insurer, to protect 
 himself against a loss, may give secret information to the enemy 
 of movements made by the • fleets and cruisers of his own nation. 
 As regards the first of these inconveniences, it is not an evU, 
 unless the enemy cannot obtain insurance elsewhere, or if he can 
 employ his capita with the same profit in some other branch of 
 industry., ■. As to the second inconvenienccj it is absolutely 
 nothing, unless the insurer is led to give infonnation to the enemy 
 which ojiherwise money could, not buy, and unless his facility of 
 giving this information is so great, as to transcend the infamy and. 
 the risk of treason. 
 
 On the other hand, the advantage to the nation that assures 
 
PETfrCfrPLES OP THE PENAl CODE. 395 
 
 is certain. In this kind of traffic, it lias been found that the ba- 
 lance of profit, during a giTen time, is ia favour of the assurers ; ' 
 that is,' taking the losses and gains together, they receive more 
 in premiums than they pay out in indemnities. It is then' 
 a lucrative branch of commerce, and may be considered as a tax 
 levied upon the eneniy. 
 
 IV. PECTJiiATioif. — In making a bargain with architects and 
 contractors, it is c[uite common tc( give thein so much per cent. 
 upon the amount of theii' expenditures. This ni6de of payment, 
 ■which seems natural enough, opens the door to peculation, and 
 topeCulation of the most destructive kind; since, while thepeou- 
 Tatdr makes a little profit, the employer 'inust suffer a great loss. 
 This danger is at its highest point in the case of public works, 
 whei'e nobody has a ' particular interest tb prevent ■w'aste, and 
 where many persons may find an interest iu conniving at it. 
 
 One remedy would be to fix the expense by estimation, and 
 to say to the contractor, " So far you shall have your per centage, 
 but beyond that "you'slall' have'Sbthing. If 'you reduce the 
 expense below the estimate, you shall still have the same profit.' 
 
 V. A3T7SE OF Public TintsTs.-^if a'ptiblic man who has it in 
 his power to Contribute towards war or peace possesses an employ- 
 ment of which the emoluments are more considerable in war than 
 in peace, he has an interest to exert his jiower for the ^prolongation 
 of war. If these emoluments increase in proportion ' to the 
 expense, he has anaddittsiial interest that the war should beeci- 
 dueted wifh the greatest possible' prodigsflity. Exactly the Oppo- 
 site state of things should be aimed at;' ' ■ 
 
 YI. Oefences oe eveet Sind.— "When an individual makes a 
 bet oil the' affirmative side of a futiire event, he has an interest in 
 the happening of that event, proportioned to the amount of the 
 bet. ' If the event' is one of those things prohibited by law,' he 
 then has an interest to commit ah Offence. ' He is even stimulated 
 by a double force, the one paxtaking of tte nature 'of reward, the 
 other of the nature of punishment ; a reward to be received in 
 case the event happens ; a punishment to be experienced in the 
 opposite case. It is as if he had been suborned by the promise of 
 
396 PEINCIPLES OP THE SENAX CODE. 
 
 a sum of money on one side, and as if he had made an engagement 
 under a formal penalty on the other.* 
 
 If, then, aE kinds of bets, without distinction, were acknow- 
 ledged to be TaJid, venality of every kind would receive the 
 sanction of the laws, and liberty would be given to everybody to 
 enlist accomplices for all sorts of offences. On the other side, if 
 aU bets, without restriction, were prohibited, insurances, so useful 
 to commerce, and such a resource against a multitude of cala- 
 mities, would not be lawful ; for insurance is nothing but a sort 
 of bet. 
 
 The middle course seems the best. In all cases in which bets 
 may become instruments of mischief, without answering any 
 useful object, prohibit them absolutely. In cases like insurance, 
 in which they may be useful, admit them ; but leave it to the 
 judge to make necessary exceptions when it shall appear that 
 they have been only a cover to subornation. 
 
 CHAPTEE VII. 
 
 To increase Responsihility in proportion as Temptation increases. 
 
 This precaution relates principally to public employments. Th& 
 more of fortune or honours those who exercise such employments 
 have to lose, the stronger hold we have upon them. Their salary 
 is a means of responsibility. In case of misconduct, the loss of 
 this salary is a punishment which they cannot escape, though 
 they may avoid every other. This means is specially useful in 
 employments which relate to the handling of public money. If 
 you cannot insure the honesty of a cashier in any other way, 
 make his appointments rise something above the interest of the 
 greatest sum which is intrusted to him. This excess of salary is 
 like a premium paid for an insurance against his dishonesty, 
 
 * In the ASmentwes of a Ommea, there is a bet made between the wife 
 of a clergyman and the wife of a minister, that the clergyman would not 
 be on archbishop. It is easy to imagine which was the gainer. 
 
PETUCIPLES OF THE PENAL CODE. 397 
 
 He has more to lose in becoming a rogue than by remaining 
 honest. 
 
 Birth, honours, family connections, religion, may become so 
 many means of responsibility, so many pledges for the good con- 
 duct of individuals. There are cases in which legislators have 
 not chosen to trust bachelors ; they have regarded a wife and 
 children as hostages given to one's country. 
 
 CHAPTER Vlir. 
 
 To diminish the Sensibility to Temptation. 
 In the preceding chapter the question was to discover precau- 
 tions against dishonesty.; in this, the object is to avoid the 
 diminution of probity through the exposure of honest men to 
 the influence of seductive motives too strong for their virtue. 
 
 First, of salaries ; for money, according to the manner of its 
 application, may serve as a poison or an antidote. 
 
 Apart from any regard to the happiness of individuals, the 
 interest of the public service requires that the persons employed 
 in it should be above the pressure of want, especially in all those 
 employments which afford an opportunity of acquisition by inju- 
 rious means. The greatest abuses have been produced in Eussia, 
 throughout the whole administration, by the insufficiency of 
 salaries. When men, under the pressure of want, abuse their 
 power, become greedy extortioners and robbers, the blame ought 
 to be shared between them and the government which has spread 
 this snare for their honesty. Placed between the necessity of 
 living, and the impossibility of living honestly, they are led to 
 Idok upon extortion as a lawful supplement to their pay, tacitly 
 authorized by those who employ them. 
 
 Will it be putting them beyond the reach of need to supply 
 their physical wants ? No. If there is not a certain proporticfn 
 between the dignity with which a man is clothed, and his means 
 of sustaining it, he is in a state of suffering and privation, 
 because he cannot do what is expected of him, nor teep upon a 
 
398 PBINCIPLES OP THE PENAJi COBB. 
 
 level with ttat class with whom he is called to associate. In one 
 word, wants increase with honours, and what is relatively neces- 
 sary varies with conditio^. Place a man in an elevated rank, 
 Tidthout giving him wherewith to maintain himself, and what is 
 the consequence ? His dignity wiU furnish motives to do evU, 
 and his power .will give him the means. 
 
 Charles II. being too much fettered by the economy of Par- 
 liament, sold himseK to Louis XIV., who offered to supply his 
 profiision. The hope of escaping the embaarassments into which 
 he was plunged, drove him, like any other bankrupt, into crimi- 
 nal schemes. This miserable parsimony cost the English two 
 wars, and a peace yet more fatal. It is not easy to teU. what 
 sum would have been sufficient to operate as an antiseptic upon 
 a prince so corrupt ; but this example is enough to show that the 
 civil list of the English king, which appears exorbitant to 
 vulgar calculators, tends in fact to promote the general security. 
 Besides, by that intimate alliance which exists between riches 
 and power, everything which augments the magniflcence of 
 dignity gives it additional force; the royal pomp, .under this 
 point of view, may be compared to thoge architectural ornaments, 
 which serve also to support and strengthen the edifice. 
 
 This great rule of diminishing as much as possible the sen- 
 sibility to temptation, has been remarkably violated in the 
 Catholic church. To impose celibacy upon priests, and at the 
 same time to intrust them with the most delicate functions in 
 the examination of consciences, and the direction of families, is 
 to place them in a violent situation, between the misery of observ- 
 ing a useless law, and the disgrace of violating it. 
 
 "Wlien Gregory YII., in a councU held at Eome, established 
 the rule that married clerks, or those having concubines, should 
 no longer be permitted to say mass, they uttered cries of indig- 
 nation, they accused him of heresy, and according to the historians 
 of those times, they declared — " If he persists, we had rather 
 renounce the priesthood than our wives; let him find angels to 
 govern the churches." — [Hist, of France, by the Abbi MUot, vol. i. 
 Eeign of Henry I.) In our times, the government of France 
 
PKINCIPLES or THE PBNAI, CODE. 399 
 
 deBired to make tlie marriage of priests lawful ; but by this time 
 there were no men to be found among them ; they were all 
 angels. 
 
 CHAPTER IX. 
 
 To strengthen the Impression of Punishment upon the Imagination. 
 
 Ii is the real punishment which does aU the evil; it is the 
 apparent punishment which does aU the good. We ought, then, 
 as much as possible to diminish the former, and to augment the 
 latter. Humanity, in. thi? case, consists in the appearance of 
 cruelty. ■ 
 
 ' Speak to the eyes/ if you wish to move the heart. The pre- 
 cept is as old as Horace, and the experience which dictated it 
 was much older. "■ -Every one feels its force, and strives to take 
 advantage of it; the comedian, the charlatan, the orator, the 
 priest, all know how to turn it to their purpose. Render your 
 punishments exemplary ; give to the attendant ceremonies a sort 
 of mournful pomp. GaU to your aid all the imitative arts ; and 
 let' the exhibitions of these important jirooedures be among the 
 first to strike the. eyes of chUdhoodi 
 
 A' scaffold spread with black, that livery of woe; the officers 
 of justice . in mourning ; the executioner covered by a mask, 
 which; may serve to, increase the terror of the beholders, and at 
 
 -the-, same time to. conceal him from a misplaced indignation ; 
 emblems of his crime plaeed upon the head of the criminal, so 
 that the witnesses of his sufferings may be informed of the offence 
 that has prdducied. them ; — such are a part of the decorations 
 proper, to these tragedies of the law. Let aU the persons in this 
 terrible drama move in a solemn ; procession!; let a grave and 
 religious music prepare the hearts of the auditors for the ini- 
 
 -pPirtant lesson they are going to receive. The judge should not 
 think it beneath him to preside at this- public scene, so that its 
 
 ; sombre dignity may be consecrated by the minister of the law. 
 
 • •jtlnstructionianot to be rejected, even though it come from an 
 enepiy.S i The Secret Tribunal,, the Inquisition, the Star Chamber 
 
400 PBI2JCIPLES OF THE PENAL CODE. 
 
 — I consult them all ; I examine every means ; I consider all 
 that has been done; I prize a diamond though it be picked 
 from a dunghill. Because assassins use a pistol to commit mur- 
 ders, shall I not employ it in my own defence ? 
 
 The emblematic robes of the inq[uisition may be usefully 
 applied to criminal justice. An incendiary clothed in a robe of 
 pictured flames, would offer to every eye the image of his crime, 
 and the indignation of the spectator would be fixed by the image 
 of the offence. 
 
 A system of punishments accompanied by emblems appropriate 
 as far as possible to each offence, would have an additional 
 advantage. It would furnish allusions to poetry, to eloquence, 
 to dramatic authors, to ordinary conversation. The ideas thence 
 derived would be re-echoed, if I may be allowed the expression, 
 by a thousand objects, and would be scattered on all sides. 
 
 The Catholic priests have known how to derive from this 
 source the greatest aids to the efficacy of their religious opinions. 
 I remember having seen at Gravelines a striking exhibition. A 
 priest showed the people a picture, which exhibited a multitude 
 of wretches in the midst of flames, and one of them making signs 
 for a drop of water, by showing his buming.tongue. It was a 
 day of public prayers for souls in purgatory. It is clear that 
 such an exhibition was less fitted to inspire a horror of crime than 
 a horror of poverty. The moral was, that one ought at all events 
 to have the wherewithal to pay for a mass ; for where money ex- 
 piates every sin, the sin of poverty is the greatest, the only one 
 without remedy. 
 
 The methods of punishment which prevail in England form a 
 perfect contrast to everything that can inspire respect. A capital 
 execution has no solemnity ; the pillory is sometimes a scene of 
 buffoonery, sometimes an exhibition of popular cruelty, a game of 
 chance, in which the sufferer is exposed to the caprices of the mul- 
 titude, and the accidents of the moment. The severity of a public 
 whipping depends upon the money given to the executioner; 
 branding in the hand, according to the understanding between the 
 convict and the oflcer, is sometimes inflicted with a cold iron, and 
 
PEINCIPLES OF THE PKS^AL CODE. , 401 
 
 Bometimes with a hot one ; if it be done with a hot iron, the brand- 
 ing is often confined to a slice of bacon interposed between the 
 branding-iron and the criminal's skin. To keep up the farce, while 
 the meat is smoking and burning, the supposed sufferer puts forth 
 loud cries of agony and pain. The spectators who understand th« 
 whole game, only laugh at this parody on the law. 
 
 It may perhaps be said, — for all questions have two sides, — 
 that these real representations, these terrible scenes of penal 
 justice, would spread fright among the people, and would make 
 dangerous iriipressions. I do not think so. If they presented to 
 the dishonest the idea of danger, to the honest they would offer 
 only the idea of security. When eternal punishments are loudly 
 threatened, when the flames of heU are frightfully decreed for 
 kinds of offences indefinite and undeflnable, the imagination may 
 be so excited that madness is the consequence. "We suppose, on 
 the contrary, a manifest offence, a proved offence, an offence of 
 which everybody can avoid the commission, so that the terror of 
 punishment cannot be excited to a dangerous degree. However,, 
 we must avoid producing false and odious associations. 
 . In the first edition of the Code Theresa, the portrait of the 
 empress was surrounded with medallions representing gibbets,, 
 wheels, and other instruments of torture and punishment. 
 What a blunder to offer the image of the sovereign with these- 
 hideous emblems, like the head of Medusa shaking her serpents 1 
 This scandalous frontispiece was suppressed; but a print was 
 allowed to remain which represented all the instruments of tor- 
 ture — a picture of bad omen, which no one could look at without 
 saying to hiniself, "Even though innocent, to these evils am I 
 exposed !" But if an abridgment of the penal code were accom^. 
 panied by pictures representing the characteristic punishments 
 attached to each crime, it would be an imposing commentary, 
 a sensible and speaking image of the law. The reader would 
 say, •" If I am guilty, this must I suffer !" In legislation, a 
 single shade sometimes distinguishes good from evil. ■ 
 
 S 9 
 
403 PEINCIPLES OP THE PElfAI. CODE. 
 
 CHAPTEE X. 
 
 To facilitate Knowledge of the Fact of an Offence. 
 
 In penal cases there are two points as to wHcli the judge must 
 be certain before he can perform his office: the fact of an offence, 
 and the person of the offender. These two points being known, 
 his information is complete. In different cases there are different 
 proportions of obscurity as to these two points ; sometimes the 
 first is most obscure, sometimes the second. Let us consider, in 
 the first place, the fact of an offence, and the means which may 
 facilitate its discovery. 
 
 ' I .Zb require Proofs of Title to he in Writing. — It is only by 
 writing that testimony can be rendered permanent and authentic. 
 Verbal transactions, unless they are of the most simple kind, will 
 be subject to innumerable disputes. Mahomet himself has recom- 
 mended to his followers to observe this precaution. It is almost 
 the onlypassage of the Koran which has a glimmer of common sense, 
 
 II. To enrol ttpon the face of Title Deeds the names of Witnesses. 
 — It is one thing to require witnesses to the execution of a deed ; 
 and another thing to require that their presence be noticed, 
 attested, and registered upon the face of the deed. A third step 
 is to add the circumstances which wiU enable the witnesses to be 
 found if they are needed. 
 
 In the attestation of deeds, it will be useful to observe the 
 following precautions: — 1st. To prefer a large number of wit- 
 nesses to a small number; this will diminish the danger of 
 falsehood, and give a chance of finding some of them, if they 
 are needed. 2nd. To prefer married persons to bachelors ; heads 
 of families to servants ; persons who have a public character to 
 individuals less distinguished; young or middle-aged men to 
 the old and infirm ; persons who are known to strangers. 3rd. 
 When the deed is composed of many sheets, each sheet ought to 
 be signed by the witnesses; if there are corrections and ierasures, 
 a separate list ought to be made of them, which list ought to be 
 attested; the lines ought to be counted, and their number on 
 
PBINCIPIES or THE PENAl COBE. 403 
 
 eacli page marked. 4th. Let eaoh. witness add to Hs name in 
 full his description, place of abode, age, &o. 5th. Let ±he time 
 and place at which the deed is executed be minutely specified ; 
 the time, not only by the day, month, and year, but also by the 
 hour ; the place, by the district, parish, even the house, and the 
 name of the present occupant. This circumstance is an excellent 
 preventive against forgery. A man would hardly dare venture 
 upon such an enterprise when he must be sure of so many details 
 before fabricating a false date ; and if he dared attempt it he 
 would be much more easily discovered. 6th. AU numbers ought 
 to be written out in letters, especially dates and sums, except in 
 matters of account, where it is sufficient to write the sum total 
 in letters, and except also when the same date or sum often recur 
 in the same deed. The reason of this precaution is, that figures, 
 unless they are written very carefully, are apt to be taken one 
 for another; and besides, it is easy to alter them, and the- least 
 alteration may have very considerable influence. A sum of hun- 
 dreds is easily changed into a sum of thousands. 7th.- The for- 
 malities to be observed in the execution of a deed ought to be 
 printed upon, the margin of the sheet of papBr or parchment upon 
 which it is written. 
 
 Should these formalities be left to the discretion of individuals/' 
 as a means of security required by prudence, or stould they be 
 regulated by law ? Some of thdm should be required, and others 
 should be optional; a latitude should be left to the judge in 
 favour of those oases in which it is not possible to fulfil them. 
 It may happen that a deed is to be made in a place where the 
 prescribed kitid of piaper is not to be had, where a safficient 
 number of witnesses cannot be found, -&c. In-such- eases, the- 
 deed may be declared valid provisionally, and until the nequisite 
 formalities can be fulfilled. - * 
 
 A greater latitude ought to be allowed in testamefitS than'ia 
 deeds between the living.' Death does not wait; for an, attorney,' 
 nor for vyitnesses; and making a wiU is a business which men: 
 are apt to procrastinate to a time when they have neither leisure 
 nor capacity for precision and exactness. On the other' hand 
 
 D D 2 
 
404 PEINCIPLES OF THE PENAL CODE. 
 
 precautions are most requisite in this sort of deeds, because ttey 
 are most exposed to forgery. In case of a deed between the 
 living, the party to whom it is falsely ascribed may still be alive 
 and able to contradict it ; in case of a testament, there is no such 
 chance. 
 
 Many details are necessary to explain the forms which ought 
 to be established, and the exceptions which should be made. 
 I shall only observe that I do not know of any formality, even 
 the most simple, the omission of which ought to render a will 
 absolutely invalid. 
 
