78 them. The best laws are useless, if they be not observed The na To enforce tion ought then to take pains to fupport them, and to cause them to be respected and punctually executed: with this view the cannot adopt measures too just, too extensive, or too effectual; for hence, in a great degree, depend her happiness, glory, and tranquillity. nd duties of the We have already obferved (§ 41) that the fovereign, who reFunctions presents a nation and is invested with its authority, is alfo charged with its duties. An attention to make juftice flourish in the Prince in ftate muft then be one of the principal functions of the prince; is refpect, and nothing can be more worthy of the fovereign majesty. The emperor Juftinian thus begins his book of the Inftitutes: Imperatoriam maje/latem non folum armis decoratam, fed etiam legibus oportet effe armatam, ut utrumque tempus, & bellorum & pacis, recte poffit gubernari. The degree of power intrusted by the nation to the head of the state, is then the rule of his duties and his functions in the administration of justice. As the nation may either referve the legislative power to icfelf, or intruft it to a felect body,-it has alío a right, if it thinks proper, to eftablish a fupreme tribunal to judge of all difputes, independently of the prince. But the conductor of the state must naturally have a confiderable share in legiflation, and it may even be entirely intruited to him. In this laft cafe, it is he who must establish falutary laws, dictated by wifdom and equity: but in all cafes, he thould be the guardian of the law; he fhould watch over those who are invested with authority, and confine each individual within the bounds of duty. $163. The executive power naturally belongs to the fovereign,-to How he is every conductor of a people: he is fuppofed to be invested with to difpenfe it, in its fullest extent, when the fundamental laws do not rejustice. ftrict it. When the laws are established, it is the prince's province to have them put in execution. To fupport them with vigour, and to make a just application of them to all cafes that prefent themselves, is what we call rendering justice. And this is the duty of the fovereign, who is naturally the judge of his people. We have feen the chiefs of fome small states perform thefe functions themfelves: but this cuftom becomes inconvenient, and even impoffible, in a great kingdom. § 163. appoint en The best and fafeft method of diftributing juftice is by eftaHe ought to blifhing judges, distinguished by their integrity and knowledge, lightened to take cognifance of all the difputes that may arife between the and upright citizens. It is impoffible for the prince to take upon himself judges. this painful task: he cannot fpare fufficient time either for the thorough investigation of all caufes, or even for the acquifition of the knowledge neceffary to decide them. As the fovereign cannot perfonally discharge all the functions of government, he fhould, with a juft difcernment, referve to himself fuch as he can fuccefsfully perform, and are of most importance,-intrusting the others to officers and magiftrates who fhall execute ther under his authority. There is no inconvenience in trusting the decifion decifion of a law-fuit to a body of prudent, honeft, and enlight ened men :-on the contrary it is the beft mode the prince can poffibly 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 fuitable 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. nary courts caufes re lating to the revenue. The establishment of courts of justice is particularly neceffary§ 164. for the decision of all fifcal caufes,-that is to fay, all the difputes The ordithat may arife between the fubjects on the one hand, and, on fhould dethe other, the perfons who exert the profitable prerogatives of termine the prince. It would be very unbecoming, and highly improper for a prince, to take upon him to give judgment in his own caufe: he cannot be too much on his guard against the illufions of intereft and felf-love; and even though he were capable of refifting their influence, ftill he ought not to expofe his character to the rafh judgments of the multitude. Thefe important reasons ought even to prevent his fubmitting the decifion of caufes in which he is concerned, to the minifters and counsellors particularly attached to his perfon. In all well-regulated states, in countries that are really ftates, and not the dominions of a defpot, the ordinary tribunals decide all caufes in which the fovereign is a party, with as much freedom as those between private perfons. of The end of all trials at law is juftly to determine the difputes§ 165. that arife between the citizens. If, therefore, fuits are profe- There cuted before an inferior judge, who examines all the circum-established ought to be ftances and proofs relating to them, it is very proper, that, for fupreme the greater fafety, the party condemned fhould be allowed to ap- courts peal to a fuperior tribunal, where the fentence of the former wherein judge may be examined, and reverfed, if it appear