Montesquieu
 

VI.16 On the just proportion of punishment to crime

It is essen­tial that there be some har­mony among punish­ments, because it is essen­tial to deter a great crime rather than a les­ser one, what is a threat to society rather than what dis­rupts it less.

“An impos­ter who said he was Constantine Doukas pro­vo­ked a great upri­sing in Constantinople. He was caught and sen­ten­ced to be whip­ped ; but having accu­sed some highly-pla­ced per­sons, he was sen­ten­ced to be bur­ned as a slan­de­rer.”1 It is sin­gu­lar that they had thus pro­por­tio­ned punish­ments bet­ween the crime of lese-majesty and the crime of slan­der.

It recalls a remark of Charles II, king of England. He saw in pas­sing a man being pillo­ried. “Why has he been put there ?” he asked. “Sire,” came the reply, “he has writ­ten sati­ri­cal things against your minis­ters.” “The fool !” said the king ; “why did he not write them against me ? There would have been no conse­quence for that.”

“Seventy per­sons cons­pi­red against the empe­ror Basil ; he had them flog­ged, their hair and beards were bur­ned. When a stag caught him by the belt with its ant­lers, someone in his reti­nue drew his sword, cut his belt, and freed him ; he had the man behea­ded because, he said, he had drawn his sword against him.”2 Who could think that these two judg­ments could have been ren­de­red under the same prince ?

It is a great wrong for us to inflict the same punish­ment on the high­way rob­ber and on the man who steals and mur­ders. It is obvious that for public safety there ought to be some dif­fe­rence made in the punish­ment.

In China, cruel thie­ves are cut to pie­ces,3 others not ; the effect of this dif­fe­rence is that they steal but do not kill.

In Muscovy, where the punish­ments for thie­ves and for killers are the same, they always kill.4 The dead, they say there, tell no sto­ries.

When there is no dif­fe­rence in the punish­ment, some must be made in the hope of cle­mency. In England no one mur­ders, because thie­ves can hope to be sent to the colo­nies, but not mur­de­rers.

Letters of cle­mency are a great resource of mode­rate govern­ments. This power of the prince to par­don, applied wisely, can have admi­ra­ble effects. The prin­ci­ple of the des­po­tic govern­ment which does not par­don, and which is never par­do­ned, depri­ves it of these advan­ta­ges.

History of Nicephoros, patriarch of Constantinople.

Ibid.

Du Halde, vol. I, p. 6.

The State of Russia under the Present Czar, by Perry.