 If instructions upon this subject were published by the govern- 
 ment, even without being made necessary, everybody would be 
 inclined to observe them, since, in case of deeds executed in good 
 faith, every one desires to insure himself aU possible securities. 
 The omission of these formalities would then become a vehement 
 suspicion of fraud, unless it could be clearly seen that it ought 
 to be attributed either to ignorance, or to circumstances which 
 rendered their observance impossible. 
 
 III. To establish Registrations for the Authentication of Titles. 
 — "Why ought -deeds to be registered? "What deeds ought to be 
 registered ? Ought the registry to be secret or public ? Ought 
 the registration to be optional, or should its omission be visited 
 by a penalty ? 
 
 Eegisters are useful: — 1st, Against acts of forgery; 2nd,- 
 Against acts of falsification ; 3rd, Against accidents, as the loss 
 or destruction of originals ; 4th, Against a double alienation of 
 the same property to different purchasers. 
 
 For the first and last of these objects, a simple abstract might 
 BufB.ce; for the second, an exact copy would be needed; for the 
 third, an extract would be sufficient, but an entire copy would 
 be much better. 
 
 Against forgery, the registration would only be useful by 
 being obligatory ; the deed being null when not recorded, with ' 
 a latitude for accidental cases. This advantage would result, 
 that after the expiration of the time allowed for registration, the ' 
 forgery of a deed which, according to its date, ought to be 
 
PEINCIPLES OF THE PENAL CODE. 405 
 
 registered, •would be of no avail. It amounts to limiting to 
 a short period the time within which a fraud of this nature can 
 be committed, with a possibility of success ; and at a period so 
 near that of the supposed act, proofs of the fraud could be easily- 
 obtained. 
 
 So, too, when the registration is intended to prevent double 
 alienations, it should be obligatory, under pain of nullity. "With- 
 out a clause to that effect, the registration would hardly take 
 place, since neither party would have an interest in it. In fact, 
 the seller has an interest the other way. If he is honest, he may 
 have a repugnance to its being known that he has sold or 
 encumbered his property; if he is a rogue, he may desire the 
 opportunity of selling it twice over. 
 
 Testaments are the kind of deeds most apt to be forged. The 
 surest protection against this fraud is to require them, Tinder 
 pain of nullity, to be registered during the life of the testator. 
 It may be objected that this would put a dying man at the 
 mercy of those who surround him in his last moments, since he 
 would no longer have the power to reward or to punish ; but 
 this objection might be obviated by giving him the right to 
 -dispose of a tenth part of his property by a codicil. 
 What deeds ought to be registered ? 
 
 All in which third persons are interested, and which are 
 important enough to justify this precaution. 
 
 In what cases should the registry be secret or public ? 
 Deeds between the living in which third persons are interested, 
 hjrpothecations, and marriage settlements, ought to be public, 
 Testaments ought to be inviolably secret during the life of the 
 testator. Deeds, such as indentures of apprenticeship and 
 marriage settlements, which do not affect lands, might be kept 
 secret, with the reserve of communicating them to such persons 
 as have a special title to examine their provisions. 
 
 The registry office might be divided into departments, secret 
 and public, optional and obligatory. Optional registrations 
 wotild be frequent if the price were moderate. It is an act 
 of prudence to preserve copies against accidents, and where 
 
406 PEINCrPlES OF THE PENAL CODE. 
 
 could copies be more securely lodged than in an office of this 
 sort? 
 
 The necessity of registering mortgages of landed property 
 would be a kind of restraint upon prodigality. A man coijld 
 not borrow money upon his estate, to be spent upon mere 
 pleasures, without some degree of shame. This consideration, 
 80 favourable to the measure, has been regarded as an objection 
 against it, and, in fact, has prevented its adoption. 
 
 The law of many countries has adopted this system of regis- 
 tration to a greater or less extent. The French law seems to 
 have hit upon a medium tolerably just. 
 
 In England the law varies. In the counties of Middlesex and 
 York there are offices of registry, established in the reign of 
 Queen Anne, of which the principal object is to prevent double 
 alienations, and the good effects are such that the value of lands 
 is higher in these countries than elsewhere. How does it happen 
 that after so many years of an experience so decisive, this law has 
 not yet been made general ? 
 
 Ireland enjoys this benefit, but the registry is left to the free 
 choice of individuals. It has been established in Scotland. 
 There, testaments must be registered before the death of the tes- 
 tator. In the county of Middlesex, the registry is not obligatory 
 till after the death of the testator. 
 
 IV. Method of presenting Falsifications. — There is an expedient 
 which, in some respects, may take the place of registration. A 
 particular sort of paper or parchment being required for the deed 
 in question) those who sell it by retail may be forbidden to fur- 
 nish it without endorsing upon it the day and the year of the 
 sale, and the names of the seller and purchaser. The distribution 
 of this paper might be limited to a certain number of persons, of 
 whom a list diould be kept. Their books would be true registers, 
 and after their death might be deposited in an office. This pre- 
 caution would prevent the forgery of deeds of any kind, pretend- 
 ing to be of a distant date. 
 
 It would be an additional restraint, if the paper were required 
 to be of the same date with the deed. The date of the paper 
 
PKINCIPIES OF THE PENAI CODE. 407 
 
 might be marked in its tissue, in the same ■way as the name of 
 the maker. In that case, a paper-maker must he a party to 
 every forgery. 
 
 V. Institutions for the Registry of Events on which Titles depend. 
 — There is no need of dwelling upon the plain necessity of pre- 
 serving evidence of births and interments. A prohibition to inter 
 the dead without a previous inspection by a police officer, is a 
 general precaution against assassinations. It is singular that in 
 England, marriages, instead of being recorded, were for so long 
 a time abandoned to the mere notoriety of a transient ceremony. 
 The only reason that can be given is the simplicity of this contract, 
 which is the same for all, except in particular dispositions relative 
 to fortune. Fortunately, under the reign of "William III., mar- 
 riageBjr which serve as the foundation for so many titles, presented 
 themselves as fit objects for a tax. It thus became necessary to 
 have them registered. The tax has been suppressed, but the 
 register remains. But even now the security of rights which 
 depend upon these events is Hot so certain nor so universal as it 
 ought to be. There is but one copy of the registration. The 
 register of each parish ought to be transcribed in a more general 
 office. In the Marriage Act of George II., either through intoler- 
 ance or negligence, the advantage of registration was denied to 
 Quakers and Jews.* 
 
 VI. To put People on their Cfuard against Offences, 
 1st. Against poisoning. 
 
 By giving instructions respecting the diflferent substances which 
 operate as poisons, with the means of detecting them, and the 
 methods of preventing their effects. If these instructions were 
 spread among the multitude without discrimination, they might 
 do more harm than good. This is one of those peculiar cases in 
 which knowledge is more dangerous than useful. The means of 
 employing poisons are surer than the means of counteracting them. 
 The middle course would be to limit the circulation of these 
 instructions to the class of persons who could make a good use of 
 
 * A new Begistiy Act has lately been enacted by the British PaP« 
 Uament, which puts this matter on a better footing. — Tra/ntlator. 
 
408 EEINCrPIES OE THE PENAL CODE. 
 
 ttem, and whose eondition, character, and education furnished a 
 guarantee against the danger of abuse,; such are the parish clergy 
 and the practitioners of medicine. "With this view, the instruc- 
 tions ought to be in the Latin language, which these persons are 
 supposed, to understand. 
 
 But as regards those poisons which present themselyes without 
 being sought for, and which ignorance may administer innocently, 
 the knowledge of them should be rendered as familiar as possible. • 
 There must be a strange depravity in the character of a people, 
 if hemlock, which is so easily mistaken for parsley, and copper, 
 which is so apt to be dissolved in vessels of which the tinning is 
 worn, do not oftener operate as poisons by accident than by 
 design. In these cases, however dangerous knowledge may be, 
 "there is more to hope than to fear from it. 
 
 2nd. Against false weights and measures. 
 
 By famishing instructions relative to false weights and mea- 
 sures, and the methods of deception in the employment of true 
 ones, such as scales with unequal arms, measures with double 
 bottoms, &c. Such knowledge cannot be too widely diffused. 
 Every shop ought to have a copy of these instructions pasted up 
 in plain sight, as a pledge of fair dealing. 
 
 3rd. Against frauds in money. 
 
 By instructions to teach people to distinguish good money from 
 bad. If a particular kind of false coin makes its appearance, the 
 government ought to give notice of it in the most public manner. 
 At Vienna, the officers of the mint always give notice of counter- 
 feit coins the moment they appear ; but the Austrian coinage is 
 upon so good a footing that such attempts are rare. 
 
 4thi Against impostures of mendicants. 
 
 Some counterfeit diseases, although they are in perfect health ; 
 others inflict upon themselves some slight wound to aid them in 
 counterfeiting the appearance of the most disgusting maladies ^ 
 others get up false stories of fires and shipwrecks by which they 
 jretend to have suffered ; others borrow or steal children, whom 
 they make the instruments of their trade. But these instructions 
 ought to be apoompanied by a preface, lest the knowledge of so 
 
PBINCIPIES OF THE PEIfAL CODE. 409 
 
 many impostures should harden the heart, and make it indiffer- 
 ent to real miseries. In a country with a well-regulated police, 
 an individual who displays the aspect of misery ought never to 
 he neglected, nor left to himself; it should he the duty of the 
 first person who meets him to consign him to the hands of puhlic 
 charity. Instructions of this kind would prove more amusing to 
 the people than tracts of religious controversy. 
 . 5th. Against theft, pilfering, methods of ohtaining hy false 
 pretences. 
 
 By furnishing instructions which explain all the arts employed 
 hy thieves and swindlers. There are many hooks upon this suh- 
 ject, the materials of which haveheen supplied hy criminals who 
 had repented, or who hoped to purchase pardon hy their confes- 
 sions. These compilations are miserahle affairs ; but useful ex- 
 tracts might he made from them. One of the best is the Dis- 
 coveries and Revelations of Poulter, otherwise Baxter, of which 
 sixteen editions were published in twenty-six years, — a fact 
 •which shows how wide a circulation might be obtained for an 
 authentic book of this kind, authorised by the government. The 
 tone which might be given to such a work would make it an 
 excellent moral lesson, and at the same time a book of amuse- 
 ment. 
 
 6th. Against religious impostures. 
 
 By famishing instructions respecting offences committed by 
 the aid of a superstitious belief in the power and malice of spi- 
 ritual agents. These offences are too numerous ; but they are 
 trifles in comparison with the legal persecutions which have 
 derived their origin from the same source. There is hardly 
 a nation in Christendom which cannot reproach itself with a 
 multitude of bloody tragedies occasioned by the belief in witch- 
 craft. Histories of offences committed by these means would 
 furnish a very instructive subject for homilies which might be 
 read in the churches; but as to the errors of governments and 
 magistrates, it were needless to give to them a sad publicity. 
 The opinions of so many respectable and honest judges who have 
 been so miserably duped by superstitions of this sort would be 
 
410 PEINCIPLES OF THE PENAI COBE. 
 
 more likely to confirm the people in error than to disabuse them 
 of it. It is much to be desired that the witch of Endor could be 
 got rid of. I do not know what evils this Jewish Canidia may 
 have caused in Palestine, but she has produced frightful ones 
 throughout Europe. The wisest theologians find great objections 
 against that history, at least when taken in its literal and vulgar 
 sense. 
 
 The English law has the honour of being the first expressly to 
 reject from its penal code the pretended crime of witchcraft. In 
 the Code Theresa, though compiled in 1773, that pretended offence 
 makes a considerable figure. 
 
 VII. To publish Tahles of Prices as a Cheek to Mercantile 
 Hxtortion. — ^If the exaction of an exorbitant price cannot pro- 
 perly be treated as an offence, and be subjected to a punishment, 
 it may at least be regarded as an evil which it wUl be useful to 
 put a stop to, if it can be done without producing a greater evil. 
 As direct punishments are not admissible for this object, indirect 
 means must be eniployed. Fortunately this is a kind of offence 
 
 , of which the evil, instead of being augmented, is diminished by 
 increasing the number of offenders ; and it therefore should be 
 the object of the law to increase the number as much as possible. 
 Such an article is sold very dear ; the profit made from it is exor- 
 bitant ; spread abroad this information, and sellers will flock in 
 from aU sides, and, by the mere effect of competition, the price 
 wiU fall. 
 
 Usury may be placed imder the head of mercantile extortion. 
 To lend money, is selling a sum of money in hand for a sum of 
 money to be paid at a future day, at a time determined or unde- 
 termined, depending or not upon certain events, and reimbursable 
 all at once, or in parts, &c. By forbidding usury, and making 
 the transaction unlawful, and so increasing the risk, of course 
 you augment the price. 
 
 VIII. Publication of the Fees of Office. — Almost always fees 
 are allowed in the departments of government for services ren- 
 dered ; these fees are a part of the salaries of the ofB.cers. As an 
 artisan sells his labour as dear as he can, so does a public officer. 
 
PEnrcrPLES op the penal code. 411 
 
 Competition, and the facility of going to another market, restrain 
 this disposition within its just limits as respects ordinary labour; 
 but there is no competition ia a public office; the right of seUing 
 this particular kiad of labour becomes a monopoly in the hands 
 of the officers. Leave the price to the discretion of the seller, 
 and it will presently have no other limits except those which are 
 prescribed by the wants of the purchaser. Fees of office ought 
 to be strictly limited by law; otherwise, the extortions which 
 will take place ought to be imputed less to the rapacity of the 
 officers than to the negligence of the legislator. 
 
 IX. Publication of Accounts in which the Nation is interested. — 
 "When accounts are rendered at a fixed time, before a limited 
 number of auditors, chosen perhaps by the influence of the 
 accountant himself, and where nobody is called iu specially to 
 examine them, the greatest errors may pass without being seen, 
 or without beiag corrected. But when accounts are published, 
 neither witnesses, commentators, nor judges wUl be wanting. 
 
 Each item is examined. "Was this article necessary ? "Was it 
 really needed, or was it only a pretext for expense? Is the 
 ; public served as cheaply as individuals ? Has not some con- 
 tractor obtained an advantage at the expense of the state ? Has 
 no secret advantage been granted to a favourite ? Has nothing 
 been given under false pretences ? Have not manoeuvres been 
 used to prevent competition ? Is not something kept back in the 
 accounts? There are a hundred other questions of a similar 
 kind, which never can be answered in a . satisfactory manner, 
 except by publication of the accounts. In a particular committee 
 some may want integrity, and others may want knowledge ;, a 
 mind slow in its operations passes over what it does not under- 
 stand, for fear of betraying its want of quickness ; a lively under- 
 standing vnU- not. subject itself to the study of details ; each 
 leaves to the rest the fatigues of examination. But all the 
 deficiencies: of a small body will be made up by the body of the 
 people. In that heterogeneous and discordant mass, the worst 
 principles have their use as well as the best; envy, hatred, 
 malice, perform the task of public spirit; and these very pas- 
 
412 PMNCIPLES OF THE PENAL CODE. 
 
 sions, by reason of their activity and their perseverance, are the 
 better adapted to scrutinize all parties, and to make the strictest 
 and most exact examination. 
 
 There seem to be but two grounds of exception, one relating to 
 the expense of publication, the other in regard to services of a 
 kind which ought to remain secret. It would be useless to 
 publish the accounts of a little parish, because the originals 
 would be accessible to all thofee who wished to examine them ; 
 and if accounts of sums employed in secret service were published, 
 you would no longer be able to obtain information of the designs 
 of your eneniies. 
 
 X. Uniformity of Weights and Measures. — Weights indicate 
 the quantity of matter, measures the quantity of space. Their 
 uses are : — 1st, The satisfaction of individuals ; 2nd, The termina- 
 tion of disputes ; 3rd, The prevention of frauds. 
 
 To establish uniformity in this respect throughout a single 
 state, has been the object of many sovereigns. To find a common 
 and universal measure for aE. nations, .has been an object of re- 
 search for many philosophers, and at length the French govern- 
 ment has taken it in hand. This is a service truly honourable ; 
 for what is there rarer or greater, than to see a government 
 labouring at one of the foundations essential to the union of the 
 human race ! 
 
 A uniformity of weights and measures, under the same govern- 
 ment, and among a people who have, in other respects, the same 
 language, is a thing, the utility of which may be made apparent 
 without any great depth of reasoning, A measure of which one 
 does not know the value, is the same as no measure. If the 
 measures of two cities differ either in name or quantity, the com- 
 ■ merce of individuals is exposed to great mistakes or great diffi- 
 'culties. In this respect, these cities are strangers to each other. 
 The nominal price of two articles may be the same, but if the 
 measures are different the real prices are different. Constant 
 attention is necessary, and distrust interrupts the course of busi- 
 ness ; errors slip into transactions where good faith was intended, 
 and fraud conceals itself under deceptive names. 
 
PEINOIPLES OP THE PENAI, CODE. 413 
 
 There are two means of introducing uniiformity. The first is, 
 to establish standard measures by public authority, to distribute 
 them throughout the country, and to forbid the use of any other ,- 
 the second is, to establish such standards, and to leave the care of 
 their adoption to the public convenience. I do not know any 
 example in which the first of these methods has been followed ; 
 the second was practised with success by the archduke Leopold 
 in Tuscany, 
 
 In England, there are not less than thirty Acts of Parliament 
 upon this subject, and a thousand more maybe made in the same 
 style, without success. 1st. The clauses which enforce confor- 
 mity to the standard are Hot sufficiently binding. 2nd. There 
 is no provision for the manufacture and distribution of standards ; 
 a few have been scattered here and there, and the thing has been 
 left to chance. 
 
 A beginning should be made by furnishing each community 
 with a legal standard; a penalty might be imposed upon every 
 workman who made weights and measures not conformed to 
 that standard ; and finally, all contracts according to other weights 
 and measures might be declared null and void. But this last 
 means would not be necessary ; the two first would sufSce. 
 
 Between different nations, the want of uniformity in this 
 respect cannot produce so many mistakes, because the mere dif- 
 ference of language puts everyone upon, his guard. However, 
 there results from it much embarrassment to commerce; and 
 fraud, favoured by mystery, often prevails over the ignorance of 
 purchasers. 
 
 , An inconvenience, less extensive, but not less important, is 
 felt in medicine. If weights are not_ exactly the same, especially 
 for substances where the sniallest quantities are essential, the 
 pharmacopoeia of one country can hardly serve for another, and 
 may expose practitioners to fatal errors. This is a considerable 
 obstacle to the free communication of science; and the same in- 
 convenience is felt in, .other arts, of which the success.depende 
 upon delicate proportions. 
 
 XI. JEstabUshment. of Standards, of QmUty.-^It would bo 
 
414 PEINCIPIES OF THE PENAL CODE. 
 
 necessary to go very much, into details, to mention all that govern- 
 ments might do for the establishment of the fittest criterions of 
 the quality and value of a multitude of objects, which are sus- 
 ceptible of different tests. The touch-stone is an imperfect test 
 of the quality and value of mixed metallic compositions of gold 
 and silver. The hydrometer is a certain test, since identity of 
 quality and identity of specific gravity always go together. 
 