to be ill- caufes founded. But it is neceffary that this fupreme tribunal fhould fhould be have the authority of pronouncing a definitive fentence without finally deappeal: otherwife the whole proceeding will be vain, and the difpute can never be determined. The custom of having recourfe to the prince himself, by laying a complaint at the foot of the throne, when the caufe has been finally determined by a fupreme court, appears to be fubject to very great inconveniences. It is more eafy to deceive the prince by fpecious reafons, than a number of magiftrates well fkilled in the knowledge of the laws; and experience too plainly fhews, what powerful refources are derived from favour and intrigue in the courts of kings. If this practice be authorised by the laws of the ftate, the prince ought always to fear that these complaints are only formed with a view of protracting a fuit, and procrastinating a juft condemnation. A juft and wife fovereign 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 fubmit it to the examination of another tribunal, as is the practice in France. The ruinous length of thefe termined. thefe proceedings authorifes us to fay, that it is more convenient and advantageous to the ftate, to establish a fovereign tribunal, whofe definitive decrees fhould not be subject to a reverfal even by the prince himself. It is fufficient for the fecurity of justice, that the fovereign keep a watchful eye over the judges and magiftrates, in the fame manner as he is bound to watch all the other officers inthe ftate,-and that he have power to call to an account and to punish fuch as are guilty of prevarication. § 166. When once this fovereign tribunal is established, the prince The prince cannot meddle with its decrees; and, in general, he is abfolutely ought to obliged to preserve and maintain the forms of juftice. Every preferve the forms of attempt to violate them is an affumption of arbitrary power, to justice. which it cannot be prefumed that any nation could ever have intended to fubject itself. When those forms are defective, it is the bufinefs of the legiflator to reform them. This being done or procured in a manner agreeable to the fundamental laws, will be one of the most falutary benefits the fovereign can bestow upon his people. To preferve the citizens from the danger of ruining themselves in defending their rights,-to reprefs and deftroy that monster, chicanery,--will be an action more glorious in the eyes of the wife man, than all the exploits of a conqueror. § 167. Juftice is administered in the name of the fovereign; the The prince prince relies on the judgment of the courts, and, with good reaought to fupport the fon, looks upon their decifions as found law and juftice. His authority of part in this branch of the government is then to maintain the the judges. authority of the judges, and to cause their fentences to be executed; without which, they would be vain and delufive; for juftice would not be rendered to the citizens. rewards. § 168. There is another kind of justice named attributive or diftribuOf diftribu- tive, which in general confifts in treating every one according tive justice. to his deferts. This virtue ought to regulate the diftribution of The diftri- public employments, honours, and rewards in a ftate. It is, in bution of the first place, a duty the nation owes to herself, to encourage employments and good citizens, to excite every one to virtue by honours and rewards, and to intruft with employments fuch perfons only as are capable of properly discharging them. In the next place, it is a duty the nation owes to individuals, to thew herself duly atten tive to reward and honour merit. Although a fovereign has the power of diftributing his favours and employments to whomfoever he pleafes, and nobody has a perfect right to any post or dignity, yet a man who by intenfe application has qualified himfelf to become ufeful to his country, and he who has rendered fome fignal fervice to the ftate, may juftly complain if the prince overlooks them, in order to advance ufelefs men without merit. This is treating them with an ingratitude that is wholly unjusti fiable, and adapted only to extinguifh emulation. There is hardly any fault that in a course of time can become more prejudicial to a ftate: it introduces into it a general relaxation; and its public affairs, being managed by incompetent hands, cannot fail to be be attended with ill-fuccefs. A powerful ftate may support itself for fome time by its own weight; but at length it falls into decay; and this is perhaps one of the principal causes of those revolutions obfervable in great empires. The fovereign is attentive to the choice of thofe he employs, while he feels himself obliged to watch over his own fafety, and to be on his guard: but when once he thinks himself elevated to fuch a pitch of greatnefs and power as leaves him nothing to fear, he follows his own caprice, and all public offices are diftributed by favour. ing. The punishment of tranfgreffors commonly belongs to distri § 169. butive juftice, of which it is