A proposition which may be made more general, thus. The aggregate of these, the smallest portions possible, forms the right of punishing: all that extends beyond this is abuse, not justice. It is not only the common interest of mankind, that crimes should not be committed, but that crimes of every kind should be less frequent, in proportion to the evil they produce to society.
Every act of authority of one man over another, for which there is not an absolute necessity, is tyrannical. Observe, that by justice I understand nothing more, than that bond, which is necessary to keep the interest of individuals united; without which, men would return to their original state of barbarity. Therefore, the means made use of by the legislature to prevent crimes, should be more powerful, in proportion as they are destructive of the public safety and happiness, and as the inducements to commit them are stronger.
Errors, accumulated through many centuries, have never been exposed by ascending to general principles; nor has the force of acknowledged truths been ever opposed to the unbounded licentiousness of ill-directed power, which has continually produced so many authorized examples of the most unfeeling barbarity.
Surely, the groans of the weak, sacrificed to the cruel ignorance, and indolence of the powerful; the barbarous torments lavished, and multiplied with useless severity, for crimes either not proved, or in their nature impossible; the filth and horrors of a prison, increased by the most cruel tormentor of the miserable, uncertainty, ought to have roused the attention of those whose business is to direct the opinions of mankind.
If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter men from committing the greater, as often as it is attended with greater advantage. Is it possible that torments and useless cruelty, the instrument of furious fanaticism, or the impotency of tyrants, can be authorised by a political bldy?
Which, so far from being influences by passion, should be the cool moderator of the passions of individuals.
By this knowledge, commerce is animated, and there has sprung up a spirit of emulation, and industry, worthy of rational beings.
These are the produce of this enlightened age; but the cruelty of punishments, and the irregularity of proceeding in criminal cases, so principal a part of the legislation, and so much neglected throughout Europe, has hardly ever been called in question.
But men generally abandon the care of their most important concerns to the uncertain prudence and discretion of those, whose interest it is to reject the best, and wisest institutions; and it is not till they have been led into a thousand mistakes in matters, the most essential to their lives and liberties, and are weary of suffering, that they can be induced to apply a remedy to the evils, with which they are oppressed.
It is then they begin to conceive, and acknowledge the most palpable truths, which, from their very simplicity, commonly escape vulgar minds, incapable of analysing objects, accustomed to receive impressions without distinction, and to be determined rather by the opinions of others, than by the result of their own examination.