BOOK I. even for the acquisition of the knowledge necessary to decide CHAP. XIII. them. As the sovereign cannot personally discharge all the functions of government, he should, with a just discernment, reserve to himself such as he can successfully perform, and are of most importance,-intrusting the others to officers and magistrates who shall execute them under his authority. There is no inconvenience in trusting the decision of a law[79] suit to a body of prudent, honest, and enlightened men :-on the contrary it is the best mode the prince can possibly adopt; and he fully acquits himself of the duty he owes to his people in this particular, when he gives them judges adorned with all the qualities suitable to ministers of justice: he has then nothing more to do but to watch over their conduct, in order that they may not neglect their duty. 2164. The ordinary courts should determine causes re revenue. The establishment of courts of justice is particularly necessary for the decision of all fiscal causes, that is to say, all the disputes that may arise between the subjects on the one hand, and, on the other, the persons who exert the profitable prerogatives of the prince. It would be very unbelating to the coming, and highly improper for a prince, to take upon him to give judgment in his own cause:-he cannot be too much on his guard against the illusions of interest and self-love; and even though he were capable of resisting their influence, still he ought not to expose his character to the rash judgments of the multitude. These important reasons ought even to prevent his submitting the decision of causes in which he is concerned, to the ministers and counsellors particularly attached to his person. In all well-regulated states, in countries that are really states, and not the dominions of a despot, the ordinary tribunals decide all causes in which the sovereign is a party, with as much freedom as those between private persons. to be esta blished su preme courts of justice wherein ? 165. The end of all trials at law is justly to determine the disThere ought putes that arise between the citizens. If, therefore, suits are prosecuted before an inferior judge, who examines all the circumstances and proofs relating to them, it is very proper, that, for the greater safety, the party condemned should be allowed to appeal to a superior tribunal, where the sentence of the former judge may be examined, and reversed, if it appear to be ill-founded. But it is necessary that this supreme finally de- tribunal should have the authority of pronouncing a definitive sentence without appeal: otherwise the whole proceeding will be vain, and the dispute can never be determined. causes should be termined. The custom of having recourse to the prince himself, by laying a complaint at the foot of the throne, when the cause has been finally determined by a supreme court, appears to be subject to very great inconveniences. It is more easy to deceive the prince by specious reasons, than a number of magistrates well skilled in the knowledge of the laws; and experience too plainly shows what powerful resources are derived from favour BOOK I. and intrigue in the courts of kings. If this practice be authorized by the laws of the state, the prince ought always to fear CHAP. XIII. that these complaints are only formed with a view of protracting a suit, and procrastinating a just condemnation. A just and wise sovereign will not admit them without great caution; and if he reverses the sentence that is complained of, he ought not to try the cause himself, but submit it to the examination of another tribunal, as is the practice in France. The ruinous length of these proceedings authorizes us to say that it is [80] more convenient and advantageous to the state, to establish a sovereign tribunal, whose definitive decrees should not be subject to a reversal even by the prince himself. It is sufficient for the security of justice that the sovereign keep a watchful eye over the judges and magistrates, in the same manner as he is bound to watch all the other officers in the state,-and that he have power to call to an account and to punish such as are guilty of prevarication. ought to When once this sovereign tribunal is established, the prince 166. The cannot meddle with its decrees; and, in general, he is abso- prince lutely obliged to preserve and maintain the forms of justice. Every attempt to violate them is an assumption of arbitrary forms of power, to which it cannot be presumed that any nation could justice. ever have intended to subject itself. preserve the When those forms are defective, it is the business of the legislator to reform them. This being done or procured in a manner agreeable to the fundamental laws, will be one of the most salutary benefits the sovereign can bestow upon his people. To preserve the citizens from the danger of ruining themselves in defending their rights,-to repress and destroy that monster, chicanery,-will be an action more glorious in the eyes of the wise man, than all the exploits of a conqueror. Justice is administered in the name of the sovereign; the ? 