The Severity of Punishments in different Governments

THE severity of punishments is fitter for despotic governments, whose principle is terror, than for a monarchy or a republic, whose spring is honour and virtue.

In moderate governments, the love of one’s country, shame, and the fear of blame, are restraining motives, capable of preventing a multitude of crimes. Here the greatest punishment of a bad action is conviction. The civil laws have, therefore, a softer way of correcting, and do not require so much force and severity.

In those states, a good legislator is less bent upon punishing, than preventing, crimes; he is more attentive to inspire good morals than to inflict penalties.

It is a constant remark of the Chinese authors†, that, the more the penal laws were increased in their empire, the nearer they drew towards a revolution. This is because punishments were augmented in proportion as the public morals were corrupted.

It would be an easy matter to prove, that, in all, or almost all, the governments of Europe, penalties have increased or diminished in proportion as those governments favoured or discouraged liberty.

In despotic governments, people are so unhappy as to have a greater dread of death than regret for the loss of life; consequently, their punishments ought to be more severe. In moderate states, they are more afraid of losing their lives than apprehensive of the pain of dying; those punishments, therefore, which deprive them simply of life, are sufficient.

Men, in excess of happiness or misery, are equally inclinable to severity; witness conquerors and monks. It is mediocrity alone, and a mixture of prosperous and adverse fortune, that inspire us with lenity and pity.

What we see practised by individuals is equally observable in regard to nations. In countries inhabited by savages, who lead a very hard life, and in despotic governments, where there is only one person on whom fortune lavishes her favours, while the miserable subjects lie exposed to her insults, people are equally cruel. Lenity reigns in moderate governments.

When, in reading history, we observe the cruelty of the sultans in the administration of justice, we shudder at the very thought of the miseries of human nature.

In moderate governments, a good legislator may make use of every thing by way of punishment. Is it not very extraordinary, that one of the chief penalties, at Sparta, was to deprive a person of the power of lending out his wife, or of receiving the wife of another man, and to oblige him to have no company at home but virgins? In short, whatever the law calls a punishment, is such effectively.

Chapter 10: The ancient French Laws

The true spirit of monarchy was in the ancient French laws.

In cases relating to pecuniary mulcts, the common people are less severely punished than the nobility‡.

But in criminal cases, it is quite the reverse. The nobleman loses his honour and his voice in court, while the peasant, who has no honour to lose, undergoes a corporal punishment.

Chapter 11: When People are Virtuous, few Punishments are necessary

THE people of Rome had some share of probity.

Such was the force of this probity, that the legislator had frequently no farther occasion than to point out the right road, and they were sure to follow it. One would imagine, that, instead of precepts, it was sufficient to give them counsels.

The punishments of the regal laws, and those of the twelve tables, were almost all abolished in the time of the republic, in consequence either of the Valerian§ or of the Porcian law.¶ It was never observed that this step did any manner of prejudice to the civil administration.

This Valerian law, which restrained the magistrates from using violent methods against a citizen that had appealed to the people, inflicted no other punishment on the person who infringed it than that of being reputed a dishonest man.*

Chapter 12: The Power of Punishments

In countries that have lenient laws, the people are much affected by slight penalties, as other countries are affected by severer punishments.

If an inconveniency or abuse arises in the state, a violent government endeavours suddenly to redress it.

Instead of putting the old laws in execution, it establishes some cruel punishment, which instantly puts a stop to the evil. But the spring of government hereby loses its elasticity; the imagination grows accustomed to the severe as well as the milder punishment; and, as the fear of the latter diminishes, they are soon obliged, in every case, to have recourse to the former.

Highway robberies were common in some countries. To solve this, they invented the punishment of breaking on the wheel. This terror stopped robberies for a while. But soon after, highway robberies became as common as ever.

Desertion, in our days, was grown to a very great height= in consequence of which it was judged proper to punish those delinquents with death; and yet their number did not diminish.

The reason is very natural= a soldier, accustomed to venture his life, despises, or affects to despise, the danger of losing it= he is habituated to the fear of shame= it would have been, therefore, much better to have continued a punishment which branded him with infamy for life= the penalty was pretended to be increased, while it really diminished.

Mankind must not be governed with too much severity. We should make a prudent use of the means which nature has given us to conduct them. The cause of all human corruptions is the impunity of criminals, and not from the moderation of punishments.

Let us follow nature, who has given shame to man for his scourge. Let the heaviest part of the punishment be the infamy attending it.

But, if there be some countries where shame is not a consequence of punishment, this must be owing to tyranny, which has inflicted the same penalties on villains and honest men.

And, if there are others where men are deterred only by cruel punishments, we may be sure that this must, in a great measure, arise from the violence of the government, which has used such penalties for slight transgressions.

It often happens that a legislator wants to remedy an abuse and only focuses on it. When the abuse is redressed, you see only the severity of the legislator.

Yet there remains an evil in the state, that has sprung from this severity; the minds of the people are corrupted and become habituated to despotism.

Lysander won over the Athenians. He ordered the prisoners to be tried, in consequence of an accusation, brought against that nation, of having thrown all the captives of two galleys down a precipice, and of having resolved, in full assembly, to cut off the hands of those whom they should chance to make prisoners.

The Athenians were therefore all massacred, except Adymantes who had opposed this decree.

Lysander reproached Philocles before he was put to death, with having depraved the people’s minds, and given lessons of cruelty to all Greece.

Plutarch says:

There are two sorts of corruption; one when the people do not observe the laws; the other when they are corrupted by the laws= an incurable evil, because it is in the very remedy itself.