Montesquieu
 

XII.4 That freedom is favored by the nature of punishments and their proportion

It is the triumph of liberty when the cri­mi­nal laws derive every punish­ment from the par­ti­cu­lar nature of the crime. All arbi­tra­ri­ness cea­ses ; the punish­ment is han­ded down not by the legis­la­tor’s whim, but by the nature of the thing ; and it is not man com­mit­ting vio­lence against man.

There are four sorts of cri­mes. Those of the first kind vio­late reli­gion ; those of the second kind, mora­lity ; those of the third, tran­qui­lity ; those of the fourth, the secu­rity of the citi­zens. The punish­ments inflic­ted should derive from the nature of each of these kinds.

In the cate­gory of cri­mes invol­ving reli­gion I place only those which attack it directly, like all sim­ple sacri­le­ges. For cri­mes which inter­fere with its exer­cise are of the same nature as those that offend the tran­quillity of the citi­zens or their secu­rity, and must be refer­red to those cate­go­ries.

In order for the punish­ment of sim­ple sacri­le­ges to be deri­ved from the nature of the thing,1 it must consist in the depri­va­tion of all the advan­ta­ges that reli­gion pro­vi­des : expul­sion from the tem­ples, depri­va­tion of the fel­low­ship of the fai­th­ful for a time or fore­ver, flight from their pre­sence, exe­cra­tions, shun­nings, and exor­cisms.2

In mat­ters that dis­rupt the tran­qui­lity or the secu­rity of the state, hid­den acts fall in the juris­dic­tion of human jus­tice. But in those that offend the deity, where there is no public act, there is no sub­stance of crime ; eve­ry­thing takes place bet­ween man and God, who knows the mea­sure and the time of his ven­geance. But if, confu­sing things, we also pur­sue the hid­den sacri­lege, we bring an inqui­si­tion to bear on a kind of act which does not require it, we des­troy the free­dom of citi­zens by arming against them the zeal of timid cons­cien­ces and that of bold ones.

The harm has issued from the notion that we must avenge the deity. But we must honor the deity and never avenge him. Indeed, if we acted on this last notion, where would retri­bu­tions end ? If the laws of men must avenge an infi­nite being, they will be gau­ged by his infi­nity, and not by the frailty, the igno­rance, and the impul­ses of human­kind.

An his­to­rian of Provence rela­tes a fact that depicts very well for us the effect this idea of aven­ging the deity can have on fee­ble minds.3] A Jew accu­sed of blas­phemy against the Holy Virgin was sen­ten­ced to be flayed. Some mas­ked knights, kni­ves in hand, moun­ted the gal­lows and dis­pat­ched the exe­cu­tio­ner so they could them­sel­ves avenge the Holy Virgin’s honor… I abs­tain from anti­ci­pa­ting the rea­der’s reflec­tions.

The second class is cri­mes that are against decency, such as the vio­la­tion of public or pri­vate decency, in other words, of res­tric­tions on the man­ner in which one is to enjoy the plea­su­res atta­ched to the use of the sen­ses and the union of bodies. The penal­ties for these cri­mes must again be deri­ved from the nature of the thing : depri­va­tion of the advan­ta­ges which society has atta­ched to the purity of decency : fines, shame, having to hide, public humi­lia­tion, expul­sion from the city and from society : in sum, all the penal­ties which cor­rec­tio­nal juris­dic­tion has at its dis­po­sal suf­fice to repress the effron­tery of the two sexes. Indeed these things are less based on malice than on lack of control or self-esteem.

At issue here are only cri­mes solely invol­ving decency, not those that also threa­ten public safety, such as abduc­tion and rape, which are of the fourth kind.

Crimes of the third cate­gory are those that com­pro­mise the citi­zens’ tran­qui­lity, and their penal­ties must be deri­ved from the nature of the thing, and relate to that tran­qui­lity, such as pri­son, exile, cor­rec­tions, and other penal­ties that reclaim tur­bu­lent spi­rits and return them to the esta­bli­shed order.

I limit cri­mes against tran­qui­lity to things that contain a sim­ple breech of public order ; for those which, by dis­tur­bing tran­qui­lity, threa­ten secu­rity at the same time, must be pla­ced in the fourth cate­gory.

The penal­ties for these last cri­mes are what are cal­led cor­po­ral punish­ments. They are a kind of reta­lia­tion, by which society refu­ses secu­rity to a citi­zen who has depri­ved or attemp­ted to deprive ano­ther of it. This penalty is deri­ved from the nature of the thing, drawn from rea­son and the sour­ces of good and evil. A citi­zen deser­ves death when he has vio­la­ted secu­rity to the point of taking a life or attemp­ting to do so. This death penalty is like the remedy of the sick society. When secu­rity is vio­la­ted with res­pect to pro­perty, there can be rea­sons why the punish­ment should be capi­tal ; but it would per­haps be pre­fe­ra­ble, and it would be more in their nature, for cri­mes against the secu­rity of pro­perty to be puni­shed by loss of pro­perty ; and that should be so if the for­tu­nes were com­mon or equal. But as it is those who pos­sess nothing who are more likely to endan­ger the pro­perty of others, cor­po­ral punish­ment has had to sub­sti­tute for the pecu­niary kind.

All that I am saying is drawn from nature, and is most favo­ra­ble to the citi­zen’s free­dom.

St. Louis made laws so exaggerated against those who swore that the pope felt himself obliged to tell him so. The prince moderated his zeal, and attenuated his laws. See his Ordinances.

[“Conjuration, in ecclesiastical matters, means exorcism” (Furetière).]

Father Bougerel. [I.e., Joseph Bougerel, Mémoires pour servir à l’histoire de plusieurs hommes illustres de Provence.