Chapter 16

The Just Proportion Between Punishments and Crimes

by Montesquieu Icon

IT is an essential point, that there should be a certain proportion in punishments, because it is essential that a great crime should be avoided rather than a smaller, and that which is more pernicious to society rather than that which is less.

“An impostor, who called himself Constantine Ducas, raised a great insurrection at Constantinople. He was taken and condemned to be whipt; but, upon informing against several persons of distinction, he was sentenced to be burnt as a calumniator.”

It is very extraordinary that they should thus proportion the punishments betwixt the crime of high-treason and that of calumny.

This puts me in mind of a saying of Charles II. king of Great-Britain. He saw a man, one day, standing in the pillory; upon which, he asked what crime the man had committed. He was answered, Please your majesty, he has written a libel against your ministers. The fool! said the king, why did not he write against me? they would have done nothing to him.

“Seventy persons having conspired against the emperor Basil†, he ordered them to be whipt, and the hair of their heads and beards to be burnt. A stag, one day, having taken hold of him by the girdle with his horn, one of his retinue drew his sword, cut the girdle, and saved him; upon which, he ordered that person’s head to be cut off, for having, said he, drawn his sword against his sovereign.”

Who could imagine that the same prince could ever have passed two such different judgements?

It is a great abuse amongst us to condemn to the same punishment a person that only robs on the highway, and another who robs and murders. Surely, for the public security, some difference should be made in the punishment.

In China, those who add murder to robbery are cut in pieces‡; but not so the others= to this difference it is owing, that, though they rob in that country, they never murder.

In Russia, where the punishment of robbery and murder is the same, they always murder∥. The dead, say they, tell no tales.

Where there is no difference in the penalty, there should be some in the expectation of pardon. In England they never murder on the highway, because robbers have some hopes of transportation, which is not the case in respect to those that commit murder.

Letters of grace are of excellent use in moderate governments. This power which the prince has of pardoning, exercised with prudence, is capable of producing admirable effects. The principle of despotic government, which neither grants nor receives any pardon, deprives it of these advantages.

Chapter 17= The Rack

THE wickedness of mankind makes it necessary for the laws to suppose them better than they really are. Hence the deposition of two witnesses is sufficient in the punishment of all crimes. The law believes them, as if they spoke by the mouth of truth. Thus we judge that every child conceived in wedlock is legitimate; the law having a confidence in the mother, as if she were chastity itself. But the use of the rack against criminals cannot be defended on a like plea of necessity.

We have before us the example of a nation, blessed with an excellent civil government§, where, without any inconveniency, the practice of racking criminals is rejected. It is not, therefore, in its own nature, necessary¶.

So many men of learning and genius have written against the custom of torturing criminals, that after them I durst not presume to meddle with the subject. I was going to say, that it might suit despotic states, where whatever inspires fear is the properest spring of government; I was going to say, that the slaves among the Greeks and Romans — But nature cries out aloud, and asserts her rights.

Chapter 18= Pecuniary and corporal Punishments.

OUR ancestors, the Germans, admitted of none but pecuniary punishments. Those free and warlike people were of opinion, that their blood ought not to be spilt but with sword in hand. On the contrary, these punishments are rejected by the Japanese*, under pretence that the rich might elude them. But are not the rich afraid of being stripped of their property? And might not pecuniary penalties be proportioned to people’s fortunes? And, in fine, might not infamy be added to those punishments?

A good legislator takes a just medium; he ordains neither always pecuniary, nor always corporal, punishments.

Chapter 19= The Law of Retaliation

THE use of the law of retaliation† is very frequent in despotic countries, where they are fond of [120] simple laws. Moderate governments admit of it sometimes; but with this difference, that the former exercise it in full rigour, whereas, among the latter, it ever receives some kind of limitation.

The law of the twelve tables admitted two; first, it never condemned to retaliation but when the plaintiff could not be satisfied in any other manner‡= secondly, after condemnation they might pay damages and interest∥, and then the corporal was changed into a pecuniary punishment§.

Chapter 20= Of the Punishment of Fathers for the Crimes of their Children.

IN China, fathers are punished for the crimes of their children. This was likewise the custom of Peru¶; a custom derived from the notion of despotic power.

Little does it signify to say, that, in China, the father is punished for not having exerted that paternal authority which nature has established and the laws themselves have improved. This still supposes that there is no honour among the Chinese. Amongst us, parents, whose children are condemned by the laws of their country, and children*, whose parents have undergone the like fate, are as severely punished by shame, as they would be, in China, by the loss of their lives.

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