 Ealsifications, the most important to be known, are those which 
 may prove injurious to health, such as the mixture of chalk and 
 burnt bones with fiour, lead employed to remove the acidit}' of 
 wine, or arsenic to refine it. Chemistry affords the means of 
 discovering all these adulterations; but much knowledge is 
 needed for its application. ■ 
 
 The interference of governments with these matters should be 
 limited to three points : — 1st, To encourage the discovery of 
 means of proof, in cases where they are wanting ; 2nd, Spreading 
 knowledge of these discoveries among the people ; 3rd, Defining 
 the duties of those officers of government to whom functions of 
 this sort are intrusted. 
 
 XII, To estahlish Brands or Mmrhs attesting the quantity or 
 quality of Articles which ought to conform to a certain Standard. 
 — These marks are declarations or certificates under an abridged 
 form. In these documents, five points are to be considered : — 
 Jst, Their object ; 3nd, The person whose attestation they bear ; 
 3rd, The extent and the details of the information they contain ; 
 4th, The distinctness and intelligibility of the mark; 5th, Its per- 
 manence and indestructibility. 
 
 The usefulness of these authentic attestations cannot be doubted. 
 They are successfully employed for the following purposes : — 
 
 ' 1st. To give certainty to the rights of property. "We may 
 trust to the prudence of individuals to make use of this precau- 
 tion in what concerns themselves ; but, as far as relates to public 
 property, or to objects in deposit, it should be made an affair of 
 the law. Thus, in England, everything that appertains to the 
 royal marine bears a particular mark, which the mercantile 
 marine is not allowed to use.. In the royal arsenals the imjprint 
 
PEINCrPIES OP THE PENAT CODE. 415 
 
 of an arro-w is made use of, and a peculiar thread is twisted into 
 the tissue of the cordage, which individuals are not permitted to 
 employ. 
 
 2nd. To assure the q[uantity and quality of mercantile articles 
 for the benefit of purchasers. Thus, by the EngUsh statutes, 
 marks are affixed to a great number of objects, as leather, bread, 
 tin, silver ware, woollen clothes, stocMngs, and many other 
 articles of trade. 
 
 3rd. To assure the payment of taxes. If the article subject to 
 the tax has not the mark in question, it is a proof that the tax 
 has not beein paid. Examples are innumerable. 
 
 4th. To insure obedience to laws which prohibit importation. 
 
 CHAPTEE XL 
 
 To prevent Offences ly giving to many Persons an Interest to 
 prevent them. 
 
 I SHAxi cite a particular example, which may be referred to the 
 preceding head as well as to this ; for an offence is prevented 
 either by increasing the difficulty of concealing it, or by giving 
 to many persons an immediate interest to prevent it. 
 
 The carriage of the mails in England had always been deficient 
 in expedition and punctuality. The postmen loitered by the way, 
 'as their own convenience or profit required ; the innkeepers never 
 hastened their departure. AH these delays were so many little 
 offences, — that is, violations of established rules. "WTiat remedy 
 could be applied ? "Watchfulness soon grew weary ; , penalties 
 were gradually relaxed ; informations, always odious or embar- 
 rassing, became rare ; and abuses, suspended for a moment, pre- 
 sently regained their ordinary course, 
 
 Avery simple means .was hit upon, which required neither 
 law, nor penalty, nor information, and which was all the better 
 for not requiring them. 
 
 This means consisted in combining two estabUshments, which 
 hitherto had been separate, the transportation of the mails and 
 
416 PBHTCIPLES OF THE PENAL CODE. 
 
 the carriage of travellers. The success of this project was com- 
 plete ; the celerity of the post was doubled ; and travellers were 
 better served. This is worth the trouble of being analyzed. 
 
 The travellers who accompany the postman are so many inspec- 
 tors of his conduct ; he cannot escape their observation ; while 
 he is excited by their praises, and by the reward he expects from 
 them, he cannot be ignorant that if he loses time, these travellers 
 will have good reason to complain, and that they can inform 
 against him without odium, or the reputation of doing it for pay. 
 Such are the advantages of this little combination ! Witnesses to 
 the least fault ; the motive of reward substituted for that of punish- 
 ment ; economy of informations and prosecutions, the occasions 
 of punishment rendered rare, and the two services, by their union, 
 made more convenient, more prompt, and more economical ! 
 
 I oifer this happy idea of Mr. Palmer as a study in legislation. 
 It is necessary to meditate upon what has been successfully 
 accomplished in one kind, to learn how to conquer difficulties in 
 another. ' By investigating the cause of success in particular 
 cases, we may rise to general rules. 
 
 CHAPTER XII. 
 
 To faeilitate the Means of redognising and finding Individuals. 
 
 The greater part of offences are committed only by reason of the 
 great hope which the offenders entertain of remaining unknown. 
 Everything which augments the facility of recognising men, and 
 of finding them, adds to general security. 
 
 This is one of the reasons why very little is to be apprehended 
 on the part of those who have a fixed abode, property, and a 
 family. The danger is from those who, by their indigence, or 
 their independence of all ties, may easily conceal their proceedings 
 from the eye of justice. 
 
 Eegisters of the population, in which are inscribed the dwell- 
 ing,' age, sex, profession, and tlie marriage or celibacy of indi- 
 viduals, are the first materials of a good police. 
 
PEINCIPLES OP THE PENAL CODE. 417 
 
 The magistrate ought to be authorised to demand an account 
 from every suspected person of his means of livelihood, and to 
 send to a place of security those who cannot prove either industry 
 or income. 
 
 ■ There are two things to be observed on this subject. The 
 rules of police ought not to be so minute and particular as to 
 expose the citizens frequently to break them, nor should they be 
 rendered vexatious by imposing numerous and troublesome rcr 
 straints. Precautions, necessary at certain times of danger oi 
 trouble, ought not to be prolonged into a season of quiet, as the 
 regimen proper for sickness ought not to be kept up after the 
 health is restored. The second observation is, to avoid shocking 
 the national spirit. One nation could not endure the police of 
 another. In the capital of China every one is obliged to wear 
 his name upon his dress. This measure wiU appear useful, in- 
 different, or tyrannical, according to the turn of national 
 prejudices. 
 
 Characteristic dresses have a relation to this end. Those which 
 distinguish the sexes are a means of police as mild as it is salu- 
 tary. Those which serve to distinguish soldiers, sailors, and the 
 -clergy, have more than one object, but their chief end is subor- 
 dination. In the English universities the pupils have a particular 
 dress, which is no restraint, except when they wish to transgress 
 some rule. In charity-schools the pupils are made to wear a 
 uniform, and even a numbered ticket. 
 
 It is inconvenient that the surnames of individuals should be 
 upon so irregular a footing. These distinctions, invented in the 
 infancy of societies, to answer the wants of a hamlet, fulfil their 
 object but imperfectly in a great nation. Many inconveniences 
 arise from this confusion of names. The greatest of all is, that 
 the testimony which depends upon a name is very vague ; sus- 
 picion is cast upon a multitude of persons ; and the danger of 
 innocence may become the protection of guilt. 
 
 A new system of nomenclature might easily be devised, so that 
 each individual in a nation should have a peculiar name, borne 
 by no one but himself. In the actual state of things, the em- 
 
418 PEINCIPIES OF THE PENAI CODE. 
 
 bairassments of a change would, perhaps, exceed its advantages ; 
 but it might he ■weU to prevent this disorder ia a growing 
 colony. 
 
 It is a common usage among English sailors to trace their 
 family and baptismal name upon the wrist, in distinct and indelihle 
 characters. It is done that they may be recognised in case of 
 shipwreck. If it were possible for such a practice to become 
 universal, it would furnish a new aid to morals, a new power to 
 the laws, an almost infallible precaution against a multitude of 
 offences, especially aU kinds of fraud, for the success of which a 
 certain degree of confidence is necessary. "Who are you ? "Who 
 3m I dealing with ? There would be no room for prevarication in 
 the answer to this important question. 
 
 This means, by reason of its very energy, would favour personal 
 liberty, by permitting the rigours of procedure to be relaxed. 
 Imprisonment, where it has no object except securing the person, 
 would be less often necessary, if men were thus held as it were 
 by an invisible chain. 
 
 Doubtless there are plausible objections. In the course of the 
 Trench revolution, how many persons owed their safety to a 
 disguise which an imprint of this nature would have rendered 
 impossible ! Public opinion in its actual state opposes an insur- 
 mountable obstacle to this institution ; but patience and address 
 may change opinion ; especially were a beginning made by some 
 great examples. If it were the custom to print marks upon the 
 foreheads of the great, an idea of power and of honour would be 
 associated with them. The women in the islands of the South 
 ■Sea submit to a painful operation in printing certain figures upon 
 the skin, to which an idea of beauty is attached. The imprint is 
 made by a multitude of punctures which penetrate to the quick, 
 and into which coloured powders are rubbed. 
 
PEIlfCrPLES OF THE PENAL CODE. 419 
 
 CHAPTEE XIII. 
 
 To increase the Difficulty of Escape. 
 
 These means depend very much upon the geographical situation 
 of a country, and upon natural and artificial barriers. In Eussia, 
 the sparseness of the population, the severity of the climate, 
 the difficulty of communications, give a power to justice, of 
 which it would hardly be thought capable in so extensive a 
 country. 
 
 At Petersburg and Eiga, passports cannot be obtained, unless 
 the intention of departure has been several times advertised in 
 the gazettes. This precaution against fraudulent debtors adds to 
 the security of commerce. 
 
 Everything which increases the facility of transmitting and 
 spreading intelligence, may be referred to this head. 
 
 , CHAPTEE XIV. 
 
 To diminish the Uncertainty of Prosecutions and Punishments. 
 
 I DO not intend to enter here upon the vast subject of procedure ; 
 that will be the subject, not of a chapter, but of a separate 
 work. I confine myself to two or three general observations. 
 
 If an offence has been committed, it ' is for the interest of 
 society that the magistrate to whose cognisance it belongs should 
 be informed of it ; and informed in such a manner as to be 
 authorised to inflict a punishment. If it be alleged) that an 
 offence has been committed, it is the interest of society that the 
 truth or falsehood of that allegation be subjected to proofs. 
 Therefore the rules of testimony and the forms of procedure 
 ought to be such as, on the one hand, to admit every true infor- 
 mation, and on the other, to exclude every false information, that 
 is, everything which is more likely to mislead than to enlighten. 
 
 Nature has placed before us a model of procedure. Consider 
 what passes in the domestic tribunal ; exacmine the conduct of 
 
430 PHINCIPIES OP THE PENAL CODE. 
 
 the father of a family towards his children, his domestics, of 
 which he is the head. "We shall find there the original features 
 of justice, which can no longer be recognised, after they have 
 been disfigured by men incapable of discerning the truth, or in- 
 terested to disguise it. A good judge is only a good father, 
 acting upon a much larger scale. The means which are adapted 
 to guide a father in the search after truth, ought equally to be 
 good for a judge. It is this model of procedure upon which 
 justice began, and from which it ought never to have departed. 
 
 It is true that a confidence may be felt in the father of a family 
 which cannot be felt in a judge, because a judge has not the 
 same motives of affection, and may be perverted by personal 
 interest. But this only proves that in case of a judge, it is 
 necessary to take precautions against partiality and corruption 
 which are not needed in the domestic tribunal. It does not 
 prove that the forms of procedure or the rules of testimony ought 
 to be different. 
 
 The English law admits the following principles :— 
 
 1st. That no one ought to be a witness in his own case. 
 
 2nd. That no one should be received as his own accuser. 
 
 ■3rd. That the testimony of persons interested in a cause ought 
 jnot to be taken. 
 
 4th. That hearsay evidence ought never to be admitted. 
 
 5th. That no one ought to be put on trial a second time for the 
 - same offence. 
 
 It is not my intention to discuss here these rules of testiniony 
 ^0 which may be applied that description — -penitus toto divisos 
 'Orle Britannos — Britain whoUy separate from the rest of the 
 world. In a treatise on procedure in general, a proper place will 
 be found to inquire whether the English jurisprudence, superior 
 in some respects to that of aU nations, owes its superiority to 
 to these maxims, or whether they are not the principal cause of 
 that weakness in the executive power of justice whence there 
 results in England an ineffective police and such frequency of 
 offences. 
 
 AU I shall say here is, that every precaution which is not abso- 
 
PEINCIPIES OF THE PENAL CODE, 421 
 
 lutely necessary for the protection of innocence affords a dangerous 
 lurking-place to crime. "WTiat maxims of procedure can be mora 
 dangerous than those which put justice in opposition to itself, 
 and which establish a kind of incompatibility between its duties ? 
 When it is said, for example, that it is better that a hundred 
 of the guUty should escape than that one innocent person should 
 perish, a dilemma is supposed which does not exist ; the security 
 of innocence may be complete without favouring the impunity of 
 crime; indeed, it can only be complete on that condition ; for 
 every culprit who escapes threatens the public security ; and, so 
 far from being a protection to innocence, such an escape exposes 
 innocence to become the victim of a new offence. To acquit a 
 criminal is to commit by his hands all the offences of which he 
 is afterwards guilty. 
 
 The difficulty of proceeding against offences is a great cause of 
 feebleness in the executive power of justice, and of impunity to- 
 crime. "When the law is clear, when the judge is appealed to 
 immediately after tte supposed offence, the function of accuser is 
 almost confounded with that of a witness. When the offence is 
 committed under the eye of the judge, there are, so to speak, but 
 two persons necessary in the drama — the judge and the delin- 
 quent. It is distance of time and place which separate the func- 
 tion of the witness from that of the judge. But it may happen 
 that all the witnesses of the facts cannot be suddenly collected, or 
 that the offence is not discovered till long after its commission, 
 or that the accused alleges facts in his defence which it requires 
 time to verify — all these causes may bring on delays. Delays 
 give occasion to incidents which produce new delays. The pro- 
 cess of justice becomes complicated, and, in order to foUow out 
 this chain of operations without confusion or negligence, it is- 
 necessary to intrust its management to a particular person. 
 Hence results the function of an accuser. The accuser may 
 either be one of the witnesses, or a person interested in the affair, 
 or a public officer specially appointed for that purpose. 
 
 The judicial functions have often been divided, so that the 
 judge who receives the testimony while it is recent, has not the 
 
422 PEiifcrpiES OP the pestal code, 
 
 right to decide ; but is obliged to send the affair to anotber judge, 
 ^v^bo, unless tbe evidence were thus coUeeted, -veould have no 
 leisure to attend to it till tbe proofs were half effaced. There 
 have been established, in most countries, a great number of use- 
 less formalities, and it has become necessary to create officers to 
 attend to those formalities. The system of procedure is so com- 
 plicated that it has become an abstruse science ; he who wishes 
 to prosecute an offence is obliged to put himself into the hands 
 of an attorney, and the attorney himself cannot go on without the 
 aid of another man of the law of a superior class, who directs him 
 by his counsels, and who speaks for him. 
 
 To these disadvantages, two others must be added : — 
 
 1st. Legislators, by a strange piece of self-contradiction, have 
 often closed aU access to the tribunals against those who have the 
 most need of their assistance, by subjecting proceedings at law to 
 taxes, the effect of which is little considered. 
 
 2nd. There is a public disfavour attached to all those who lend 
 their aid, in quality of accusers, to the execution of the laws, — a 
 stupid and pernicious prejudice, which legislators have often had 
 the weakness to encourage, without ever having made the slightest 
 effort to subdue it. 
 
 It is easy to see the consequence of this accumulation of delays 
 and discouragements. The laws are not executed. If a man 
 could address the judge at once, and tell what he has seen, the 
 expense to which this procedure would subject him would be but 
 a trifle. In proportion to the number of intermediate steps which 
 he is obliged to take his expenses are increased. When to this 
 we add loss of time, vexations, and the uncertainty of succeeding, 
 it is astonishing that men can be found bold enough to engage in 
 such a pursuit. There are but few, and there would be stiU 
 fewer if those who adventure in this lottery knew as well as the 
 lawyers what it will cost, and how many chances there are of 
 failure. 
 
 These diflculties would vanish by the mere institution of a 
 public accuser, clothed with the character of a magistrate, who 
 should conduct all prosecutions at the public expense. Informers 
 
PEINCiiriES OF THE PENAL CODE. 433 
 
 ■who expected pay ■would require but a moderate compensation. 
 A hundred gratuitous accusers would present themselves to one, 
 ■who ■would demand pay for his services.* Every law, being put 
 into force, -would manifest its good or bad effects ; the -wheat 
 ■would be ■winno^wed from the chaff. Good.la^ws ■would be appre- 
 ciated ; bad la^ws ■would be repealed. Informers, animated by 
 public spirit, and rejecting all pecuniary re^ward, ■would be heard 
 ■with due respect and confidence ; and deliaquents could no longer 
 escape the punishment of their offences by a bargain ■with the 
 prosecutor. 
 
 It is true that in England, in all grave cases, the accuser is 
 forhidden to make a compromise ■with the accused, without the 
 permission of the court; but although this prohibition ■were 
 universal, ■what possibility is there of its observance in cases 
 •where it is the interest of both parties to elude it ? 
 
 CHAPTEE XY. 
 
 To prohibit Accessory Offences in order to prevent the Principal 
 
 Offence. 
 
 Acts ■which are related to a pernicious eyent as causes may 
 be considered in relation to the principal offence, as accessory 
 offences. 
 
 The principal offence being -well determined, there may be 
 distinguished as many accessory offences as there are acts ■which 
 may serve as preparations for the principal offence, and ■which 
 manifest, on the part of those ■who perform them, an intention of 
 committing it. No^w, the more distinctly these preparatory acts 
 are pointed out and prohibited, the more chances there are of 
 
 * The smallest expense of a proseoution in an English court of justice 
 is twenty-eight pounds sterling, — a sum almost sufficient for the yearly 
 subsistence of a common family. This sum comes out of the pocket of 
 the prosecutor. Under such a system, it is almost a miracle that there 
 are any prosecutions. 
 
434 PKiNcacpiES of the penal cobe. 
 
 preventing the principal offence. If the offender is not stopped 
 at the first step, he may be at the second, or the third. It is 
 thus that a vigilant legislator, like a skilful general, takes care 
 to reconnoitre all the exterior posts of the enemy, in order to 
 interrupt his enterprises. Along all the defiles, and all the passes, 
 he stretches a chain of ■works, diversified according to circum- 
 stances, but connected together in such a way that the enemy 
 finds at each step new dangers and new obstacles. , 
 
 If we consider the practice of legislators we shall find none 
 who have laboured systematically upon this plan, and none who 
 have not followed it to a certain extent. 
 
 Offences of the chase,' for example, have been divided into 
 many accessory offences, according to the nature of the game, or 
 the kinds of nets or instruments necessary to take it. Smuggling 
 has been attacked, by prohibiting inany preparatory acts. 
 Counterfeiting has been attacked in the same manner. 
 
 I shall give some other examples of what might be done in 
 this way against homicide and other corporal injuries. 
 
