29. (10.) There is a principle, capable of being reduced to considerable precision, which will serve as a general rule for estimating the merits of the criminal code of a people. A capital excellence, in such a code, consists in the punishment being drawn from the peculiar nature of the crime committed, and a correspondent defect in a de viation from this principle. Nothing can tend more to con nect the idea of punishment with guilt, as well in the breast of him who is about to commit the crime, as of them who are witnesses of his punishment, whilst also it naturally con ducts to a just proportion between the punishment and the offence. Upon this principle Montesquieu* has sketched the outline of a criminal code.
" There are," says he, " four sorts of crimes : the first sort offend against religion ; the second, against man ners; the third, the peace of society; and the fourth, the security of the citizens. The punishments proper to each of these sorts of crimes, should be derived from the nature of each.
" The class of crimes which relate to religion, should comprise such only as directly attack it, as are ail cases of simple sacrilege* ; for crimes which disturb merely the exercise of religion, belong to the class either of those against the public peace, or the seem ity of the citizens. That the punishment of these acts of simple sacrilege may be derived from the nature of the thing, it ought to consist in depriving the guilty person of all the advantages which the national religion confers ; such as exclusion from places of public worship, excommunication, Ste. In mat ters relating to the public peace, or the security of the citi zens, acts, though of a less open or direct nature, may be i the proper subject of human justice ; but in matters relat ing to the Divinity, where there is no public act, there is no ground for accusation. In that case, the matter is sole ly between God and his creature ; and to God alone it then belongs to make the measure and the time of his ven geance. But if, confounding the nature of things, the magistrate is industrious to detect such private deviations from the national standard,t he introduces an inquisition which is not only unnecessary, but highly impolitic, and destroys the liberty of the citizens, by arming against them the united zeal of every timid and every intolerant con science. The evil arises hence, that it is deemed neces sary to avenge the Deity ;—as if it should not be our study rather to honour the Deity than to avenge him. Proceed ing upon this idea, where shall punishments stop ? If hu man laws are to avenge an infinite Being, they ought to be regulated by adequate notions of his infinitude, not spring from the imbecility, the ignorance, and the caprices of hu man nature.
" The second class of crimes, or those against manners, are such as violate public or private decency in the mode of gratifying the senses. The punishment of these should In like manner be drawn from the nature of the thing. De privation of all those advantages which society has con nected with purity of manners ; shame ; necessity of with drawing from the view of the citizens ; public infamy ; ex pulsion from the city, or even from the community ; in short, the different sorts of punishment which are properly corrective, should suffice to repress the shamelessness of either sex. In truth, such offences arc less founded in criminality, or an intention to injure another, than in forget fulness or contempt of one's self. But we must here keep in view those offences which affect manners only,—not those crimes which, affecting also the security of the citi zens, such as the abduction of women, and rape, fall pro perly under the fourth class.
The crimes of the third class are those which relate to the public peace. And here also the punishment ought to refer to the nature of the offence, and be strictly correc tive, as confinement, exile, and such penalties as tend to re form unquiet spirits, and bring them back to established or der. But neither must such offences be confounded with
those which include a violation of the public security, but must be confined to a simple breach of police.
" The penalties of the fourth and last class of crimes, or such as °fiend against the security of the citi-ens, are those which are more strictly denominated punishments. They arise from a sort of lex talionis, which requires that the so ciety should withdraw its security from him, who has de prived, or endeavoured to deprive, another of that security.
This sort of punishment is derived from the nature of things, is founded in reason, and has a direct reference to the very principles themselves of good and evil. A citizen deserves death, when he has violated the public security so far as to have deprived another of life. But this punish ment of death ought to be regarded as an extreme remedy for diseased society. It may sometimes happen, that when the public security with regard to property has been injur ed, there may be reasons for inflicting a capital pain ; but it were perhaps wiser, and Ironic] certainly be more agreea ble to the nature of things, if the punishment in such cases were commonly confined to the loss of property. But as it usually happens that the property of others is attacked by those who have none themselves, corporal punishment supplies, of necessity, the place of pecuniary." 30. (11.) As enactments cannot foresee and particularize every ease, it is the business of reason to compare the facts which are omitted with those which arc specified. With the public good in view as the great rule of decision, the new law should be compared with the old ; a strict regard maintained to the whole tenor ; the real spirit and import considered rather than the mere terms ; the defects and obscurities of expression supplied and explained by refe rence to that real import ; and even recurrence had to neighbouring institutions. Yet we must be jealous of an arbitrary extension of one case to another, and above all in matters penal. That subtlety which busies itself in draw ing consequences is contrary to the sentiments of humanity, derogatory to the legislature, and inconsistent with liber ty. It is only in favourable cases that a liberal interpreta tion can be allowed ; in all others the evil should be tolerated, until an express enactment can be made to suppress it.
31. (12.) But a custom perfectly established by a long succession of examples, and thus unequivocably adopted by the people, supplies the defect (which in this ease must be supposed to be intentional) of the enactment, holds the place of a statute, and becomes tacitly a law by prescrip tion.
32. (13.) To enable courts of law to arrive at a just and accurate decision, forms of procedure are indispensa ble. The misfortune is, that it is the interest of practi tioners, sometimes of the judge, to multiply these forms, and to baffle every attempt of the most upright magistrate, as well as of the legislature, to simplify and abridge them. Thus forms are every where so numerous, as to embarrass the operation of the very laws which have established them; a suit becomes an inheritance ; property remains uncer tain ; and the parties and their heirs arc ruined in their en deavours to ascertain the right.
31 (14.) After the example of the Athenians, such laws should from time to time be carefully collected as arc su perannuated, contradictory, or useless, that the national code may thus be purified and diminished, lest that contempt which awaits or has already overtaken such laws should, like a gangrene, overspread those also which are truly ex cellent. Yet let this reformation be wrought with much precaution and solemnity, that the people may perceire the sacredness of the law, which requires so much formality even to correct it.