the spirit of laws-第51节
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such a notion； where would be the end of punishments？ If human laws are to avenge the cause of an infinite Being； they will be directed by his infinity； and not by the weakness； ignorance； and caprice of man。
An historian＇9＇ of Provence relates a fact which furnishes us with an excellent description of the consequences that may arise in weak capacities from the notion of avenging the Deity's cause。 A Jew was accused of having blasphemed against the Virgin Mary； and upon conviction was condemned to be flayed alive。 A strange spectacle was then exhibited： gentlemen masked； with knives in their hands； mounted the scaffold； and drove away the executioner； in order to be the avengers themselves of the honour of the blessed Virgin。 I do not here choose to anticipate the reflections of the reader。
The second class consists of those crimes which are prejudicial to morals。 Such is the violation of public or private continence； that is； of the police directing the manner in which the pleasure annexed to the conjunction of the sexes is to be enjoyed。 The punishment of those crimes ought to be also derived from the nature of the thing； the privation of such advantages as society has attached to the purity of morals； fines； shame； necessity of concealment； public infamy； expulsion from home and society； and； in fine； all such punishments as belong to a corrective jurisdiction； are sufficient to repress the temerity of the two sexes。 In effect these things are less founded on malice than on carelessness and self…neglect。
We speak here of none but crimes which relate merely to morals； for as to those that are also prejudicial to the public security； such as rapes； they belong to the fourth species。
The crimes of the third class are those which disturb the public tranquillity。 The punishments ought therefore to be derived from the nature of the thing； and to be in relation to this tranquillity； such as imprisonment； exile； and other like chastisements proper for reclaiming turbulent spirits； and obliging them to conform to the established order。
I confine those crimes that injure the public tranquillity to things which imply a bare offence against the police； for as to those which by disturbing the public peace attack at the same time the security of the subject； they ought to be ranked in the fourth class。
The punishments inflicted upon the latter crimes are such as are properly distinguished by that name。 They are a kind of retaliation； by which the society refuses security to a member who has actually or intentionally deprived another of his security。 These punishments are derived from the nature of the thing； founded on reason； and drawn from the very source of good and evil。 A man deserves death when he has violated the security of the subject so far as to deprive； or attempt to deprive； another man of his life。 This punishment of death is the remedy； as it were； of a sick society。 When there is a breach of security with regard to property； there may be some reasons for inflicting a capital punishment： but it would be much better； and perhaps more natural； that crimes committed against the security of property should be punished with the loss of property； and this ought； indeed； to be the case if men's fortunes were common or equal。 But as those who have no property of their own are generally the readiest to attack that of others； it has been found necessary； instead of a pecuniary； to substitute a corporal； punishment。
All that I have here advanced is founded in nature； and extremely favourable to the liberty of the subject。
5。 Of certain Accusations that require particular Moderation and Prudence。 It is an important maxim； that we ought to be very circumspect in the prosecution of witchcraft and heresy。 The accusation of these two crimes may be vastly injurious to liberty； and productive of infinite oppression； if the legislator knows not how to set bounds to it。 For as it does not directly point at a person's actions； but at his character； it grows dangerous in proportion to the ignorance of the people； and then a man is sure to be always in danger； because the most exceptional conduct； the purest morals； and the constant practice of every duty in life are not a sufficient security against the suspicion of his being guilty of the like crimes。
Under Manuel Comnenus； the Protestator＇10＇ was accused of having conspired against the emperor； and of having employed for that purpose some secrets that render men invisible。 It is mentioned in the life of this emperor＇11＇ that Aaron was detected； as he was poring over a book of Solomon's； the reading of which was sufficient to conjure up whole legions of devils。 Now by supposing a power in witchcraft to rouse the infernal spirits to arms； people look upon a man whom they call a sorcerer as the person in the world most likely to disturb and subvert society； and of course they are disposed to punish him with the utmost severity。
But their indignation increases when witchcraft is supposed to have the power of subverting religion。 The history of Constantinople＇12＇ informs us that in consequence of a revelation made to a bishop of a miracle having ceased because of the magic practices of a certain person； both that person and his son were put to death。 On how many surprising things did not this single crime depend？ That revelations should not be uncommon； that the bishop should be favoured with one； that it was real； that there had been a miracle in the case； that this miracle had ceased； that there was a magic art； that magic could subvert religion； that this particular person was a magician； and； in fine； that he had committed that magic act。
The Emperor Theodorus Lascaris attributed his illness to witchcraft。 Those who were accused of this crime had no other resource left than to handle a red…hot iron without being hurt。 Thus among the Greeks a person ought to have been a sorcerer to be able to clear himself of the imputation of witchcraft。 Such was the excess of their stupidity that to the most dubious crime in the world they joined the most dubious proofs of innocence。
Under the reign of Philip the Long； the Jews were expelled from France； being accused of having poisoned the springs with their lepers。 So absurd an accusation ought to make us doubt all those that are founded on public hatred。
I have not here asserted that heresy ought not to be punished； I said only that we ought to be extremely circumspect in punishing it。
6。 Of the Crime against Nature。 God forbid that I should have the least inclination to diminish the public horror against a crime which religion； morality； and civil government equally condemn。 It ought to be proscribed； were it only for its communicating to one sex the weaknesses of the other； and for leading people by a scandalous prostitution of their youth to an ignominious old age。 What I shall say concerning it will in no way diminish its infamy； being levelled only against the tyranny that may abuse the very horror we ought to have against the vice。
As a natural circumstance of this crime is secrecy； there are frequent instances of its having been punished by legislators upon the deposition of a child。 This was opening a very wide door to calumny。 〃Justinian；〃 says Procopius；＇13＇ 〃published a law against this crime； he ordered an inquiry to be made not only against those who were guilty of it； after the enacting of that law； but even before。 The deposition of a single witness； sometimes of a child； sometimes of a slave； was sufficient； especially against such as were rich； and against those of the green faction。〃
It is very odd that these three crimes； witchcraft； heresy； and that against nature； of which the first might easily be proved not to exist； the second to be susceptible of an infinite number of distinctions； interpretations； and limitations； the third to be often obscure and uncertain it is very odd； I say； that these three crimes should amongst us be punished with fire。
I may venture to affirm that the crime against nature will never make any great progress in society； unless people are prompted to it by some particular custom； as among the Greeks； where the youths of that country performed all their exercises naked； as amongst us； where domestic education is disused； as amongst the Asiatics； where particular persons have a great number of women whom they despise； while others can have none at all。 Let there be no customs preparatory to this crime； let it； like every other violation of morals； be severely proscribed by the civil magistrate； and nature will soon defend or resume her rights。 Nature； that fond； that indulgent parent； has strewn her pleasures with a bounteous hand； and while she fills us with delights； she prepares us； by means of our issue； in whom we see ourselves； as it were； reproduced she prepares us； I say； for future satisfactions of a more exquisite kind than those very delights。
7。 Of the Crime of High Treason。 It is determined by the laws of China that whosoever shows any disrespect to the emperor is to be punished with death。 As they do not mention in what this disrespect consists； everything may furnish a pretext to take away a man's life； and to exterminate any family whatsoever。
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