 The prohibition to carry arms only useful for attack and, easy 
 to be concealed. It "is said that an instrument is made in 
 Holland in the form of a needle, which is shot through a tube, 
 and which infiicts a mortal wound. The manufacture, the sale, 
 the possession of these instruments ought to be forbidden, as 
 accessary to murder. 
 
 Ought pocket-pistols, such as English highwaymen use, to be 
 prohibitfed ? The utility of such a prohibition is problematical. 
 Of aU methods of robbery, that which makes use of fire-arms is 
 least dangerous to the person attacked. In such a case, the 
 mere threat is usually sufficient to accomplish the object. The 
 robber who began vrith shooting, would not only commit an act 
 of useless cruelty, he would disarm himself; while by reserving 
 his fire, he stands on the defensive. He who uses a club or a 
 Bword, has not the same motive to abstain from striking ; and 
 one blow becomes the motive for a second, in order to deprive 
 the victim of power to pursue. 
 
 The prohibition to sell poisons demands a catalogue of poisonous 
 
PEINCEPIES OF THE PENAI COBE. 435 
 
 substances. The sale of them cannot be absolutely prohibited ;* 
 all that can be done is, to regulate it, to subject it to precau- 
 tions, to require that the seller should kno-w the purchaser, that 
 he has witnesses of the sale, that he enters it in a separate 
 book ; and still, some latitude must be left for unexpected cases. 
 These rules, to be complete, demand many details. "Would 
 their advantages counterbalance the embarrassments they would 
 produce ? That depends upon the manners and habits of a 
 people. If poisoning is a frequent offence, it wiU be necessary 
 to take these indirect precautions. They would have been 
 proper in ancient Rome. 
 
 Accessory offences may be distinguished into four classes. 
 
 The first class imply a formed intention to commit the prin- 
 cipal offence. Offences of this kind are comprehended under 
 the general name of attempts, preparations. 
 
 The second class do not imply a criminal intention actually 
 formed, but place the individual in a situation in which there is 
 reason to fear that he may presently conceive a criminal design. 
 Such are gaming, prodigality, and idleness, when poverty is 
 added to it. Cruelty towards animals is an incentive to cruelty 
 towards men, &c. 
 
 Accessory offences of the third class do not imply any criminal 
 intention, actual or probable, but only accidentally possible. 
 Offences of this kind are created by those regulations of police 
 intended to prevent calamities. "When, for example, the sale of 
 certain poisons or the sale of gunpowder is forbidden, the 
 ■violation of these rules, separate from any criminal intention, is 
 an offence of this third class. 
 
 The fourth class is composed of presumed offences, that is, of 
 acts which are considered as proofs of an offence. They may 
 be called evidentiary offences; acts injurious or otherwise in 
 themselves, but furnishing a presumption of an offence, com- 
 mitted. By an English statute, the concealment by the mother 
 of the birth of an illegitimate child, is punished as murder, 
 because such conduct is regarded as a sure proof of infanticide. 
 * Taken in a certain dose, every active medicine is a poison. 
 
426 punsrciPLEs op the penal oode. 
 
 By another statute, it is a capital crime for men to meet 
 together armed and disguised, because this is supposed to be 
 a proof of a formed design to offer violent resistance to the 
 officers of the customs. By another statute, it is an offence to 
 have stolen goods in possession without being able to render a 
 satisfactory accoimt how they were obtained ; because this cir- 
 cumstance is regarded as proof of participation in the theft. By 
 another statute, it is an offence to obliterate the marks upon ship- 
 wrecked property, because such an act indicates intention of theft. 
 
 These offences, founded upon presumptions, suppose two 
 things : — 1st, Distrust of the system of procedure ; 2nd, Dis- 
 trust of the wisdom of the judge. The English legislature 
 fearing that juries, too prone to lenity, would not see in these 
 presumptions a certain proof of guHt, has thought fit to erect tl^e 
 Act which furnishes the presumption into a second offence, an 
 offence distinct irom every other. In those countries in which a 
 perfect confidence is placed in the tribunals, these Acts may be 
 arranged under their proper head, and be considered merely as 
 presumptions, from which the court is to draw such inferences as 
 the circumstances warrant. 
 
 In relation to accessory offences, it is essential to lay down 
 three rules by way of memento to the legislator. 
 
 1st. Whenever a principal offence is created, all preparatory 
 acts and simple attempts ought also to be prohibited, ordinarily 
 under a less penalty han the principal offence. This rule is 
 general, and the exceptions ought to be founded upon particular 
 reasons. 
 
 2nd. To the description of the principal offence there ought to 
 be appended a description of aU accessory, preliminary, and con- 
 comitant offences which are susceptible of a specific description. 
 
 3rd. In the description of these accessory offences, care must 
 be taken not to impose too many restraints, not to entrench too , 
 far upon individual liberty ; not to expose innocence to danger 
 by conclusions too precipitate. The description of an offence of 
 this kind would be almost always dangerous, if it did not include 
 a clause leaving power to the judge to estimate the degree of pre- 
 
PEUfCIPLES OP THE PENAL CODE. 437 
 
 Bumption to be derived from it. In that case, creating an accessory 
 offence is pretty much the same thing as suggesting the fact in 
 question to the judge, by way of instruction, as an indicative 
 circumstance ; but not authorizing him to draw any conclusion 
 from it, if he see any special reason to regard the indication as 
 inconclusive. 
 
 If the punishment of a preliminary offence, or of an offence 
 begun but not finished, were the same with that of the principal 
 or complete offence, without allowing anything for the possibility 
 of repentance or a prudent stopping short, the delinquent per- 
 ceiving that he had already incurred the whole danger by the 
 simple attempt, would feel himself at liberty to consummate the 
 offence without incurring any further risk. 
 
 CHAPTEE XVI. 
 
 The Culture of Benevolence. 
 
 The sentiment of benevolence is distiact from' the love of repu- 
 tation. Each may act without the other. This sentiment may 
 originate in an instinctive principle, the gift of nature ; but, in a 
 great measure, it is the produce of culture, the fruit of educa- 
 tion. "Wliere is the greater amount of benevolence to be found, 
 among the English or the Iroquois, in the infancy of society or 
 its maturity? If the sentiment of benevolence be susceptible of 
 increase, and that it is cannot be doubted, that increase is to be 
 obtained by the aid of another principle of the human heart, the 
 love of reputation. When the moralist paints benevolence with 
 the most amiable features, and selfishness, hardness of heart, in 
 the most odious colours, at what does he aim? He seeks to 
 unite to the purely social principle of benevolence, the demi- 
 personal and demi-social principle of reputation. He seeks to 
 combine them ; to give them the same direction ; to strengthen 
 them one by the other. If his efforts are crowned with success, 
 to which of these two principles ought he to- ascribe the honour. 
 
428 PKINCIPLES OF THE PENAl CODE. 
 
 Neitter to the one nor to tlie other exclusively, but to their reci- 
 procal concourse ; to the sentiment of benevolence as the imme- 
 diate cause ; to the love of reputation as the remote cause. He 
 who yields with pleasure to the mild promptings of the social 
 principle knows not, and does not desire to know, that it is a 
 less noble principle to which his benevolence owes its impulse. 
 Such is the disdainful delicacy of the better element of our nature; 
 it is unwilling to owe its birth to anything but to itself; it 
 blushes at every foreign association. 
 
 There are two objects for the legislator : — 1st, To give new 
 force to the sentiment of benevolence ; 2nd, To regulate its appli- 
 cation according to the principle of utUity. 
 
 1st. The legislator who wishes to inspire a people with 
 humanity ought himself to give the first example of it. Let him 
 show the utmost respect, not only for the lives of men, but for 
 all the circumstances which have an influence upon their sensi- 
 bility. Sanguinary laws have a tendency to render men cruel, by 
 fear, by imitation, and by fostering a spirit of revenge. Mild 
 laws humanize the manners of a nation ; the spirit of the govern- 
 ment is reproduced among the citizens. 
 
 The legislator ought to forbid everything that serves as an 
 incitement to cruelty. The barbarous gladiatorial shows intro- 
 duced at Eome, in the latter times of the republic, contributed, 
 without doubt, to inspire that ferocity of spirit which the Romans 
 displayed in their civil wars. Will a people accustomed to despise 
 human life in their sports respect it in the rage of passion ? 
 
 It is proper, for the same reason, to forbid every kind of 
 cruelty to animals, whether by way of amusement or for the 
 gratification of gluttony. Cook -fights and bull-fights, the chase 
 of the hare and the fox, fishing, and other amusements of the 
 same kind, necessarily suppose a want of reflection or a want of 
 humanity; since these sports inflict upon sensitive beings the 
 most lively sufferings, and the most lingering and painful death 
 that can be imagined. Men must be permitted to kill animals ; 
 but they should be forbidden to torment them. Artificial death 
 may be rendered less painful than natural death by simple pro- 
 
PEINCrPLES OP THE FESTAL CODE. 48^ 
 
 ecsses, ■well worth the trouble of being studied, and of becoming 
 an object of police. Why should the law refuse its protection to 
 any sensitive being ? A time ■will come ■when humanity ■will 
 spread its mantle over everything that breathes. The lot of 
 slaves has begun to excite pity ; we shall end by softening the lot 
 of the animals -which labour for us and supply our -wants. 
 
 I do not kno^w ■whether the Chinese legislators, in establishing 
 their minute ceremonials, have had for their object the cultivation 
 of benevolence, or only the maintenance of peace and subordina- 
 tion. In China, politeness is a kind of worship or ritual, the 
 great object of education, and the principal science. The bodily 
 movements of the Chinese, always regulated, always prescribed 
 by etiquette, are almost as uniform as those of a regiment ■which 
 goes through the manual exercise. This pantomime of bene- 
 volence may be destitute of reality, as a devotion loaded ■with 
 minute observances may have little to do ■with morals. So much 
 restraint does not seem to accord ■well ■with the human heart ; and 
 such demonstrations of respect do not confer any obligation, 
 because they have no merit. 
 
 There are principles of antipathy, which are sometimes so inter- 
 laced ■with the political constitutions of states, that it is very diffi- 
 cult to extirpate them. There are hostile religions which excite 
 their partisans to hate and to persecute each other ; hereditary 
 feuds between hostile families ; pri^vUeges of rank which erect 
 insurmountable barriers between the citizens ; results of conquest, 
 where the conquerors have not been able to mix and incorporate 
 themselves ■with the conquered people ; animosities founded upon 
 ancient ■wrongs ; the rule of factions which rise ■with a victory, 
 and fall ■with a defeat. In this unfortunate condition of things, 
 hearts are oftener united by hatred than by love. Men must be 
 freed from fear and oppression, before they can be taught to love 
 each other. The destruction of prejudices which make men 
 hostile, is one of the greatest services that can be rendered to 
 morals. 
 
 Mungo Park in his African travels, has represented the blacks 
 in a most interesting point of view ; their simpHcity, the strength 
 
 / 
 
,^.,M PEIirCTPLES OF THE- PENAL COBE. 
 
 of their domestic affections, the picture of their innocent manners, 
 has increased the puhlic interest in their favoTir. 
 
 Satirical writers ■weaken this sentiment. After reading Voltaire, 
 does one feel favoiirably disposed towards the Jews ? If that 
 author's benevolence had not been eclipsed by his prejudices, 
 while exposing the degradations to which the Jews are subjected, 
 he would have explained by that very fact the less favourable 
 traits of their character, and would have exhibited the remedy by 
 the side of the evil. 
 
 The most dangerous assaults upon benevolence have been made 
 by exclusive religions, having incommunicable rights, inspiring 
 intolerance, and representing unbelievers as infidels, the enemies 
 of God. 
 
 In England, better than elsewhere, is understood the art of 
 exciting beneficence by the publicity which is given to it. Is it 
 wished to establish a charitable institution which requires many 
 contributors? — a committee of the most active and distin- 
 guished benefactors is appointed; the amount of contributions 
 is announced in the newspapers ; and the names of the subscribers 
 are printed from day to day. This publicity answers two ends. 
 Its immediate object is, to guarantee the receipt and employ- 
 ment of the funds ; but it is also a bait to vanity by which bene- 
 volence gains. 
 
 In charitable societies all the annual subscribers are named 
 directors ; the control they exercise, the little state they form, 
 interest them in their office. They love to follow up the good 
 they have done, and to enjoy the power which it confers. The 
 benefactors being thus brought into contact with the unfortunate, 
 misery being thus placed before their eyes, benevolence is 
 strengthened and confirmed ; it grows cool by the removal of the 
 object, but warms again by its presence. 
 
 There are more of these benevolent societies in London than 
 there ever were convents in Paris. 
 
 Many of these charities have particular obje.cts : the blind, 
 orphans, the maimed, widows, sailors, the children of clergymen. 
 Each individual is more touched by one kind of misery -than by 
 
PEIlfCIPIES OP THE PENAI CODE. <l&a-* 
 
 another, and his sympathy almost always depends upon some per- 
 sonal circumstance. Of course, there is much art in diversifying 
 charities, in separating! them into many branches, in order that 
 every kind of sensibility may be made available, and that none 
 may be lost. 
 
 It is astonishing that more advantage has not been taken of the 
 disposition of women, among whom the sentiment of pity is 
 stronger than among men. Before the revolution, there were 
 two institutions in France well adapted to this end : the Daughters 
 of Charity^ who devoted themselves to the service of the hospitals, 
 and the Society of Maternal Clmrity at Paris, composed of mar- 
 ried ladies, who visited poor women in their pregnancy, and 
 aided them in the care of their infants. 
 
 2nd. The sentiment of benevolence is liable to deviate from 
 the principle of general utility. It cannot be set right except by 
 instruction. Command and force do not avail. Men must be 
 persuaded, enlightened, taught little by little, to distinguish the 
 different degrees of utility, and to proportion their benevolence 
 to the extent of its object. The best model is traced by Fenelon 
 in that sentence which paints his heart : " I prefer my family to 
 myself, my country to my family, mankind to my country." 
 
 It should be the object of public instruction to direct the 
 affections of the citizens towards the end of utility ; to repress 
 vagaries of benevolence ; and to make each individual perceive 
 how the general interest involves his own. Men should be . 
 taught to blush at that spirit of family, at that spirit of caste, at 
 that spirit of party, sect or profession, which militates against 
 the love of country ; and at that unjust patriotism which glories 
 in the hatred of other nations. They should be dissuaded from 
 assuming, through a misplaced pity, the advocacy of deserters, 
 smugglers, and other delinquents who sin against the state. 
 They should be disabused of that false notion that there is any 
 humanity in favouring the escape of a criminal, in lending im- 
 punity to crime, in encouraging mendicity to the prejudice of 
 industry. The attempt should be made to give to all their senti- 
 ments of benevolence the most advantageous proportion, by 
 
"^"J PKINCIPLES OP THE PENAI CODE. 
 
 pointing out the littleness and the danger of those caprices, 
 antipathies, and momentary attachments, which incline' the 
 balance against general utility and permanent interest. 
 
 The more men become enlightened, the more they wUl 
 contract a spirit of general benevolence, because the progress 
 of enlightenment mates it evident that the interests of men are 
 oftener harmonious than discordant. In commerce, nations not 
 well informed ti:eat each other as rivals, who cannot rise ex- 
 cept upon each other's ruins. The work of Adam Smith is 
 a treatise upon imiversal benevolence, because it shows that 
 commerce is equally advantageous to all parties ; that each party 
 profits in its own way, according to its natural means ; and that 
 nations are partners, not rivals, in the great social enterprise. 
 
 CHAPTER XVII. 
 
 Employment of the Motive of Sonowr, or the Popular Sanction. 
 
 It should be the object of the legislator to increase the force of 
 this motive, and to regulate its application. 
 
 The force of public opinion is in the compound ratio of its 
 extent and its intensity. Its extent is measured by the number 
 of suffrages ; its intensity by the degree of blame or of appro- 
 bation. 
 
 There are many means of increasing the power of opinion so 
 far as concerns its extent : the principal are — liberty of the 
 press, and 'publicity in all proceedings in which the nation is 
 interested ; publicity of the tribunals ; publicity of accounts ; 
 publicity of state consultations when secrecy is not required for 
 some particular reason. An enlightened public, the depository 
 of the laws and of the archives of honour, and administrator of 
 the moral sanction, forms a supreme tribunal, which decides upon 
 all cases and all persons. By publicity in affairs, this tribunal 
 is enabled to collect proofs and to form a judgment; by the 
 liberty of the press it is enabled to pronounce its judgment, and 
 to cause it to be executed. 
 
PnilfCIPLES 01? THE TEIfAL CODE. 433 
 
 There are also a number of means for increasing the intensity 
 of the power of opinion ; such as punishments which bear some 
 character of ignominy, or rewards of which the principal object 
 is honour to those who receive them. 
 
 There is an art of guiding opinion, without the public suspect- 
 ing how it is led. It consists in arranging things so that the act 
 which you wish to prevent cannot be performed without first 
 doing something else, which popular opinion condemns already. 
 If it be desired, for example, to secure the payment of an. 
 impost, you may exact from him whose duty it is to pay, a certi- 
 ficate or an oath that he has paid. 
 
 To take a false oath, to fabricate a false certificate, under what- 
 ever pretence, are offences which the public is prepared beforehand 
 to stamp with disapprobation. So that here we discover a sure- 
 means of rendering an offence infamous, which without this; 
 addition would not be so. 
 
 Sometimes a mere change ia the name of a thing is enough to 
 change the sentiments of a nation. The Eomans abhorred the 
 name of Icing, but they could put up with the titles oi dictator and 
 etnperor. Cromwell did not succeed in seating himself upon the 
 throne of England, but under the name of protector, he enjoyed 
 more than kingly authority. Peter I. of Russia abdicated the title- 
 of despot for himself, and he ordered that the slaves of the nobles 
 should henceforth be called only subjects. 
 
 If the people were philosophers, this expedient would no< 
 answer ; but on this point philosophers are as weak as the people. 
 "VMiat deception in the words liberty and equality ! What con- 
 tradictions between that luxury which all condemn, and ^Ha&ipuMic 
 prosperity which all admire ! 
 
 The legislator ought to beware how he strengthens public 
 opinion in cases where it is in opposition to the principle of 
 utility. For this reason he ought to efface from the laws every 
 vestige of those pretended offences of heresy and witchcraft,,, lest 
 he give a legal foundation to superstitious notions. If he does, 
 not dare to attack errors, too generally diffused, at least he ought 
 not to furnish them with a new sanction. 
 
434 PEtNCIPIES OP THE PENAL CODE. 
 
 It is very difficult to employ the motive of honour as a means 
 to aid the enforcement of the laws. Pecuniary rewards paid to 
 informers, have failed of their object. The motive of gain has 
 heen opposed by that of shame ; and the law, instead of increas- 
 ing its power, has weakened itself by offering an inducement 
 condemned by public opinion. Persons are afraid of the suspicion 
 of acting from a mean motive. Rewards not well selected, 
 repulse, instead of attracting, and deprive the law of much 
 gratuitous assistance. 
 