167. The prince relies on the judgment of the courts, and, with good prince reason, looks upon their decisions as sound law and justice. His part in this branch of the government is then to maintain authority of the authority of the judges, and to cause their sentences to the judges. be executed; without which they would be vain and delusive; for justice would not be rendered to the citizens. ought to support the The distri There is another kind of justice named attributive or distri- 168. Of butive, which in general consists in treating every one accord- distributive ing to his deserts. This virtue ought to regulate the distribu-justice. tion of public employments, honours, and rewards in a state. bution of It is, in the first place, a duty the nation owes to herself, to employencourage good citizens, to excite every one to virtue by hon- ments and ours and rewards, and to intrust with employments such persons only as are capable of properly discharging them. In the next place, it is a duty the nation owes to individuals, to show herself duly attentive to reward and honour merit. Although a sovereign has the power of distributing his favours and employments to whomsoever he pleases, and nobody has a rewards. BOOK I. CHAP. XIII. perfect right to any post or dignity,-yet a man who by intense application has qualified himself to become useful to his country, and he who has rendered some signal service to the state, may justly complain if the prince overlooks them, in order to advance useless men without merit. This is treating them with an ingratitude that is wholly unjustifiable, and adapted only to extinguish emulation. There is hardly any fault that in the course of time can become more prejudicial to a state it introduces into it a general relaxation; and its public affairs, being managed by incompetent hands, cannot [81] fail to be attended with ill-success. A powerful state may support itself for some time by its own weight; but at length it falls into decay; and this is perhaps one of the principal causes of those revolutions observable in great empires. The sovereign is attentive to the choice of those he employs, while he feels himself obliged to watch over his own safety, and to be on his guard: but when once he thinks himself elevated to such a pitch of greatness and power as leaves him nothing to fear, he follows his own caprice, and all public offices are distributed by favour. transgres sors. of the right ing. 2169. Pun- The punishment of trangressors commonly belongs to disishment of tributive justice, of which it is really a breach; since good order requires that malefactors should be made to suffer the punishments they have deserved. But, if we would clearly establish this on its true foundations, we must recur to first Foundation principles. The right of punishing, which in a state of nature of punish belongs to each individual, is founded on the right of personal safety. Every man has a right to preserve himself from injury, and by force to provide for his own security against those who unjustly attack him. For this purpose he may, when injured, inflict a punishment on the aggressor, as well with the view of putting it out of his power to injure him for the future, or of reforming him, as of restraining, by his example, all those who might be tempted to imitate him. Now, when men unite in society,-as the society is thenceforward charged with the duty of providing for the safety of its members, the individuals all resign to it their private right of punishing. To the whole body, therefore, it belongs to avenge private injuries, while it protects the citizens at large. And as it is a moral person, capable also of being injured, it has a right to provide for its own safety, by punishing those who trespass against it; that is to say, it has a right to punish public delinquents. Hence arises the right of the sword, which belongs to a nation, or to its conductor. When the society use it against another nation, they make war; when they exert it in punishing an individual, they exercise vindictive justice. Two things are to be considered in this part of government, -the laws, and their execution. ? 170. Criminal laws. It would be dangerous to leave the punishment of transgressors entirely to the discretion of those who are invested with authority. The passions might interfere in a business which ought to be regulated only by justice and wisdom. The punishment pre-ordained for an evil action, lays a more effectual restraint on the wicked than a vague fear, in which they may deceive themselves. In short, the people, who are commonly moved at the sight of a suffering wretch, are better convinced of the justice of his punishment, when it is inflicted by the laws themselves. Every well-governed state ought then to have its laws for the punishment of criminals. It belongs to the legislative power, whatever that be, to establish them with justice and wisdom. But this is not a proper place for giving a general theory of them: we shall therefore only say that each nation ought, in this as in every other instance, to choose such laws as may best suit her peculiar circumstances. BOOK I. CHAP. XIII. ishment. [82] We shall only make one observation, which is connected ? 