^{Republished on CrimRxiv per the 1775 (1st) edition’s public domain. The material was not modified; errors in the version-of-record, if any, are left unchanged. The sections below are excerpts, corresponding with Chapters I, II, VI and XII.}

Of the Origin of Punishments

Laws are the conditions, under which men, naturally independent, united themselves in society. Weary of living in a continual state of war, and of enjoying a liberty which became of little value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy the rest in peace and security. The sum of all these portions of the liberty of each individual constituted the sovereignty of a nation; and was deposited in the hands of the sovereign, as the lawful administrator. But it was not sufficient only to establish this deposite; it was also necessary to defend it from the usurpation of each individual, who will always endeavour to take away from the mass, not only his own portion, but to encroach on that of others. Some motives, therefore, that strike the senses, were necessary to prevent the despotism of each individual from plunging society into its former chaos. Such motives are the punishments established against the infractors of the laws. I say, that motives of this kind are necessary; because, experience shows, that the multitude adopt no established principle of conduct; and because, society is prevented from approaching to that dissolution, (to which, as well as all other parts of the physical and moral world, it naturally tends,) only by motives, that are the immediate objects of sense, and which being continually presented to the mind, are sufficient to counterbalance the effects of the passions of the individual, which oppose the general good. Neither the power of eloquence, nor the sublimest truths, are sufficient to restrain, for any length of time, those passions, which are excited by the lively impressions of present objects.

Of the Right to Punish

Every punishment, which does not arise from absolute necessity, says the great Montesquieu, is tyrannical. A proposition which may be made more general, thus. Every act of authority of one man over another, for which there is not an absolute necessity, is tyrannical. It is upon this then, that the sovereign's right to punish crimes is founded; that is, upon the necessity of defending the public liberty, entrusted to his care, from the usurpation of individuals; and punishments are just in proportion, as the liberty, preserved by the sovereign, is sacred and valuable.

Let us consult the human heart, and there we shall find the foundation of the sovereign’s right to punish; for no advantage in moral policy can be lasting, which is not founded on the indelible sentiments of the heart of man. Whatever law deviates from this principle will always meet with a resistance, which will destroy it in the end; for the smallest force, continually applied, will overcome the most violent motion communicated to bodies.

No man ever gave up his liberty, merely for the good of the public. Such a chimera exists only in romances. Every individual wishes, if possible, to be exempt from the compacts, that bind the rest of mankind.

The multiplication of mankind, though slow, being too great for the means, which the earth, in its natural state, offered to satisfy necessities, which every day became more numerous, obliged men to separate again, and form new societies. These naturally opposed the first, and a state of war was transferred from individuals to nations.

Thus it was necessity that forced men to give up a part of their liberty; it is certain, then, that every individual would chuse to put into the public stock the smallest portion possible; as much only as was sufficient to engage others to defend it. The aggregate of these, the smallest portions possible, forms the right of punishing: all that extends beyond this is abuse, not justice.

Observe, that by justice I understand nothing more than that bond, which is necessary to keep the interest of individuals united; without which, men would return to their original state of barbarity. All punishments, which exceed the necessity of preserving this bond, are in their nature unjust. We should be cautious how we associate with the word justice, an idea of anything real, such as a physical power, or a being that actually exists. I do not, by any means, speak of the justice of God, which is of another kind, and refers immediately to rewards and punishments in a life to come.

Of the Proportion between Crimes and Punishments

It is not only the common interest of mankind, that crimes should not be committed, but that crimes of every kind should be less frequent, in proportion to the evil they produce to society. Therefore, the means made use of by the legislature to prevent crimes, should be more powerful, in proportion as they are destructive of the public safety and happiness, and as the inducements to commit them are stronger. Therefore there ought to be a fixed proportion between crimes and punishments.

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

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

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

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

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

Of the Intent of Punishments

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

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