 The most powerful means of producing an important revolu- 
 tion in public opinion, is, to strike the mind of the people by 
 some great example. Thus Peter the Great himself, gradually 
 passing through aH the gradations of -rank, taught his nobility, 
 by his own example, to bear the yoke of military subordination. 
 Thus Catherine II. surmoimted the popular prejudice against 
 inoculation, by trying it, not upon criminals, but on herself. 
 
 CHAPTEE XVIII. 
 
 Employment of the Motive of ReKgion. 
 
 The culture of religion has two objects : — 1st, To increase the 
 power of that sanction ; 5nd, To give that power a proper 
 direction. If its direction be bad, it is plain that the less power 
 "that sanction has, the less evil it wiU do. "With respect then to 
 religion, the first thing to be examined is, its tendency; the 
 search for means to augment its power, is but a secondary 
 object. 
 
 Its tendency ought to be conformable to the plan of utility. 
 As a sanction, it is composed of punishments and rewards. Its 
 punishments ought to be attached to those acts which are injurious 
 to society, and to such acts alone. Its rewards ought to be pro- 
 mised to acts the tendency of which is advantageous to society, 
 and to no acts beside. This ought to be its fundamental dogma. 
 
 The only means to judge of its tendency is to consider it solely 
 in its relation to the good of political society. Every other part 
 
PEINCIPIES OF THE PENAL CODE. 435 
 
 of it is indifferent; and whatever is indifferent in religious 
 belief is liable to become pemicioiis. 
 
 Every article of faith, is of necessity injurious so soon as the 
 legislator, in order to favour its adoption, resorts to coercive 
 motives, — to motives derived from the fear of punishment. The 
 persons whom he wishes to influence may be considered as forming 
 three classes : those who are already of the same opinion with the 
 legislator; those who reject that opinion; those who neither 
 adopt nor reject it. 
 
 For those who conform voluntarily, a coercive law is not neces- 
 sary ; for nonconformists it is useless, as is proved by the very 
 fact of their nonconformity ; it does not fulfil its purpose. 
 
 When a man has formed his opinion, can punishments make 
 him change it ? The very question is an insult to common sense. 
 Punishments have rather a contrary effect ; they rather serve to 
 confirm one's opinion than to shake it, partly because the employ- 
 ment of constraint is a tacit avowal that arguments are wanting ; 
 partly because recourse to violent means produces an aversion to 
 opinions so sustained, Punishment never can oblige a man to 
 believe, but only to pretend that he believes. 
 
 Those who, through conviction, or the pride of honour, refuse 
 to pretend a belief they do not feel, are exposed to the evil of 
 pomishment, — that is, to persecution ; for what is caRei persecu- 
 tion, is an evil which is not compensated by any advantage ; it is 
 a pure loss ; and though administered by the hand of the magis- 
 trate, it is precisely the same in nature, but much severer in 
 degree, than if it had been the work of an ordinary malefactor. 
 
 Those persons, less strong-minded, and less noble, who escape 
 by a false declaration, yield to threats, and to the immediate 
 danger which presses them ; but the momentary punishments 
 thus avoided turn into a punishment of conscience, if they have 
 any scruples, and into a pimishment of contempt upon the part 
 of society, which cannot endure the baseness of such hypocritical 
 retractions. 
 
 In such a state of things, what happens ? A portion pf the 
 citizens must accustom themselves to disregard the opinions of 
 
 F F 2 
 
436 PRINCIPLES OF THE PENAt CODE. 
 
 another part, in order to be at peace witt themselves. {There 
 springs up an art of making subtle distinctions between innocent 
 falsehoods and criminal falsehoods ; there is established a class of 
 privileged lies, permitted as a defence against tyranny, — a set of 
 perjuries which are esteemed innocent, and false signatures con- 
 sidered as mere formalities. In the midst of these subtUties 
 respect for truth disappears; the limits of good and evil are 
 confounded ; a train of less pardonable falsehoods is introduced 
 under cover of those already described ; the tribunal of opinion is 
 divided : the judges who compose it do not follow the same law ; 
 they do not clearly know what degree of dissimulation they 
 ought to condemn or what they ought to excuse. The votes are 
 scattered and contradictory, and the moral sanction, having no 
 longer a uniform regulator, grows weak,- and loses its influence. 
 Thus, the legislator who imposes religious tests becomes the 
 corrupter of the nation. He sacrifices virtue to religion, though 
 religion itself is a good only so far as it is the auxiliary of virtue. 
 The third class of the community, according to the division 
 above stated, comprises those persons who, at the establishment 
 of the penal law for the regulation of belief, had yet no settled 
 opinion one way or the other. With respect to these, it is 
 likely that the law may have an influence upon the formation of 
 their opinions. Seeing danger upon one side, and security upon 
 the other, it is natural that they should examine the arguments 
 in favour of an opinion which the law condemns, with a degree 
 of fear and aversion, that they will not feel for the arguments 
 which support the favoured opinion. The arguments which we 
 desire to find true, make a more lively impression than those 
 which we hope to find false ; and thus a man comes to believe, 
 or rather not to reject, not to disbelieve a proposition which he 
 would not have adopted had his inclinations been left free. In 
 this last case, the evil, though not so great as in the two 
 former, does not cease to be an evil. It may happen, but it does 
 not always happen, that the judgment yields entirely to the affec- 
 tions ; and even though it should so happen, though the belief 
 should be as strong as it can be, if fear enters at all into the 
 
PBINCIPLES OP THE PEKAL CODE. 437 
 
 motives of that belief, the mind is never perfectly tranq[tiil. 
 There remains a secret dread that what is believed to-day may be 
 disbelieved to-morrow. The conviction of a clear moral truth is 
 never shaken ; but belief in a mere dogma is always more or lest 
 wavering. ' Thence arises that impatience towards those who 
 attack it. Examination and discussion are dreaded by men who 
 feel the ground shaking under their feet. It will not do to 
 allow any alterations in a building which lacks a foundation. 
 The understanding is enfeebled ; the mind seeks only for perfect 
 repose in a sort of blind credulity ; it collects together all the 
 errors which have any aflSnity with its own ; it fears to explain 
 itself clearly as to the ^possible and impossible, and seeks to 
 confound all their limits. It delights in all sorts of sophistries, 
 in everything that shackles the human understanding, in every- 
 thing which seems to show that no certain dependence can be 
 placed upon reason. It acquires an inclinatioji, an unhappy 
 dexterity for rejecting evidence ; for giving weight to half 
 proofs; for hearing but one side ; for evading the decisions of rea- 
 son. In one word, according to this system, it is necessary to put 
 a bandage about the eyes, lest we be wounded by the light of day. 
 
 Thus every penal means employed to augment the power of 
 religion, acts as an indirect means against that essential part of 
 morals, which consists in respect for truth, and respect for public 
 opinion. AU enlightened minds now hold this doctrine ; but 
 there are very few states which have yet adopted it. Violent 
 persecutions have ceased, but moderate persecutions stiU exist, 
 civil penalties, political incapacities, menacing laws, a precarious 
 toleration; — a humiliating situation for large classes of men, who 
 owe their tranquillity only to a tacit indulgence, to a continued 
 pardon. 
 
 To form a clear idea of the advantage which the legislator 
 may derive from augmenting the force of the religious sanction, 
 it is necessary to distinguish three cases : — 1st, That in which 
 it is entirely under his control; 2nd, That in which other 
 persons share the influence with him ; 3rd, That in which it 
 depends upon some foreign personage. In this last case, the sove- 
 
438 PEOTCIPLES OE THE PENAL CODE. 
 
 reignty is really divided, between two magistrates, the spiritual, as 
 lie is called, and the temporal. The temporal sovereign is in per- 
 petual danger of seeing his authority disputed or snatched away 
 by his rival, and everything he does for the augmentation of the 
 reUgious sanction will produce a diminution of his own power. 
 "We find in history a picture of the effects which result from such 
 a struggle. The temporal magistrate commands such or such an 
 action; the spiritual magistrate forbids it. Whichsoever side 
 the citizens take, they are punished by the one, or by the other ; 
 proscribed, or damned ; they are placed between the fear of the 
 gallows, and the dread of hell-fire. 
 
 In Protestant countries, the clergy are essentially subordinate 
 to the political power. Dogmas do not depend upon the prince, 
 but those do who interpret the dogmas. 'Sow the right of inter- 
 pretation is pretty much the same thing with the right of pro- 
 mulgation. Thus in Protestant countries, religion is easily 
 modelled, according to the plans of political authority. Married 
 priests are more like citizens ; they do not form a phalanx which 
 can become formidable ; they have neither the power of the con- 
 fessional, nor that of absolution. 
 
 But if we consider only facts, whether in CathoHc or Protes- 
 testant countries, religion, it must be admitted, has had too great 
 a share in the misfortunes of mankind. It seems to have been 
 oftener the enemy than the instrument of civil government. The 
 moral sanction never has more power than when it agrees with 
 utility ; but unfortunately the religious sanction appears to have 
 most power in the very cases where it is most opposite to utility. 
 The inefficacy of religion, so far as relates to the promotion of 
 political good, is the ceaseless subject of declamations on the part 
 of those who have the greatest interest to exaggerate its good 
 effects. Not powerful enough to produce good, its power of doing 
 evil has always been too great. It was the moral sanction which 
 animated Codrus, Eegulus, the Eussells, and the Sidneys. It 
 was the religious sanction which made Philip II. the scourge of 
 the Low Countries, Mary the tyrant of England, and Charle-s IX. 
 the butcher of France. 
 
PEQTCIPLES OP THE PENAt CODE. 439 
 
 The common solution of this difficulty is to attribute all the 
 good to reKgion, and all the e'vil to superstition. But this dis- 
 tinction, in this sense, is purely verbal. The thing itself is not 
 changed because a man chooses to describe it, in one case, by the 
 ■word religion, and by the "word superstition in another. The 
 motive ■which acts upon the mind is precisely the same in both 
 cases. It is always the fear of evil and the hope of good on the 
 part of an aU-powerful Being, of ■whom different ideas are enter- 
 tained. In speaking of the conduct of the same man, upon the 
 same occasion, some attribute to religion what others ascribe to 
 superstition. 
 
 Another observation, as trivial as the first, and as weak as it is 
 tri-vial, is the remark so often repeated, that it is not just to argue 
 against the me of a thing from its abuse, and that the best instru- 
 ments do the most harm when misemployed. The futility of this 
 argument is obvious ; it consists in calling the good effects of a 
 thing its use, and in stigmatizing the bad effects as its abuse. To 
 say that you ought not to argue from the abuse of a thing against its 
 use, is to say that, ia making a just appreciation of the tendency 
 of a cause, you, ought to consider only the good, and not the evil 
 it produces. The instruments of good, ■wrongly employed, may 
 often become instruments of e^vil'j that is true ; but the principal 
 characteristic of perfection in an instrument is not to be liable to 
 be so misemployed. The most efficacious ingredients in medicine 
 may be converted into poisons ; I admit it ; but those which are 
 dangerous are not so good, upon the ■whole, as those which answer 
 the same purpose, if such there are, ■without being liable to the 
 same abuses. Mercury and opium are very useful ; bread and 
 water are stiU more so. 
 
 I have spoken without evasion, and ■with perfect freedom. I 
 have elsewhere explained the utUity of religion, but I cannot here 
 omit to observe that it tends more and more to disengage itself 
 from futile and pernicious dogmas, and to reconcile itself to sound 
 morals and to soimd politics. Irreligion, on the other hand, has 
 been manifested in our day under the most hideous forms q£ 
 absurdity, of immorality, and of persecution. This experienoeis 
 
440 PEINCIPLES OF THE PENAL CODE. _ 
 
 ■enough to show all -well-disposed minds towards what end they 
 ought to direct their efforts. But if the government should act 
 too openly in favour of this salutary direction, it would fail of its 
 ■end. It is freedom of inquiry which has corrected the errors.of 
 the ages of ignorance, and brought back religion towards its true 
 ■object. "Freedom of inquiry will complete the puiiflcation of reli- 
 gion, and its reconciliation with public utility. 
 
 This is not the place to examine all the services which religion 
 may render, either as- a consolation to the woes inseparable from 
 . humanity; or as moral instruction best adapted to the most numer- 
 ous class of society; or finally ^s a means of exciting beneficence, 
 and of producing acts of devoted virtue, which perhaps could hardly 
 be obtained by the power of mere earthly motives. 
 
 The principal employment of religion, in civil and penal legis- 
 lation, is -to give a new degree of force to oaths, an additional 
 support to confidence. 
 
 An oath includes two different ties, one religious, the other 
 moral ; one obligatory upon all, the other, obligatory upon those 
 only who have a certain set of opinions. The same formula 
 which, in case of perjury, purports to expose the offender to reli- 
 gious penalties, exposes him, at the same time, to legal punish- 
 ments and to public contempt. The religious obligation is the 
 ■striking part ; but the main force of the oath depends upon the 
 moral tie. The influence of the first is partial, that of the second 
 is universal. It would he a great piece of imprudence to make 
 use of the former and to neglect the latter. 
 
 There are cases in which oaths have a very great power ; those, 
 namely, in which they act in concert with public opinion, or have 
 the support of the popular sanction. There are other cases in 
 "which their power is very small ; those, namely, in which they 
 are in opposition to public opinion, or are merely imsupported 
 by it. Such are custom-house oaths, and those exacted from the 
 pupils at certain universities. 
 
 It is the interest of a legislator, not less than of a military 
 chief, to know the true state of the forces under his command. 
 To avoid seeing the weak part, because the sight of that weak 
 
MtllfCIPLES OP IHB PENAL CODE. 441 
 
 part gives little satisfaction, is pusillanimity. If the feebleness 
 of oaths, so far as the reliigious obligation is concerned, has been 
 folly made known, it. is the fault of those who place the greatest 
 reliance on this means. The abuse they have made of it, the 
 prodigality with which they have employed it, has betrayed the 
 little efficacy which it has in itself, distinct from the sanction of 
 honour. ' 
 
 The power of oaths is necessarily enfeebled, when they are 
 made to bear upon belief, upon opinions.- "Why? Because, ui 
 such cases, it is impossible to detect perjury, and because humanr 
 reason, always afloat, alwayfi subject to variations, cannot biad 
 itself for the future. Can I be certain that my belief to-day will 
 be my belief ten years hence ? ' These oaths are an advantage 
 given to unscrupulous men over those who have a greater sensi- 
 bility of conscience. 
 
 Oaths become degraded when they are used for puerile pur- 
 poses ; when they are employed for purposes as to which there 
 is a general understanding to violate them ; and still more when 
 they are required iu cases in which justice and humanity excuse, 
 and perhaps applaud, their violation. 
 
 The human mind, almost always opposed to tyranny, perceives 
 confusedly that the Deity, on account of his very perfections, 
 cannot ratify unjust or frivolous laws. Man, in fact, by impos- 
 ing an oath, wishes to exercise an authority over God himself; 
 man decrees a punishment, and the Supreme Judge is called 
 upon to execute it. Deny this supposition, and there is an end 
 to the religious force of an oath. 
 
 It is very astonishing that in England, among a people other- 
 wise prudent and religious, this powerful means has been almost 
 ruined by the trivial and indecent use that has been made of it. 
 
 To show how far habit may deprave moraLopinions upon some 
 poults, I shall cite a passage extracted from Lord Eaims, a judge 
 of the Court of Session in Scotland, in a work upon education : — 
 
 " Custom-house oaths, at present, go for nothing ; not because 
 men are growing more immoral, but because no one attaches any 
 importance to them. The duty upon French wines is the same 
 
448 PEiwcrPLES or the penal code. 
 
 in Scotland as in England ; bnt, as we are not rich, enough to pay 
 it, a tacit permission to pay upon French, wines the same duty as 
 upon Spanish wines, is found more advantageous to the revenue 
 than the rigour of the law. However, before the duty is paid, 
 an oath must he taken that the French wines are Spanish wines. 
 Such oaths in their origin were criminal, because they were a 
 fraud upon the public; but at present the oath is only a matter 
 of form, and does not imply any credit given or received ; it is a 
 mere manner of speaking, like the compliments of common civility, 
 your Jmmlle servant, &c. And, in fact, we see merchants who 
 gain a livelihood by these oaths, and who are trusted without 
 scruple in the most important afiairs." 
 
 TVhat shall we think when a moralist and a judge holds lan- 
 guage like this ? The Quakers have raised a simple affirmation 
 to the dignity of an oath ; a magistrate degrades an oath into a 
 mere formality ; the oath implies no credit, given or received. 
 Then why take it ? Why exact it ? For what does this farce 
 serve ? Is religion then the meanest of objects ? If it is, why 
 pay so dear for it ? "What an absurdity to mailitain a clergy at 
 so great an expense, to preach the sacredness of oaths, and to 
 have judges and legislators who turn them into ridicule ! 
 
 CHAPTEE XIX. 
 
 Use to he made of the Power of Instruction. 
 
 Insietction does not form a separate subject ; but this title will 
 enable us to bring under one head a number of detached obser- 
 vations. 
 
 Government ought not to do every thing by force ; it is only, 
 the body which submits to that ; nothing but wisdom can extend 
 its empire over the mind. "When a government orders, it but 
 gives its subjects an artificial interest to obey ; when it enlightens, 
 it gives them an interior motive, the influence of which they 
 cannot evade. The best method of instruction is the simple pub- 
 lication of facts, but sometimes it is advisable to aid the public 
 in forming a judgment upon those facts. 
 
PRINCIPLES OE THE PESTAt CODE. 443 
 
 "WTien measures of government, excellent in themselves, are 
 seen to fail tlirough the opposition of an ignorant people, we feel 
 an immediate irritation against the stupidity of the multitude, 
 and a disinclination to trouble ourselves further with the promo- 
 tion of the public good. But when we come to reflect, when we 
 observe that this opposition was easy to be foreseen, and that 
 government, with the habitual pride of authority, had taken no 
 precautions to prepare the minds of the people, to dissipate pre- 
 judices, to conciliate confidence, our indignation ought to be 
 transferred from a people ignorant and deceived, to its disdainful 
 and despotic rulers. 
 
 Experience has proved, contrary to the general anticipation, 
 that newspapers are one of the best means of directing opinion, 
 of quieting its feverish movements, and of dissipating those false- 
 hoods and concocted rumours by which the enemies of govern- 
 ment aim to accomplish their evil designs. By means of these 
 papers, instruction descends from the government to the people, 
 and remounts from the people to the government ; the more 
 liberty the press enjoys the easier it is to ascertain the current of 
 opinion, so as to act with certainty. 
 
 To form an adequate idea of their utility, it is necessary to go 
 back to the times when newspapers did not exist, and to consider 
 the scenes of imposture, political and religious, which were played 
 off with success, in countries where the people could not read. 
 The last of these personators of royalty was Pugatcheff, "Would 
 it have been possible in our times to play such a part in France 
 or in England ? "Would not the imposture be unmasked as soon 
 as it was announced ? There are offences which are not even 
 attempted among enlightened nations; the ease of detecting im- 
 postures prevents their existence. 
 