really a branch; fince good order Punishment requires that malefactors fhould be made to fuffer the punish- of tranf greflors. ments they have deserved. But if we would clearly establish this on its true foundations, we must recur to first principles. The right of punishing, which in a state of nature belongs to Foundation each individual, is founded on the right of perfonal fafety. of the right Every man has a right to preferve himself from injury, and by of punishforce to provide for his own fecurity, against those who unjustly attack him. For this purpose, he may, when injured, inflict a punishment on the aggreffor, 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 fociety,as the fociety is thenceforward charged with the duty of providing for the fafety of its members, the individuals all refign 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 perfon, capable also of being injured, it has a right to provide for its own fafety, by punishing those who trefpafs against it; that is to fay, it has a right to punish public delinquents. Hence arifes the right of the fword, which belongs to a nation, or to its conductor. When the fociety ufe it against another nation, they make war; when they exert it in punishing an individual, they exercise vindictive justice. Two things are to be confidered in this part of government,-the laws, and their execution. laws. It would be dangerous to leave the punishment of tranfgreffors § 170. entirely to the difcretion of those who are invefted with autho- Criminal rity. The paffions might interfere in a bufinefs which ought to be regulated only by juftice and wisdom. The punishment, preordained for an evil action, lays a more effectual reftraint on the wicked, than a vague fear, in which they may deceive themfelves. In fhort, the people, who are commonly moved at the fight of a fuffering wretch, are better convinced of the justice of his punithment, when it is inflicted by the laws themselves. Every well-governed ftate ought then to have its laws for the pu nifhment of criminals. It belongs to the legiflative power, whatever that be, to eftablish them with juftice and wifdom. But this is not a proper place for giving a general theory of them: we fhall therefore only fay, that each nation ought, in this as in every G other punish ment. other inftance, to chufe fuch laws as may beft fuit her peculiar circumstances. 8171. We fhall only make one obfervation, which is connected with Degree of the fubject in hand, and relates to the degree of punishment. From the foundation even of the right of punishing, and from the lawful end of inflicting penalties, arifes the neceffity of keeping them within juft bounds. Since they are defigned to procure the fafety of the ftate and of the citizens, they ought never to be extended beyond what that fafety requires. To lay that any punishment is juft fince the tranfgreffor knew beforehand the penalty he was about to incur, is ufing 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 neceffity of inflicting it in our own defence and for our own fecurity. Whenever then a particular crime is not much to be feared in fociety, as when the opportunities of committing it are very rare, or when the fubjects 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 fhould be proportioned to the degree of injury done to the public tranquillity and the fafety of fociety, and the wickedness it fuppofes in the criminal. These maxims are not only dictated by justice and equity, but alfo as forcibly recommended by prudence and the art of government. Experience fhews us, that the imagination becomes familiarifed to objects which are frequently prefented to it. If, therefore, terrible punishments are multiplied, the people will become daily lefs affected by them, and at length contract, like the Japanese, a favage and ferocious character:-these bloody fpectacles will then no longer produce the effect defigned; for they will ceafe to terrify the wicked. It is with thefe examples as with honours:-a prince who multiplies titles and diftinctions to excefs, foon depreciates them, and makes an injudicious ufe of one of the most powerful and convenient fprings of government. When we recollect the practice of the ancient Romans with refpect to criminals,-when we reflect on their fcrupulous attention to spare the blood of the citizens,—we cannot fail to be ftruck at feeing with how little ceremony it is now-a-days fhed in the generality of ftates. Was then the Roman republic but ill governed? Does better order and greater fecurity reign among us?-It is not fo 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 fimple robbery is punished with death, what further punishment is referved to check the hand of the murderer? § 172. The execution of the laws belongs to the conductor of the Execution ftate: he is intrufted with the care of it, and is indispensably of the laws. obliged to discharge it with wifdom. The prince then is to fee that the criminal laws be put in execution; but he is not to attempt in his own perfon to try the guilty. Befides the reafons we |