Montesquieu
 

XXVI.24 That police statutes are of a different order from other civil laws

There are cri­mi­nals whom the magis­trate puni­shes ; there are others whom he chas­ti­ses : the first are sub­ject to the force of the law, the others to his autho­rity ; the for­mer are cut off from society, the lat­ter obli­ged to live in accor­dance with society’s rules.

In the main­te­nance of order, it is rather the magis­trate who puni­shes than the law ; in judg­ments of cri­mes, it is rather the law which puni­shes than the magis­trate. Matters of order are things of each moment, where lit­tle usually is at issue ; lit­tle or nothing in the way of for­ma­li­ties is cal­led for. Police actions are prompt, and they deal with things that recur every day ; great punish­ments are the­re­fore not appro­priate to them. They are per­pe­tually occu­pied with details ; great exam­ples are the­re­fore not their pro­vince. The ser­vice of order has sta­tu­tes more than laws ; the men who are its agents are cons­tantly under the eye of the magis­trate : it is the­re­fore the magis­trate’s fault if they lapse into exces­ses. Thus we must not confuse great vio­la­tions of the laws with sim­ple vio­la­tions of order : these things are of dif­fe­rent kind.

Whence it fol­lows that the nature of things has not been res­pec­ted in that repu­blic of Italy1 where car­rying firearms is puni­shed as a capi­tal crime, and where it is not more fatal to make bad use of them than to carry them.

It fur­ther fol­lows that the much-lau­ded act of the empe­ror who had a baker impa­led whom he had caught defrau­ding is the act of a sul­tan who knows not how to be just without offen­ding jus­tice itself.

Venice.