 There are many other snares from which the government can 
 protect the people, by public instructions. How many frauds 
 are practised in commerce, in the arts, in the price or quality of 
 goods^ which it would be easy to put an end to by exposing them ! 
 How many dangerous remedies, or rather true poisons, are 
 impudently sold by empirics, as marvellous secrets, as to which 
 
444 PIUNCIPLES OP THE PENAX CODE. 
 
 it -would be easy to disabuse the most credulous, by making 
 known their composition ! How many miscHevous opinions, 
 errors fatal or absurd, -wbicb might be extinguished at their 
 birth, by enlightening public opinion! "When the foUy of 
 animal magnetism, having seduced the idle coteries of Paris, be- 
 gan to spread throughout Europe, a report of the Academy of 
 Sciences, by the mere force of truth, marked Mesmer as a char- 
 latan, and left him no disciples except a few incurable fools, 
 whose admiration completed his disgrace. If you wish to cure 
 an ignorant and superstitious people, send as missionaries into 
 the cities and the country, jugglers and wonder-workers, and let 
 them begin with astonishing the people, by producing the most 
 singular phenomena, and end by enlightening them. Those who 
 are best acquainted with natural magic, are least likely to be 
 duped by magicians. I could wish that the miracle of St. 
 Januarius were repeated at Naples in all the public places, and 
 were even made a plaything for children. 
 
 The principal sort of instruction which governments owe to 
 the people, is knowledge. of the laws. How can we require laws 
 to be obeyed, when they are not even known ? How can they 
 be known, unless they are published under the simplest forms, so 
 that each individual may read for himself, the enactments which 
 are to regulate his conduct ? 
 
 The legislator may exercise an influence over public opinion, 
 by causing to be compiled a body of political morals, analogous 
 to the body of laws, and divided in the same manner into a 
 general and particular codes. The most delicate questions rela- 
 tive to each profession might be explained. It would not be 
 necessary to confine the work to mere didactic lessons ; by inter- 
 mingling a judicious selection of historical anecdotes, it might 
 be made a book of amusement for persons of all ages. 
 
 To compose such moral codes, would be dictating, as it were, 
 the judgments of public opinion upon these different questions 
 of politics and morals. In the same spirit, there might be added 
 to these moral codes a list of popular prejudices, to which should 
 be subjoined the considerations which prove their fallacy. 
 
PBINCIPLES or THE PENAL CODE, 445 
 
 If sovereign power has ever appeared before men with, dignity, 
 it was in the Instructions, published by Catherine II., for a code 
 of laws. Let us consider for a moment this unique example, 
 distinct from the remembrance of an ambitious reign. It is 
 impossible to see without admiration a woman descending from 
 the car of victory to civilize so many semi-barbarous tribes, and 
 to offer them the finest maxims of philosophy, sanctioned by the 
 approval of an empress. Superior to the vanity of composing 
 this work herself, she borrowed the best that could be found in 
 the writings of the wise men of the age ; but by adding the weight 
 of her authority, she lent to those writers more than she bor- 
 rowed. She seemed to say to her subjects, " You owe me the 
 more confidence, since I have taken into my council the ablest 
 men of the times ; and I do not fear to call upon those masters of 
 truth and virtue to hold me up to shame before the face of the 
 world, if I dare to act unworthily." In the same spirit she 
 divided among her courtiers the labours of legislation ; and if she 
 was often in contradiction with herself, like Tiberius, who was 
 weary of the servitude of the- senate, and yet would have 
 punished an effort at liberty, stiH these solemn engagements, 
 contracted in the face of the whole world, were like limits 
 voluntarily put to her power, which she seldom dared to tran- 
 scend. 
 
 CHAPTEK XX. 
 
 Use to be made of the Power of Education. 
 
 Edttcation may be considered as the government of a domestic 
 magistrate. 
 
 The analogies between a family and a state are of a nature to 
 strike at the first glance ; but the differences are not less obvious, 
 and are equally deserving of attention. 
 
 1st. Domestic government needs to be more active, more 
 vigilant, more occupied with details, 'than civU government. 
 Without an attention always vigilant families could not subsist. 
 
44B PEiisrciPiES of the penal code. 
 
 Civil authority cannot do better than to trust the management of 
 personal interests to the prudence of individuals who always 
 understand them better than the magistrate ; hut the head of a 
 family must be constantly aiding the inexperience of fliose sub- 
 mitted to his care. 
 
 Here it is that the censorship can be exercised, — a policy which 
 we have condemned in civil government. The domestic governor 
 may protect those subject to his authority from knowledge which . 
 may do them harm ; he can watch over their social intercourse 
 and their studies ; he can accelerate or retard the progTess of 
 their enlightenment, according to circumstances. 
 
 2nd. This continual exercise of power, which would be liable 
 to so many abuses in a state, is much less so in a family ; for the 
 father and mother have a natural affection for their children, far 
 stronger than that of the civil magistrate for those whom he 
 governs. On their part, indulgence is generally the prompting 
 of nature, while severity is the effect of reflection. 
 
 3rd. Domestic government can employ punishments in many 
 cases where the civil authority cannot ; for the head of a family 
 deals with individuals, while the legislator can only act upon 
 classes. The one proceeds upon certainties, the other upon pre- 
 sumptions. A certain astronomer may be capable, perhaps, of 
 resolving the problem of longitude, but can the civil magistrate 
 know it ? Can he command this' discovery, and punish him for 
 not making it ? But a particular instructor vsdU be likely to 
 know whether a given problem of elementary geometry is level 
 to the capacity of his pupil. Though idleness assume the mask 
 of incapacity, the instructor will hardly be deceived; in such 
 cases the magistrate'is sure to be deceivedi 
 
 It is the same with most of the vices. The public magistrate 
 cannot repress them, because if he attempted it he must have 
 spies in every family. The private magistrate, having under his 
 eye and his immediate control those with whose conduct he is 
 charged, can arrest the beginning of those vices, of which the 
 laws can punish only the last excesses. 
 
 4th. It is especially as regards the power of rewarding, that 
 
PEnsrciPLES OB the penai code. 447 
 
 these two governments differ. , All tte amusements, all the wants 
 of the young, may be made to assume a remuneratory character 
 by granting them on certain conditions, after certain performances. 
 In the Isle of Minorca, the dinners of the boys depended upon 
 their skill in shooting the bow ; and the honour of eating at the 
 public table was the price allotted at Lacedemon to the warlike 
 virtues of the young. No civil government is rich enough to do 
 much by rewards ; no father is so poor as not to possess an inex- 
 haustible fund of them. 
 
 The legislator ought nevertheless to pay particular attention to 
 youth, that season, of lively and durable impressions, in order to 
 direct the course of the inclinations towards those tastes most 
 conformable to the public interest. 
 
 In Russia, means as powerful, as they are well devised, have 
 been employed to engage the young nobility to enter into the 
 army. The good effects that have resulted in consequence, to 
 the military service, are even less than those which have been 
 felt in a pivil point of view. The young nobles are accustomed 
 to order, to vigilance, to subordination. They are obliged to 
 quit their estates, where they exercise a corrupting dominion 
 over slaves, and to show themselves on a greater theatre, where 
 they have equals and superiors. The necessity of mingling with 
 others produces the desire of pleasing; the mixture of men of 
 different races diminishes reciprocal prejudice, and the pride of 
 birth is compelled to bend before the gradations of the service. 
 An unlimited domestic despotism such as that of Eussia was, 
 cannot but be improved by being changed into a military govern- 
 ment, which has its limits. In the actual circumstances of that 
 empire, it would have been difficult to find a general means of 
 education which would have answered more useful purposes. 
 
 But when education is considered as an indirect means of pre- 
 venting offences, an essential reform is evidently needed. The 
 class most neglected ought to become the principal object of its 
 cares. The less the parents are capable of discharging their duty 
 in this respect, the more necessary it is that the government 
 should make up for their deficiencies. Not only should attention 
 
448 PEiNCiPLES or the pbnal cobe. 
 
 be given to orphans left in indigence, but also to cHldren wliose 
 parents are not of a character to be trusted ; to those who have 
 already committed some offence; and to those who, being 
 destitute of protectors and resources, are a prey to all the seduc- 
 tions of want. These classes, so absolutely neglected in the 
 greater number of states, become, in consequence, the pupils of 
 crime. 
 
 A man of rare beneficence, the Chevalier Paulet, created at 
 Paris an institution for more than two hundred children whom 
 he took from among the very poorest class. His plan rested upon 
 four principles : To offer the pupils many objects of study and of 
 labour, and to leave them the greatest possible latitude of taste ; 
 to employ them in mutual instruction, by offering to the scholar, 
 as the highest reward of proficiency, the honour of becoming in 
 his turn a master ; to employ them in all the domestic services of 
 the establishment, for the double purpose of instruction and 
 economy ; to govern them by means of themselves, by putting 
 each pupil under the inspection of an older one, in a way to 
 render them securities for each other. In this establishment, 
 everything breathed an appearance of freedom and gaiety ; there 
 was no punishment except compulsive idleness, and a change of 
 dress.* The more advanced pupils were as much interested in 
 the general success as the founder himself; and the whole was 
 going on prosperously, when the revolution, amid the general 
 overthrow, swallowed up also this little colony. 
 
 A greater extent might be given to institutions of this kind, 
 and their expensiveness might be diminished, either by teaching 
 a great number of trades, or by retaining the pupils tiU the age 
 of eighteen or twenty, so that their labour might contribute to 
 discharge the expense of their education, and to aid in that of 
 the younger pupils. Schools upon this plan, instead of being an 
 expense to the state, might become lucrative enterprises. But 
 
 * The common punishments were called, one the Utile idleness, and the 
 other the great idleness. What conld be more ingenious than to give to 
 punishments the very name and character of a vice ? It is obvious what 
 a salutary association of ideas this was calculated to produce. 
 
PKINCIPIES OF THE PENAL CODfi. 443 
 
 the pupils themselves should be interested in the labour, by 
 aUowing them a fair rate of wages, to be paid them at leaving 
 the school. 
 
 CHAPTEE XXI. 
 
 General Precautions against Abuses of Authority. 
 
 Let us consider some of the means which a government may 
 employ to prevent abuses of authority on the part of those to 
 whom it intrusts portions of its power. 
 
 Constitutional law has its direct and its indirect legislation. 
 Its direct legislation consists in the establishment of certain 
 magistracies, among which aU the political power is divided- 
 That subject is not included in this treatise. Its indirect legis- 
 lation consists in general precautions, of which the object is to 
 prevent misconduct, incapacity, or malversations among those who 
 hold principal or subordinate stations in the administration. 
 
 A complete enumeration of these indirect means will not be 
 attempted. It wiU be enough to direct attention towards this 
 object, and thus to restrain the enthusiasm of certain political 
 writers, who, from having got sight of one or two of these means, 
 have flattered themselves that they have perfected a science, of 
 which, in fact, they have hardly drawn the outlines. 
 
 I. The Division of Power into different Branches. — Every divi- 
 sion of power is a refinement suggested by experience. The most 
 natural plan, the first that presents itself, is to place the whole 
 administration in the hands of a single person. Command upon 
 one side and obedience upon the other is a kind of contract of 
 which the terms are easily arranged, when he who is to govern 
 has no associate. Among all the nations of the East, the fabric 
 ■ of government has continued to preserve its primitive structure. 
 The monarchic power descends without division, stage by stage, 
 ftom the highest to the lowest, from the great Mogul to the 
 simple Havildar. 
 
 "When the King of Siam heard the Dutch Ambassador speak 
 
450 PEDsrcrPLES or the penal code. 
 
 of an aristocratic government, lie burst into laughter at the idea 
 of, such, an ahsurdity. 
 
 It is enough merely to mention this principal means. To exa- 
 mine into ho-w many branches -the government ought to be 
 divided, and which of all the possible divisions is the one that 
 merits the preference, would be to compose a treatise upon con- 
 stitutional law. I shall only remark that this division ought not 
 to result in separate and independent powers ; for that would 
 bring on a state of anarchy. Some supreme authority, superior 
 to all, must always be acknowledged, which does not receive 
 law, but which gives it, and which has power over the very rules 
 that regulate its own mode of action. 
 
 II. The Distribution of pmrtioular Branches of Power among 
 several Go-participators. — In the provinces of Eussia, previous to 
 the regulations of Catherine II., all the different branches of 
 power — military, fiscal, and judicial — were intrusted to a single 
 body, a single council. So far, the constitution of these subordi- 
 nate governments sufficiently resembled the form of Oriental des- 
 potism ; but the power of the governor was somewhat limited by 
 the powers of the council, and in this respect the form approached 
 to that of an aristocracy. At present, the judicial power is 
 separated iato many branches, and each branch is divided among 
 many judges, who exercise their functions conjointly. A law has 
 been established of the nature of the English Saleas Corpus, for 
 the protection of individuals against arbitrary imprisonment, and 
 a governor has no more power of doing harm than a governor of 
 Barbadoes or Jamaica. 
 
 The advantages of this division are principally these : — 
 
 1st. It diminishes the danger to be apprehended from precipi- 
 tation. 
 
 3nd. It diminishes the danger to be apprehended from ignorance. 
 
 3rd. It diminishes the danger to be apprehended from want of 
 probity. 
 
 This last advantage, however, can hardly be attained, except 
 where the number of co-participators is very great, — so great 
 that it wiU be difficult to separate the interests of the majority of 
 them from the interests of the people at large. 
 
PEINCrPLES OP THE PENAl COBB. 451 
 
 The division of powers has also disadvantages, since it intro- 
 duces delays and foments disputes which may produce the disso- 
 lution of the established gOTernment. The evil of delays maybe 
 obviated by graduating the division, according as the functions to 
 which it is applied admit of more or less deliberation. In this 
 point of view, the legislative power and the military power form 
 the two extremes ; the first admitting the greatest dejliberation, 
 the second demanding the greatest celerity. As to the dissolu- 
 tion of the government, that is an evil only upon one or the other 
 of two suppositions : — 1st, That the new government is worse 
 than the old one ; or 2nd, That the transition from one to the 
 other is marked by calamities and civil wars. 
 
 The greatest danger arising from plurality, whether ia a tri- 
 bunal or an administrative council, is the diminution of responsi- 
 bility. A numerous body can count upon a sort of deference on 
 the part of the public, and allows itself to commit wrongs which 
 an individual administrator would not dare to perpetrate. Where 
 so many share in the act, the odium of it is shifted from one to 
 another, and rests nowhere. All did it ; no one avoTvs it. If 
 the censure of the public is excited, the more numerous the cen- 
 sured body is, the more it fortiflesitself against external opinion, 
 the more it tends to form a state within a state, a little com- 
 munity which has its own particular spirit, and which protects 
 by its applauses those of its members who encounter the reproaches 
 of the public. 
 
 Unity in all cases in which it is possible — ^that is, in all cases 
 which do not demand a concentration of knowledge and a concur- 
 rence of wiUs, as in a legislative body — unity is advantageous, 
 because it puts the whole responsibility, whether legal or moral, 
 upon the head of an individual. He does not share the honour 
 of his actions with anybody, and he bears the whole burden of 
 the blame; he sees himseK alone against aU, having no other 
 support but the integrity of his conduct, no other defence but the 
 general esteem. Though he were not honest by inclination, he 
 would become so, as it were, in spite of himself, by means of a 
 position in which his interest is inseparable from his duty. 
 
 Besides, unity in subordinate employments is a certain means 
 
 G G 2 
 
453 miNCiPLES OF the penal code. 
 
 of discovering in a short time the real capacity of individuals. A 
 narrow and unsound judgment may conceal itself a long while, 
 amid a numerous company ; but if it acts alone, and upon a public 
 theatre, its insufficiency is soon, unmasked. Men of moderate or 
 small talents, always ready to solicit places where they can take 
 refuge under the wing of some able assistant, would be afraid to 
 expose themselves to a dangerous career, in which they would 
 soon betray their want of ability. 
 
 But there are some cases in which it is possible to unite the 
 advantages of a collective body with the responsibility of a single 
 person. 
 
 In subordinate councils, there is always an individual who pre- 
 sides, and upon whom the principal confidence rests. Let him 
 have associates, in order that he may profit by their advice, and 
 that there may be witnesses against him, in case he abuses his 
 trust. But these purposes do not require that his associates 
 should be equal to him in authority, nor even that they should 
 have the right of voting. It is only necessary that the chief 
 should be obliged to communicate to them all that he intends to 
 do, and that each councillor should make a declaration in writing 
 touching each administrative act, expressing an approval of it or 
 a disapproval. This communication ought generally to take 
 place before the issue of orders for carrying his designs into exe- 
 cution; but in those cases which require an extraordinary 
 despatch, it would be enough were it made immediately after. 
 "Would not such an arrangement obviate, in general, the danger 
 of dissensions and delays ? 
 
 III. Putting the Power of Removal into different lumds from the 
 Power of Appointment. — This idea is borrowed from an ingenious 
 pamphlet published in America, in 1778,* by a member of the 
 convention appointed to examine the form of government pro- 
 posed for the state of Massachusetts. 
 
 Our pride is interested in not condemning a man of our own 
 choice. Independently of affection, a superior wiU be less dis- 
 posed to hear complaints against an officer of his own appoint- 
 ment, than against an indifferent person, and wiU have a pre- 
 • Reprinted in AlmorCs Remembrancer, No. 84, p. 223. 
 
rKINOIPIES OF IHE PEIfAL CODE. 453 
 
 judice of self-love in his favour. This consideration will help to 
 explain those abuses of power, so common in monarchies, where 
 a subaltern is intrusted with great authority, of which he is not 
 obliged to render any account, except to the very person who gave 
 him his office. 
 
 In popular elections, the part which each individual has in the 
 nomination of a magistrate, is so very trifling, that this kind of 
 illusion does not exist. 
 
 In England, the choice of ministers belongs to the king ; but 
 the parliament has the actual right of dismission, whenever a 
 majority votes against them. However, this is only an indirect 
 application of the principle. 
 
 IV. Not permitting Governors to remain a long time in the same 
 Districts. — This principle has aparticular application to important 
 commands in distant provinces, and especially those detached from 
 the body of the empire. 
 
 A governor armed with great power, if he is allowed time for 
 it, may attempt to establish his independence. The longer he 
 remains in office, the more can he strengthen himself by creating a 
 party of his own, or by uniting himself to one of the parties which 
 existed before him. Thence originates oppression towards some, 
 and partiality towards others. And though he has no party, he 
 may be guilty of a thousand abuses of authority, without any one 
 daring to complain to the sovereign. The duration of his power 
 gives birth to fears or hopes, both of which equally favour him: 
 He makes himself creatures, who look up to him as the sole dis- 
 tributor of favours ; while those who suffer, fear to suffer more if 
 they offend a ruler who is likely to retain his power for a long 
 time. 
 
