men for the most part leave the regulation of their chief concerns to the prudence of the moment, or to the discretion of those whose interest it is to oppose the wisest laws; such laws, namely, as naturally help to diffuse the benefits of life, and check that tendency they have to accumulate in the hands of a few, which ranges on one side the extreme of power and happiness, and on the other all that is weak and wretched. it is only, therefore, after having passed through a thousand errors in matters that most nearly touch their lives and liberties, only after weariness of evils that have been suffered to reach a climax, that men are induced to seek a remedy for the abuses which oppress them, and to recognise the clearest truths, which, precisely on account of their simplicity, escape the notice of ordinary minds, unaccustomed as they are to analyse things, and apt to receive their impressions anyhow, from tradition rather than from inquiry.
we shall see, if we open histories, that laws, which[118] are or ought to be covenants between free men, have generally been nothing but the instrument of the passions of some few men, or the result of some accidental and temporary necessity. they have never been dictated by an unimpassioned student of human nature, able to concentrate the actions of a multitude of men to a single point of view, and to consider them from that point alone—the greatest happiness divided among the greatest number. happy are those few nations which have not waited for the slow movement of human combinations and changes to cause an approach to better things, after intolerable evils, but have hastened the intermediate steps by good laws; and deserving is that philosopher of the gratitude of mankind, who had the courage, from the obscurity of his despised study, to scatter abroad among the people the first seeds, so long fruitless, of useful truths.
the knowledge of the true relations between a sovereign and his subjects, and of those between different nations; the revival of commerce by the light of philosophical truths, diffused by printing; and the silent international war of industry, the most humane and the most worthy of rational men—these are the fruits which we owe to the enlightenment of this century. but how few have examined and combated the cruelty of punishments, and the irregularities of criminal procedures, a part of legislation so[119] elementary and yet so neglected in almost the whole of europe; and how few have sought, by a return to first principles, to dissipate the mistakes accumulated by many centuries, or to mitigate, with at least that force which belongs only to ascertained truths, the excessive caprice of ill-directed power, which has presented up to this time but one long example of lawful and cold-blooded atrocity! and yet the groans of the weak, sacrificed to the cruelty of the ignorant or to the indolence of the rich; the barbarous tortures, multiplied with a severity as useless as it is prodigal, for crimes either not proved or quite chimerical; the disgusting horrors of a prison, enhanced by that which is the cruellest executioner of the miserable—namely, uncertainty;—these ought to startle those rulers whose function it is to guide the opinion of men’s minds.
the immortal president, montesquieu, has treated cursorily of this matter; and truth, which is indivisible, has forced me to follow the luminous footsteps of this great man; but thinking men, for whom i write, will be able to distinguish my steps from his. happy shall i esteem myself if, like him, i shall succeed in obtaining the secret gratitude of the unknown and peaceable followers of reason, and if i shall inspire them with that pleasing thrill of emotion with which sensitive minds respond to the advocate of the interests of humanity.
to examine and distinguish all the different sorts[120] of crimes and the manner of punishing them would now be our natural task, were it not that their nature, which varies with the different circumstances of times and places, would compel us to enter upon too vast and wearisome a mass of detail. but it will suffice to indicate the most general principles and the most pernicious and common errors, in order to undeceive no less those who, from a mistaken love of liberty, would introduce anarchy, than those who would be glad to reduce their fellow-men to the uniform regularity of a convent.
what will be the penalty suitable for such and such crimes?
is death a penalty really useful and necessary for the security and good order of society?
are torture and torments just, and do they attain the end which the law aims at?
what is the best way of preventing crimes?
are the same penalties equally useful in all times?
what influence have they on customs?
these problems deserve to be solved with such geometrical precision as shall suffice to prevail over the clouds of sophistication, over seductive eloquence, or timid doubt. had i no other merit than that of having been the first to make clearer to italy that which other nations have dared to write and are beginning to practise, i should deem myself fortunate;[121] but if, in maintaining the rights of men and of invincible truth, i should contribute to rescue from the spasms and agonies of death any unfortunate victim of tyranny or ignorance, both so equally fatal, the blessings and tears of a single innocent man in the transports of his joy would console me for the contempt of mankind.
