CRIMES AGAINST PERSONAL SECURITY—ACTS OF VIOLENCE—PUNISHMENTS OF NOBLES.
After crimes of high treason come crimes opposed to the personal security
of individuals. This security being the primary end of every properly
constituted society, it is impossible not to affix to the violation of
any citizen’s right of personal security one of the severest punishments
that the laws allow.
Some crimes are injuries to a man’s person, others to his property, and
the former should certainly be punished by corporal punishments.
Offences, therefore, against personal security and liberty are among the
greatest of crimes. Under this head fall not only the assassinations and
thefts of the common people, but those also committed by the nobles and
magistrates, whose influence, acting with greater force and to a greater
distance, destroys in those subject to them all ideas of justice and
duty, and gives strength to those ideas of the right of the strongest,
which are equally perilous ultimately to him who exercises no less than
to him who endures it.
Neither the noble nor the rich man ought to be able to pay a price for
injuries committed against the feeble and the poor; else riches, which,
under the protection of the laws, are the prize of industry, become the
nourishment of tyranny. Whenever the laws suffer a man in certain cases
to cease to be a _person_ and to become a _thing_, there is no liberty;
for then you will see the man of power devoting all his industry to
gather from the numberless combinations of civil life those which the law
grants in his favour. This discovery is the magic secret that changes
citizens into beasts of burden, and in the hand of the strong man forms
the chain wherewith to fetter the actions of the imprudent and the weak.
This is the reason why in some governments, that have all the semblance
of liberty, tyranny lies hidden or insinuates itself unforeseen, in some
corner neglected by the legislator, where insensibly it gains force and
grows.
Men oppose the strongest barriers against open tyranny, but they see
not the imperceptible insect, which gnaws them away, and makes for the
invading stream an opening that is all the more sure by very reason of
its concealment from view.
Of what kind, then, will be the punishments due to the crimes of nobles,
whose privileges form so great a part of the laws of different countries?
I will not here inquire whether this traditional distinction between
nobles and commons be advantageous in a government, or necessary in a
monarchy; nor whether it be true that a nobility forms an intermediate
power in restraint of the excesses of the two extremes, and not
rather a caste which, in slavery to itself and to others, confines all
circulation of merit and hope to a very narrow circle, like those fertile
and pleasant oases scattered among the vast sand-deserts of Arabia; nor
whether, supposing it to be true that inequality is inevitable and useful
in society, it be also true that such inequality should subsist between
classes rather than individuals, and should remain with one part of the
body politic rather than circulate through the whole; whether it should
rather perpetuate itself than be subject to constant self-destruction and
renovation. I will confine myself to the punishments proper for nobles,
affirming that they should be the same for the greatest citizen as for
the least. Every distinction of honour or of riches presupposes, to be
legitimate, a prior state of equality, founded on the laws, which regard
all subjects as equally dependent on themselves. One must suppose the
men, who renounced their natural state of despotic independence, to have
said: ‘Let him who is more industrious than his fellows have greater
honours, and let his fame be greater among his successors; let him who
is more prosperous and honoured hope even to become more so, but let him
fear no less than other men to break those conditions by virtue of which
he is raised above them.’ True it is that such decrees did not emanate in
a convocation of the human race, but such decrees exist in the eternal
relations of things; they do not destroy the supposed advantages of a
nobility, though they prevent its abuses; and they make laws feared,
by closing every admission to impunity. And if any one shall say that
the same punishment inflicted upon a noble and upon a commoner is not
really the same, by reason of the diversity of their education, and of
the disgrace spread over an illustrious family, I will reply, that the
sensibility of the criminal is not the measure of punishment, but the
public injury, and that this is all the greater when committed by the
more highly favoured man; that equality of punishment can only be so when
considered extrinsically, being really different in each individual; and
that the disgrace of a family can be removed by public proofs of kindness
on the part of the sovereign towards the innocent family of the criminal.
And who is there but knows that formalities which strike the senses serve
as reasonings with the credulous and admiring populace?