 The disadvantage of rapid changes consists in removing a man 
 from his employment so soon as he has acquired the knowledge 
 and experience of affairs. New men are liable to commit faults of 
 ignorance. This inconvenience would be paUiated by the esta- 
 blishment of a subordinate and permanent council, which should 
 keep up the course and routine of affairs. What you gain is the 
 diminutionof apower, whichmaybe turned against yourself; what 
 you risk is a diminution in the skill with which the office is 
 
454 PEI3JCIPIES OF THE Ei)JfAL CODE. 
 
 executed. There is no parity between these dangers, when revolt 
 is the evil apprehended. 
 
 To avoid giving umbrage to individuals, this arrangement ought 
 to be permanent. The change, at regular periods, should be 
 regarded as fixed and necessary. If it were limited to particular 
 cases, it might serve to provoke the evil which it is intended to 
 prevent. 
 
 The danger of revolt on the part of provincial governors is 
 unknown except in feeble and badly constituted governments. 
 In the Eoman empire, from Csesar down to Augustulus, we see 
 a constant succession of rebellious governors and generals. This 
 was not owing to any neglect of the precaution here proposed, for 
 new appointments were frequent ; but because the applicatibn of 
 it was not judicious, or because there, was a want of vigUanoe 
 and firmness, or to .some other cause of a similar kind. 
 
 The want of a permanent arrangement of this sort, is plainly 
 the cause of the continual revolutions to which the Turkish 
 empire is subject ; and nothing more evidently shows the stu- 
 pidity of that barbarous court. 
 
 If there is any European government which ought to adopt 
 this policy, it is Spain in her American, and England ia her East 
 Indian establishments. 
 
 In the more civilized states of Christendom, nothing is more 
 imcommon than the revolt of a governor. That of Prince 
 Gagarin, Governor of Siberia, under Peter I., is, I believe, the 
 only example that can be fiited in the twib last centuries, and that 
 happened in an empire which had not yet lost its Asiatic cha- 
 racter. The revolutions which have broken out in Europe have 
 originated from a more powerful and a more respectable principle, 
 opinions, public feeHng, the love of liberty.* 
 
 V. Renewal of the Governing Bodies ly Rotation. — The reasons 
 for not allowing a provincial governor to remain a long time in 
 office, all apply with stiU. more force to a couacU. or a ■ directory. 
 Mate them permanent, and if they agree among themselves with 
 
 * This principle has been judioiously adopted as respects the sit- 
 pendiary magistrates in the British West Indies. They remain in one 
 district only for a limited time. — Translator, 
 
PIUNCIPLES OP THE PENAL CODE. 455 
 
 respect to tte generality of their measures, it is probable that 
 among those measures there will be many of which the object U 
 to promote their own interest or that of their friends, at the 
 expense of the community. If they disagree, and are afterwards 
 reconciled, it is probable that the public will pay the cost of 
 their reconciliation. On the other hand, if a certain number are 
 dismissed at regular periods, if there are abuses, you have a 
 chance to eee them reformed by the new comers, before they have 
 been long enough in office to be corrupted by their associates. 
 A part should always be left, so that the course of affairs may 
 go on without interruption. Ought the part reserved to b& 
 larger or smaller than the part renewed ? If it is larger, there 
 is reason to fear that the old system of corruption may be still 
 kept up in full vigour ; if it is smaller, there is reason to fear 
 that a good system of administration may be embarrassed by ca- 
 pricious innovations. However this may be, it is plain that the 
 mere right of renewal will hardly ever answer its purpose, espe- 
 cially if the power of fiHirig vacancies belongs to the body itself. 
 This right would never be exercised, except upon extraordinary 
 occasions. 
 
 Ought those whose places are vacated to be ineligible for a 
 time or for ever ? If it is only for a time, it wiU presently 
 happen that at the end of that time they will always be re- 
 elected, and the council wUl become a close body. If they are 
 never re'eligible, the community will be deprived of the talents 
 and experience of its ablest servants. All things considered, this 
 means seems to be only an imperfect substitute for others which 
 will be presently mentioned, and especially for publicity in aU 
 proceedings and accounts. 
 
 The arrangement of rotation was long ago adopted in England 
 by the great companies of commerce, and some years since it 
 was introduced into the direction pf the East India Company. 
 
 This political view is not the only one which rotation in office 
 has been intended to answer. It has been ofte?i introduced for 
 the mere object of producing a more sqmL distribution of the 
 privileges which appertain to office. 
 
 Harrington's celebrated treatise on politics, entitled Oceana, 
 
456 PEnrciPLEs of the penal code. 
 
 depends almost entirely upon a system of rotation among the 
 members of tlie government. Harrington was a man of talent," 
 but one who did not grasp the whole science of government. 
 Having seized a single idea he developed it, applied it to every- 
 thing, and saw nothing beyond it. So it is in medicine: the less 
 the extent of the art is perceived the more one is inclined to 
 believe in an elixir of life, a universal remedy, a marvellous 
 secret. Classification is useful in order to extend the attention 
 successively to every means. 
 
 VI. The Reception of Secret Informations. — Everybody knows 
 that at Venice secret informations were admitted. There were 
 boxes placed here and there around the palace of St. Mart, the 
 contents of which were regularly examined by the state inqui- 
 sitors. It is pretended that in consequence of these anonymous 
 accusations persons were seized, imprisoned, sent into exile, or 
 even punished with death without any further proof. If this be 
 true, then there was nothing more salutary or more reasonable 
 than the first part of the institution, nothing more pernicious 
 and abominablei than the second. The arbitrary tribunal of the 
 inquisitors has cast a merited disgrace upon the Venetian govern- 
 ment, which must have been wise in other respects, since it 
 maintained itself for so long a time in a state of tranquillity and 
 prosperity. 
 
 It is a great misfortune that a good institution should have 
 been connected with a bad one; for all minds have not tho 
 prismatic power of disuniting good from evil. "Where would be 
 the harm of receiving secret informations, even though they were 
 anonymous in the first instance ? Certainly one hair of a single 
 head ought not to be touched upon the mere ground of a secret 
 information, nor should the slightest inquietude be given to a 
 single individual; but, with this restriction, why forego the 
 advantage of such informations ? The magistrate can judge 
 whether the object denounced merits his attention. If it does 
 not merit it he need do nothing in the matter. But, if it seems 
 to be of importance, let him give notice to the informer to pre- 
 sent himself in person. After examining the facts, if the in- 
 former is found to be mistaken, he can be dismissed with praise 
 
PBUfCIPLES OF THE PENAL CODE. 457 
 
 for his good intentions, and hisname may be kept secret. If the 
 inforiqer has brought a charge wilfully and maliciously false, his 
 name and his accusation ought to be communicated to the party 
 accused. If the denunciation is well founded, let a judicial pro- 
 secution be commenced, and let the informer be obliged to appear 
 and give his evidence in public. 
 
 If it be asked iipon what principle such an institution can be 
 useful, the answer is, precisely on the principle of the vote by ballot. 
 In the course of the prosecution the defendant ought certainly to 
 be informed what witnesses will testify against him ; but where 
 is the necessity of his knowing it before the prosecution is begun ? 
 IJn that case a witness who may have something to fear on the 
 part of the defendant, would not be willing to expose himself to 
 a certain inconvenience for the chance of rendering a doubtful 
 service to the public. Hence it is that offences so frequently 
 remain unpunished, because no one is willing to make personal 
 enemies without any certainty of serving the public. 
 
 I have enumerated this means under the head of abuses of 
 authority, because it is against men in place that its efficacy is 
 most marked; since, in that case, the supposed power of the delin- 
 quent is an additional weight in the balance of dissuasive motives. 
 
 The resolution to receive secret and even anonymous informa- 
 tions would be good for nothing, unless it were publicly known; 
 but once known, the fear of these informations would soon 
 render the occasions of them more rare, and would diminish 
 their number. And upon whom would the fear fall ? Only 
 upon the guilty, and upon those who were plotting to become 
 so ; for with publicity of procedure, innocence could never 
 be in danger ; and the malice of false accusers would be con- 
 founded and punished. 
 
 VII. The Right of Petitioning the Siipreme Authority. — 
 Though informations reached only the minister, they would have 
 their use ; but to insure their utility, it is essential that they 
 should come to the knowledge of the sovereign. 
 
 The great Frederic received letters, like a private individual, 
 frorq. the meanest of his subjects, and the answer was often 
 written with Ms own hand. This fact would be incredible were 
 
458 PEiNCrpiES OP the penal code. 
 
 it not perfectly 'well attested. But we are not to conclude from 
 this example that the same thing is possible in aU governments. 
 
 In England, every one has a right to present a petition to the 
 king ; but the fate of these petitions, handed the same moment 
 to a gentlemen in waiting, has become proverbial ; they serve the 
 maids of honour for hair-papers. It may well be imagined, after 
 this, that these petitions are not very frequent ; but neither are 
 they very necessary in a country where the subject is protected 
 by laws which do not depend upon the sovereign. There are 
 other means for a private man to obtain justice ; there are other 
 channels of information for the prince. It is in absolute monar- 
 chies that it is essential to maintain a communication, constantly 
 open, between the subjects and the monarch; it is necessary 
 that the subject may be sure of protection ; it is necessary to 
 assure the monarch against being duped by his ministers. 
 
 The people may be called canaille, populaoei, or what you will ; 
 but the prince who refuses to hear the lowest individual of that 
 populace, so feir from augmenting his power by doing so, in fact 
 dimittishes it. From that moment he loses the capacity of self- 
 direction, and beoomies an instrument in the hands of those who 
 call themselves his servants. He may imagine that he does as 
 he pleases, that he determines for himself ; but in fact, it is they 
 who determiue for him ; for to determine all the causes of a 
 man's actions, is to determine all his actions. He who does not 
 see and does not understand, except as it pleases those who sur- 
 round him, is subject to all the impulses which they choose to give. 
 
 To put an unlimited confidence in his ministers, is to put an 
 unlimited confidence in those who have the greatest interest 
 to abuse it, and the greatest facility for doing so. 
 
 As to the minister himself, the more honest he is, the less will 
 he need such a confidence; and it may be affirmed without 
 paradox, that the more he deserves it, the less he wiU desire to 
 possess it. 
 
 Vm. Liberty of the Press. — Hear advice from every quarter, 
 and you may be the better for it ; you cannot be the worse. 
 Such is the decision of simple good sense. To establish the 
 freedom of the press, is to admit the advice of everybody. It is 
 
PKINCIPLES OF THE PENAI CODE. 459 
 
 true that upon most occasions tte public judgment is heard, not 
 before the measure is determined upon, but only after it is exe- 
 cuted. Still, this judgment is always useful as regards all 
 measures of legislation which can be rectified, and all executive 
 acts which are of a nature to be repeated. The best advice given 
 to a minister in a private manner may be thrown away ; but good 
 advice given to the public, if it does not avail at one time, may 
 avail at another ; if it does not avail to-day, it may avail to- 
 morrow ; if it is not presented ia a becoming shape, it may re- 
 ceive from another hand ornaments that will make it attractive. 
 Instruction is a seed which requires to be planted in a greab 
 variety of soils, and to be cultivated with patience, because its 
 fruits are often a long time in ripening. 
 
 Freedom of the press is much more powerful than the right of 
 petition in freeing the sovereign from the control of favourites. 
 Whatever may be his discernment in the choice of his ministers, 
 he can only select from a small number of candidates, whom the 
 chances of birth and fortune present to his choice. "It may be 
 reasonably supposed that there aie other men more enlightened 
 than these; and the gi'eater power he attains of knowing such 
 men, the more he increases his power and his liberty of selection. 
 
 But opinions may be given with insolence and passion ; instead 
 of limiting itself to the examination of measures, criticism is ex- 
 tended to persons. And in fact, how much address is necessary 
 to keep these two things distinct? How can a measure be cen- 
 sured without attacking, to a certain extent, the judgment or the 
 probity of its author? This is the stumbling-block ; this is the 
 reason why the liberty of the press is as uncommon as its advan- 
 tages are manifest. All the fears of self-love are against it. Tet 
 Joseph II. and Frederic II. had the magnanimity to establish 
 it. It exists in Sweden; it -exists in England; it might exist 
 everywhere, with such modifications- as would prevent its greatest 
 abuses. 
 
 If, according to the usages of the government, or owing to 
 particular circumstances, the sovereign cannot admit a free 
 examination of his administrative acts, he ought at least to 
 permit the examination of the laws. Though he claims for 
 
460 PEUiTCIPLES OF THE PENAL CODE. 
 
 himself the privilege of infallibility, lie need not extendi it tir 
 his predecessors. If he is so jealous of the supreme power as ta 
 extort respect for everything that has been touched by the roya\ 
 sceptre, he might at least allow a free discussion of merely 
 Bcientific subjects, such as principles of law, of procedure, and of 
 subaltern administration. 
 
 Even granting that the liberty of the press may have incon- 
 veniences, as respects pamphlets and handbills which may be 
 scattered among the people, and addressed to the ignorant part of 
 a nation as well as to the enlightened, the same reason cannot 
 apply to serious and lengthy works, to books which can have but 
 a certain class of readers, and which, as they are unable to pro- 
 duce an immediate effect, always afford opportunity for preparing 
 an antidote. 
 
 Under the old French regime, it was enough that a book of 
 moral science was printed at Paris, to inspire a prejudice against 
 it. The Instructions of the Empress of Russia to the Assembly 
 of Deputies, respecting the compilation of a code of laws, were 
 prohibited in Erance. The style and the sentiments of that 
 performance appeared too popular to be tolerated in the French 
 monarchy. 
 
 It is true that in France, as elsewhere, negligence and incon- 
 sistency palliated the evils of despotism. A foreign title served 
 as a passport to genius. The rigour of the censorship only availed 
 to transfer the trade in books to the bordering states, and to render 
 more bitter the satire it was intended to suppress. 
 
 IX. Publication of the Reasons and Facts on which the Laws 
 and Administrative Acts are founded. — This is a necessary part 
 of a generous and magnanimous policy, and an indispensable 
 attendant upon the liberty of the press. The freedom of the 
 press is a debt which rulers owe to the people ; to publish the 
 reasons of their laws and acts is a debt they owe to themselves. 
 If the government disdains to inform the nation of its motives 
 upon important occasions, it thereby announces that it chooses to 
 owe everything to force, and that it counts as nothing the opinions 
 of its subjects. 
 
 The partisan of arbitrary power will not agree to this. He is 
 
PEINCIPIES OP THE PENAL COLE. 461 
 
 unwilling to enlighten the people, while he despises them because 
 they are not enlightened. You are not capable of judging, he 
 says, because you are ignorant; and we will keep you ignorant, 
 that you may not be capable of judging. This is the endless 
 circle in which he moves. What is the consequence of this 
 vulgar policy? Discontent spreads little by little, till at length 
 it becomes general, founded sometimes upon false and exaggerated 
 imputations, which gain credit because they are not examined 
 and discussed. The minister complains, of the injustice of the 
 public, without remembering that he has not afforded to it the 
 means to be just, and that a false interpretation of his conduct is 
 a necessary consequence of the mystery with which it is covered. 
 To be systematic and consistent, there are but two ways of acting 
 with men, — absolute secrecy, or perfect frankness : the complete 
 exclusion of the people from the knowledge of affairs, or making 
 that knowledge as thorough as possible ,- preventing them from 
 forming any judgment, or putting them into a condition to form 
 the most, enlightened judgment ; to treat them like children, or 
 to treat them like men. Between these two plans, a choice must 
 be made. 
 
 The first of these plans was followed by the priests in ancient 
 Egypt, by the Brahmins in Hindostan, by the Jesuits in Paraguay. 
 The second is established by practice in England, and by law in 
 the TJnited States of America. The greater part of European 
 governments float incessantly between one and the other, without 
 daring to attach themselves exclusively to either ; aiid they are 
 constantly in contradiction with themselves, from a desire to have 
 industrious and enlightened subjects, and from a fear of encou- 
 raging a spirit of examination and discussion. 
 
 In many branches of administration it would he useless, and it 
 might be dangerous, to pubjish the reasons of measures before- 
 hand. But those cases ought to be distinguished in which it is 
 necessary to enlighten public opinion, to prevent it from being 
 misled. In matters of legislation, this principle is always appli- 
 cable. It may be laid down as a general rule that a law ought 
 never to be made without some reason e:^ressed or understood. 
 For what is a good law but a law for which good reasons can he 
 
462 PEINCIPLES OF THE PENAI CODE. 
 
 given ? Of coiirse, there must have been some reason, good or 
 bad, for making it, since there is no effect without a cause. But 
 oblige a minister to give his reasons, and he will be ashamed not 
 to have good ones to give ; he wiU be ashamed to offer you false 
 coin if obliged to present a touch-stone ' along with it, by which 
 it can be tried. 
 
 This is a means by which a sovereign may continue to reign 
 after death. If there are good reasons for his laws, he gives them 
 a support which cannot fail. His • successors will be obliged to 
 maintain them through a feeling of self-respect ; and the more 
 good he has done in his lifetime, the more will he contribute to 
 the happiness of posterity. 
 
 X. To forbid all Arbitrary Proceedings, — "Clotaire made a 
 law," says Montesquieu, " that no person accused of crime should 
 be condemned without a hearing ; a law which indicates a con- 
 trary practice in some particular case, or among some barbarous 
 people." — Spirit of Laws, chap. xH. 
 
 Montesquieu did not dare to tell the whole. Did he write that 
 passage without recollecting the Lettres de Cachet, and the admini- 
 stration of the police, such as it existed in his times ? A lettre de 
 cachet may be defined, an order to punish without proof for an 
 act forbidden by no law. 
 
 It was in France and Venice that this abuse was carried to the 
 highest pitch. These two governments, mUd in other respects, 
 gained themselves a very bad reputation by this piece of foUy. 
 They exposed, themselves to imputations which were often un- 
 founded, and to the re-aetion of alarm : for there are precautions 
 which, by the terror they inspire, produce the very danger they 
 aim to prevent. Behave well, it is said, and the government 
 wiU not be your enemy. Perhaps so ; but how can I be certain 
 of it ? I am hated by the minister, or by his valet, or by his 
 valet's valet. If I am not to-day, I may be to-morrowi or some- 
 body else may be, and I may be taken for that somebody else* 
 It is not my conduct upon which my safety depends ; it is thfe 
 opinion of my conduct entertained by men more powerful than I. 
 Under Louis XV., lettres de cachet were an article of trade, sold 
 by ministers and mistresses to gratify private hatreds. If that 
 
PEINOIPIES 01' THE PENAL CODE. 463 
 
 could happen under a government wHcli had the reputation of 
 mildness, what fruits of such a law might we expect in less civilized 
 countries? If justice and humanity have not influence enough, 
 the pride of governments, at least, ought to induce them to aholish 
 such remnants of barbarity. 
 
 Such expedients may be palmed off under the cover of maxims 
 of state; but lately this pretext has lost its magic. The first 
 thought they suggest is the idea of the incapacity and weakness 
 of those who employ them. If you dared to hear what this pri- 
 soner has to say, you would not shut his mouth ; if you compel 
 hini to be sUent, it is a proof that you fear him. 
 