171. Dewith the subject in hand, and relates to the degree of punish-gree of punment. From the foundation even of the right of punishing, and from the lawful end of inflicting penalties, arises the necessity of keeping them within just bounds. Since they are designed to procure the safety of the state and of the citizens, they ought never to be extended beyond what that safety requires. To say that any punishment is just since the transgressor knew before-hand the penalty he was about to incur, is using a barbarous language, repugnant to humanity, and to the law of nature, which forbids our doing any ill to others, unless they lay us under the necessity of inflicting it in our own defence and for our own security. Whenever then a particular crime is not much to be feared in society, as when the opportunities of committing it are very rare, or when the subjects are not inclined to it, too rigorous punishments ought not to be used to suppress it. Attention ought also to be paid to the nature of the crime; and the punishment should be proportioned to the degree of injury done to the public tranquillity and the safety of society, and the wickedness it supposes in the criminal.' These maxims are not only dictated by justice and equity, but also as forcibly recommended by prudence and the art of government. Experience shows us that the imagination becomes familiarized to objects which are frequently presented to it. If, therefore, terrible punishments are multiplied, the people will become daily less affected by them, and at length contract, like the Japanese, a savage and ferocious character:-these bloody spectacles will then no longer produce the effect designed; for they will cease to terrify the wicked. It is with these examples as with honours:-a prince who multiplies titles and distinctions to excess, soon depreciates them, and makes an injudicious use of one of the most powerful and convenient springs of government. When we recollect the practice of the ancient Romans with respect to criminals-when we reflect on their scrupulous attention to BOOK I. spare the blood of the citizens,- -we cannot fail to be struck CHAP. XIII. at seeing with how little ceremony it is now-a-days shed in the generality of states. Was then the Roman republic but ill governed? Does better order and greater security reign among us? It is not so much the cruelty of the punishments, as a strict punctuality in enforcing the penal code, that keeps mankind within the bounds of duty: and if simple robbery is punished with death, what further punishment is reserved to check the hand of the murderer? 172. Ex the laws. The execution of the laws belongs to the conductor of the ecution of state: he is intrusted with the care of it, and is indispensably obliged to discharge it with wisdom. The prince then is to see that the criminal laws be put in execution; but he is not to attempt in his own person to try the guilty. Besides the [83] reasons we have already alleged in treating of civil causes, and which are of still greater weight in regard to those of a criminal nature to appear in the character of a judge pronouncing sentence on a wretched criminal, would ill become the majesty of the sovereign, who ought in every thing to appear as the father of his people. It is a very wise maxim commonly received in France, that the prince ought to reserve to himself all matters of favour, and leave it to the magistrates to execute the rigour of justice. But then justice ought to be exercised in his name, and under his authority. A good prince will keep a watchful eye over the conduct of the magistrates; he will oblige them to observe scrupulously the established forms, and will himself take care never to break through them. Every sovereign who neglects or violates the forms of justice in the prosecution of criminals, makes large strides towards tyranny; and the liberty of the citizens is at an end when once they cease to be certain that they cannot be condemned, except in pursuance of the laws, according to the established forms, and by their ordinary judges. The custom of committing the trial of the accused party to commissioners chosen at the pleasure of the court, was the tyrannical invention of some ministers who abused the authority of their master. By this irregular and odious procedure, a famous minister always succeeded in destroying his enemies. A good prince will never give his consent to such a proceeding, if he has sufficient discernment to foresee the dreadful abuse his ministers may make of it. If the prince ought not to pass sentence himself-for the same reason, he ought not to aggravate the sentence passed by the judges. ing. ? 173. Right The very nature of government requires that the executor of pardon of the laws should have the power of dispensing with them when this may be done without injury to any person, and in certain particular cases where the welfare of the state requires an exception. Hence the right of granting pardons is one of the attributes of sovereignty. But, in his whole conduct, in his severity as well as his mercy, the sovereign ought to have |