 'XI. The Exercise of Power aooording to certain Rules and For- 
 malities. — This is another regulation with respect to subordinate 
 oficers, not less applicable to absolute monarchies than to mixed 
 governments. If the sovereign thinks it for his interest to be 
 independent of the laws, there is no reason for extending the 
 same independence to all his agents. 
 
 The laws which limit subordinate officers in the exercise of 
 their power, may be divided into two classes : to the first class 
 belong those laws which limit the cases in which the exercise of 
 such or such a power is permitted ; to the second, those which 
 determine the formalities according to which its exercise is to be 
 regulated. These cases and these formalities ought to be speci- 
 fically enumerated in the law ; and this being done, the citizens 
 ought to be informed that these are the cases, and the only cases, 
 in which theif security, their liberty, their property, or their 
 honour can be brought into danger. Thus, the first law at the very 
 beginning of a code ought to be a general law in behalf of liberty, 
 a law which restrains delegated powers, and limits their exercise to 
 such or such particular occasions, for such or such specific causes. 
 
 Such was the intention of Magna Charta, and such would have 
 been its effect, but for the unlucky want of precision in some of its 
 expressions, as lex terra, &c. ; for aU was made to depend upon an 
 imaginary law, which restored all to uncertainty, since those in 
 search of that law always referred back to the customs of ancient 
 times, and sought examples and authorities among the very abuses 
 which it was intended to prevent. 
 
464 PEINCIPLES OP THE PENAI CODE. 
 
 XII. The MtalUshment of the Right of Association, that is, 
 of Assemblies of the Citizens to express their sentiments and their 
 wishes lipon Publie Measures. — Among the rights 'which a people 
 ought to reserve, when they establish a government, this is the 
 chief, since it is the foundation of all the rest. Yet it is hardly 
 necessary to mention it here, for to the people who possess it, it 
 needs no recommendation, and those who possess it not, have hut 
 slight hope of ohtaining it, — for what can induce their govern- 
 ments ever to grant it ? 
 
 At the first view, this right of association seems incompatible 
 with government ; and it is admitted that to establish this right 
 as a means of keeping the government under, would be s^bsurd 
 and contradictory. But the intention is very different. If the 
 smallest act of violence is committed by one or more members of 
 the association, punish it as if it had been committed by any other 
 individuail. If you perceive that you are not powerful enough to 
 punish it, it is a proof that the association has made a progress 
 it could not have made without a just cause ; so that in fact it is 
 either not an evil, or a necessary evU. It is taken for granted 
 that you have a public force, an authority organized in all its 
 parts ; if, then, these associations have become strong enough to 
 intimidate you, in the midst of all your regular means of power, 
 if no associations have been formed upon your side, yours, who 
 have so many means at your command to obtain a superiority in 
 that respect, — is it not an infallible sign that the calm and con- 
 siderate judgment of the nation is againstyou? This being granted, 
 what reason can be given for keeping the government in the same 
 state, — for not satisfying the public wish ? I know of none. 
 Doubtless, a. nation, since it is composed of men, does not possess 
 the privilege of infallibility ; a nation may be deceived, as well 
 as its rulers, as to its true interests ; nothing is more certain ; but 
 if a great majority of the nation is seen upon one side, and its 
 government upon the other, may it not be presumed, in the first 
 instance, that the general discontent is well founded ? 
 
 Far from being a cause of insurrection, I look upon these asso- 
 ciations as one of the most powerful means of preventing that evil. 
 Insurrections are the convulsions of weakness, finding strength in 
 
PEINCIPLES OP THE PENAi CODE. 465 
 
 a momentary despair. They are the efforts of men who are not 
 allowed to express their feelings, or 'whose projects could not 
 succeed if they were known. Plots which are in opposition to 
 the general sentiment of the people can only succeed by surprise 
 and by violence. Those who plan them cannot hope for success, 
 except by forcible means. But those who believe that the people 
 are on their side, those who flatter themselves that the general 
 opinion wOl secure their triumph, why should they use violence ? 
 Why expose themselves to manifest danger without advantage ? 
 I am persuaded that men who had a perfect liberty of association, 
 and who could exercise it under protection of the laws, would 
 never have recourse to insurrection, except in those rare and 
 unfortunate cases in which rebellion has become necessary ; and 
 whether associations be permitted or forbidden, open and general 
 rebellions never wUl take place until they are necessary. 
 
 The associations which were openly entered into in Ireland in 
 It 80 did not produce any evil, and even served to maintain tran- 
 quillity and security, though that country, scarce semi-civilized, 
 was distracted by all the possible causes of a civil war. 
 
 I even believe that associations might be permitted, and might 
 become one of the principal means of government, in the most 
 absolute monarchies. This kind of states are more troubled than 
 others by risings and revolts. Everything is done by sudden move- 
 ments. Associations would prevent these disorders. If the sub- 
 jects of the Koman Empire had been in the habit of combining 
 together, the empire and the lives of the emperors would not have 
 been constantly put up at auction by the Preetorian Guards. 
 
 Por the rest, I know very well that slaves cannot be allowed to 
 assemble. Too much injustice has been done them not to have 
 everything to fear from their ignorance or their resentment. It is 
 not in the American islands, it is not in Mexico, that the. people 
 can be armed and allowed to form associations ; but there are 
 states in Europe in which this strong and generous policy might 
 be safely adopted. ■ 
 
 I admit that there is a degree of ignorance which renders asso- 
 ciations dangerous. This proves that ignorance is a great evil ; it 
 does not prove that associations are not a great good. Besides, the 
 
466 PEINCIPLES OF THE PENAL CODE. 
 
 measure itself may operate as an antidote against its own bad effect^ 
 In proportion as an association extends, the foundation on which it 
 rests is examined, the pubUc is enlightened, and the government 
 may avail itself of aU these means to spread the knowledge of facts 
 and to dissipate errors. Liberty and instruction go hand in hand ; 
 liberty facilitates the progress of knowledge, and knowledge 
 restrains the extravagancies of liberty. 
 
 I do not see why the establishment of this right need give dis- 
 quiet to governments. There is no government which does not 
 fear the people ; which does not think it necessary to consult their 
 will, and to accommodate itself to their opinions ; and it would 
 seem that the most despotic are the most timid. "What sultan is 
 BO tranquil, so secure in the exercise of his power, as a British 
 king ? The janissaries and the populace inspire the same fear in 
 the Seraglio that the Seraglio inspires among the janissaries and 
 the popidace. At London, the voice of the people makes itself 
 be heard by lawful assemblages; at Constantinople, it bursts 
 forth in outrage. At London, the people express their feelings 
 in petitions ; and at Constantinople by setting the city on fire. 
 
 Poland, perhaps, may be brought forward as an objection — a 
 country in which associations seem to have produced so many 
 evils. But that is a mistake. The Polish associations sprung 
 from anarchy, they did not produce it. Besides, in speaking of 
 this means as a restraint upon government, there is supposed to 
 be a government established ; it is offered as a remedy, not as 
 an independent means. 
 
 It may even be added, that in states where this right exists, 
 circumstances may occur in which it will be well, — not to 
 suspend it entirely, — but to regulate its exercise. There is no 
 need of an absolute and inflexible rule. We have seen the 
 British Parliament, during the late war with France, restrain 
 the right of assembling, and forbid meetings for a political object 
 unless that object were publicly announced, and unless the meet- 
 ing were held under the authority of a magistrate who had 
 power to dissolve it; and these restrictions were imposed at the 
 very time that the citizens were called upon to form military 
 corps for the defence of the state, and whilst the government 
 
PEINCIPLES OF THE PENAL CODE. 467 
 
 announced the most noble confidence in tlie general spirit of the 
 nation. 
 
 Though these restraints have ceased, everything remains in 
 the same condition ; and it might be supposed that the restric- 
 tive law still existed. The reason is, that a people sure of its 
 rights enjoys them with moderation and tranquillity. If they 
 are ever abused, it is because they are thought to be in danger. 
 The precipitation of the people is the effect of their fear. 
 
 CHAPTEE XX] £. 
 
 Means of Diminishing the Bad Effeei of Offences. General 
 MesuU and Conch sion. 
 Thu general result of the principles hiid down in this treatise 
 upon the subject of penal legislation, offers a happy perspective, 
 and well-foimded hopes of diminishing offences ssnd of diminish- 
 ing punishments. At first, this subject presents to the mind 
 only sombre ideas, images of suffeiing and of terror. But 
 while occupied with this class of evils pamful feelings soon give 
 place to agreeable and consoling sentiments, when it is disco- 
 vered that the human heart is not, csirupted by any inherent 
 and incurable perversity; that the raultiplicity of offences is 
 principally owing to errors cf legislalion easy to be reformed ; 
 and that even the evil that results fi om them is susceptible of 
 being repaired in various ways. 
 
 This is the great problem of penal legislation: — 1st, To re- 
 duce all the evil of offences, as far as possible, to that kind 
 which can be cured by a pecuniary compensation. 2nd, To 
 throw the expiiuse of this cure upon the authors of the evil, or, 
 in their defr^ult, upon the public. "What can be done in this 
 respect is much more than is generally imagined. 
 
 The vrord c^lre is employed in order to present the party 
 injured, whether it be an individual or the community, under 
 the character of a patient suffering from a disorder. The com- 
 parison is just, and it points out the procedure best adapted to 
 the end in view, without the intermixture of popular passions, 
 
468' TEINCIPLES OE THE TENAL CODE. 
 
 and of antipathies, whicli ideas of crime are but too apt to 
 awaken, even in legislators themselves. 
 
 There are three principal sources of crime, — incontinence, 
 hatred, and rapacity. 
 
 The offences which spring from incontinence are hardly of a 
 nature to be cured by a pecuniary compensation. This remedy 
 may apply to certain cases of seduction, and even of conjugal 
 infidelity ; but it does not cure that part of the evil which 
 consists in dishonour and the disturbance of family peace. 
 
 The evil effects of other offences are more surely arrested in 
 proportion as the offences themselves are more clearly proved ; 
 but it is to be observed as a remarkable and important singu- 
 larity, that offences of incontinence only become hurtful in pro- 
 portion as they become known. A good citizen should look upon 
 it as his duty to make known an act of fraud ; but he ought to 
 be very much on his guard how he publishes to the world the 
 secret faults of love. To conceal a fraud is to become a party to 
 it; to betray to the public an unknown weakness is to do an evil 
 without compensation ; a wound is inflicted upon the sensibility 
 of those who are exposed to shame, but the thing done is not 
 repaired. I count among the establishments which do honour to 
 the humanity of the present age, those secret asyltmis for accouche- 
 ment, those foundling hospitals which have so often prevented the 
 fatal effects of despair, by covering with the shade of mystery the 
 consequences of a momentary error. The rigour which declares 
 against this indulgence is founded upon the ascetic principle. 
 
 The offences which spring from hatred are often of such a kind 
 that a pecuniary compensation can hardly be applied to them. 
 Compensation, indeed, if in the case of such offences it can take 
 place at aU, is seldom complete ; it cannot undo what is done ; 
 it cannot restore a lost Umb ; it cannot give back a son to his 
 father, a father to his family ; but it may act upon the condi- 
 tion of the party injured; it may furnish him a portion of 
 good in consideration of a portion of evil; and, in regulating 
 the account of his prosperity, it puts an item on the favourable 
 side to balance an item on the other. 
 
 With respect to these offences, it is an essential observation 
 
PKCNCIPLES OF THE PENAL CODE. 469 
 
 that they diminisli from day to day, by the progress of civiliza- 
 tion. It is an admirable thing to observe, in the greater part of 
 European states, how few crimes are produced by the irascible 
 passions, so natural to man, and so violent in the infancy of 
 society. What an object of emulation for those tardy govern- 
 ments which have not yet reached this degree of police, and 
 among whom the sword of justice has not yet been able to banish 
 the stUettoeB of revenge ! 
 
 Eapaeity is an inpxhaustible source of offences. This is the 
 enemy, always active, always ready to seize every advantage, 
 against which a continual war must be carried on ; and this war 
 demands a peculiar kind of tactics, the principles of which have 
 not been weU understood. 
 
 Be indulgent to this passion so long as it confines itself to the 
 use of peaceable means ; but be careful to deprive it of all its 
 unlawful gains. Grow severe towards it in proportion as it 
 breaks out in overt acts, and has recourse to menace and to 
 violence. But stiU. reserve means for farther severity in case it 
 is guilty of such atrocities as arson and murder. It is in the skilful 
 gradation of these preventive means that the penal art consists. 
 
 Do not forget that aU penal police is but a choice of evils. 
 Let the wise administrator of punishments always keep the 
 balance in his hand, and in his zeal to prevent trifling evils let 
 him avoid the imprudence of himself producing great ones. 
 Death is almost always a remedy which is unnecessary or inef- 
 ficacious. It is not necessary as to those whom an inferior punish- 
 ment might deter from crime, or whom imprisonment might 
 restrain ; it has no efficacy as to those who throw themselves, so 
 to speak, in its way as a refiige against despair. The policy of a 
 legislator who punishes every offence with death, is like the 
 pusillanimous terror of a child who crushes the insect he does 
 not dare to look at. But if the circumstances of society, if the 
 frequency of a great offence demand this terrible means, be 
 careful, without aggravating the torments of death, to give it an 
 aspect more dreadful than nature gives it; surround it with 
 mournful accessories, with emblems of crime, and the tragic 
 pomp of ceremony. 
 
470 PEINCIPLES OP THE PENAI CODE. 
 
 But be slow to believe in this necessity for death. By dis- 
 using it as a punishment you will prevent it as a crime ; for 
 when men are placed between two offences it is desirable to give 
 them a sensible interest not to commit the greater. It is desir- 
 able to convert the assassin into a thief; and to give him a reason 
 for preferring a reparable to an irreparable offence. 
 , That which can be repaired is comparatively trifling. Every- 
 thing that can be made up for by a pecuniary indemnity, may 
 soon become as if it had never been ; for if the injured individual 
 always receives an equivalent compensation, the alarm caused by 
 the offence ceases altogether, or is reduced to its lowest term. 
 
 It is an object highly desirable that the fund of compensation 
 due for offences should be amassed from among the delinquents 
 themselves, either by being levied upon their property, or ob- 
 tained from the profits of their compulsory labour. If this were 
 so, security would be the inseparable companion of innocence ; 
 and grief and anguish would faU exclusively to the lot of the 
 disturbers of social order. Such is the point of perfection to 
 which we ought to aspire, though we can only expect to reach it 
 slowly and by continuous efforts. It is enough for me to have 
 pointed out the end. The happiness of attaining it will be the 
 reward of persevering and enlightened governments. 
 
 This means failing, it is necessary to provide compensation 
 either from the public treasury, or by means ot private insurances. 
 
 The imperfections of our laws, in this behalf, are very flagrant. 
 If an offence is committed, those who have suffered from it, either 
 in their persons or their fortune, are abandoned to their fate. 
 But society, which they have contributed to uphold, and which 
 has imdertaken to protect them, owes them an indemnity. 
 
 When an individual, even in his own case, prosecutes a criminal 
 at his own expense, he is not less the defender of the state than 
 he who fights its foreign enemies : the losses which he sustains 
 in defending the public ought to be made up for at the publie 
 
 But when an innocent person has suffered by mistake of the 
 courts, when he, has been arrested, detained, subjected to sus- 
 picion, condemned to aU the misery of a trial and a long confine- 
 
PEINCrPLES OF THE PENAL CODE. 471 
 
 ment, it is not only for his sake, but for her own, that Justice 
 should grant him compensation. Established to repair injuries, 
 does she desire an exclusive privilege to injure ? 
 
 Governments have made no provision for any of these indein- 
 nities. In England, some voluntary Associations have been 
 formed to supply this deficiency. If the institution of insurance 
 is good in one case, it is good in all, with the precautions neces- 
 sary to prevent negligence and fraud.* 
 
 The inconvenience of exposure to fraud is common to all funds, 
 public and private. It may diminish the advantage of insurances 
 without destroying it. Fruit-trees are still cultivated, though 
 they are liable to perish by a thousand accidents. Monts-de- 
 piiief have succeeded ia many countries. An establishment of 
 this kind, set up in , London in the middle of the last century, 
 failed at the beginning, through the. dishonesty of the directors, 
 and this theft left a prejudice which has prevented any subse- 
 quent attempt of the sort. According to the same logic, it might 
 be concluded that vessels are bad instruments of war, because 
 the Royal George, whose ports had been left open, sunk at her 
 moorings. 
 
 Insurances against offences may have two objects : — 1st, To 
 create a fund to indemnify the parties injured, in case the dehn- 
 quent is unknown or insolvent ; 2nd, To- defray, in the first 
 
 * Insurance is good, because the insurer has volunteered to sustain the 
 loss, considering the premium he receives as equivalent to the danger 
 he runs. But this remedy is imperfect in itself, because the premium, 
 which is a certain loss, must always be paid, to guarantee one's self 
 against a loss which is uncertain. In this point of view, it is desirable 
 that all unforeseen losses, which may fall upon individuals without their 
 fault, were made up at the public expense. The more numerous the con- 
 tributors, the less sensibly do any of them feel the contribution. It 
 is to be observed, on the other hand, that a public fund is more exposed 
 to fraud, to peculation, and to loss, than a private fund. Losses which 
 fall directly upon individuals give aU possible force to motives of vigi- 
 lance and economy. ^' 
 
 f This was the name given to a kind of banks established in different 
 parts of Europe, for the purpose of lending money to the poor upon 
 pledges, without interest. — Tramsloter 
 
472 PKINCIPLES OF THE PENAL CODE. 
 
 instance, the expense of judicial prosecutions in favour of the 
 poor. This payment might he extended to cases purely civil. 
 
 But the method of these indemnities would be foreign to the 
 subject of this treatise ; its principles have been explained else- 
 where, and I must hffie coMne myself to the announcement of 
 the general result of this work. It is this : That ly good laws 
 almost all offences may he reduced to acts which can he repaired hy 
 a simple pecuniary compensation, and thus the evil of offences may 
 he almost wholly done away. 
 
 At first,' this result, simply announced, does not strike the ima- 
 gination ; it must be meditated upon before its importance can be 
 perceived, and its weight be felt. It is not the brUliant society 
 of fashion that can be interested by a formula almost arithmetic 
 in expression. It is offered, statesmen, to you ! It is yours to 
 judge it ! 
 
 The science of which the basis has been investigated in this 
 work can be pleasing only to elevated souls who are warmed 
 with a passion for the pubHc good. It has no connection with 
 that triokish and subversive kind of politics which prides itself 
 upon clandestine projects, which acquires a glory composed 
 wholly of human misery, which sees the prosperity of one nation 
 in the abasement of another, and which mistakes convulsions of 
 government for conceptions of genius. We are here employed 
 upon the greatest interests of humanity ; the art of forming the 
 manners and the character of nations ; of raising to its highest 
 point the security of individuals ; and of deriving results equally 
 beneficial from differentforms of government. Such is the object 
 of this science; frank and generous ; asking only for light ; wish- 
 ing nothing exclusive ; and finding no meana'go sure to perpetuate 
 the benefits it confers as to share them with the whole family of 
 nations.