CRIMES OF DIFFICULT PROOF.
There are some crimes which, are at the same time frequent in society and
yet difficult to prove, as adultery, pederasty, infanticide.
Adultery is a crime which, politically considered, derives its force and
direction from two causes, namely, from the variable laws in force among
mankind, and from that strongest of all attractions which draws one sex
towards the other.[70]
Had I to address nations still destitute of the light of religion, I
would say that there is yet another considerable difference between
adultery and other crimes. For it springs from the abuse of a constant
and universal human impulse, an impulse anterior to, nay, the cause of
the institution of society; whereas other crimes, destructive of society,
derive their origin rather from momentary passions than from a natural
impulse. To anyone cognisant of history and his kind, such an impulse
will seem to be equivalent in the same climate to a constant quantity;
and if this be so, those laws and customs which seek to diminish the
sum-total will be useless or dangerous, because their effect will be to
burthen one half of humanity with its own needs and those of others;
but those laws, on the contrary, will be the wisest, which following,
so to speak, the gentle inclination of the plain, divide the total
amount, causing it to ramify into so many equal and small portions,
that aridity or overflowing are equally prevented everywhere. Conjugal
fidelity is always proportioned to the number and to the freedom of
marriages. Where marriages are governed by hereditary prejudices, or
bound or loosened by parental power, there the chains are broken by
secret intrigue, in despite of ordinary morality, which, whilst conniving
at the causes of the offence, makes it its duty to declaim against the
results. But there is no need of such reflections for the man who,
living in the light of true religion, has higher motives to correct the
force of natural effects. Such a crime is of so instantaneous and secret
commission, so concealed by the very veil the laws have drawn round it
(a veil necessary, indeed, but fragile, and one that enhances, instead
of diminishing, the value of the desired object), the occasions for it
are so easy, and the consequences so doubtful, that the legislator has
it more in his power to prevent than to punish it. As a general rule,
in every crime which by its nature must most frequently go unpunished,
the penalty attached to it becomes an incentive. It is a quality of our
imagination, that difficulties, if they are not insurmountable nor too
difficult, relatively to the mental energy of the particular person,
excite the imagination more vividly, and place the object desired in
larger perspective; for they serve as it were as so many barriers to
prevent an erratic and flighty fancy from quitting hold of its object;
and, while they compel the imagination to consider the latter in all its
bearings, it attaches itself more closely to the pleasant side, to which
our mind most naturally inclines, than to the painful side, which it
places at a distance.
Pederasty, so severely punished by the laws, and so readily subjected
to the tortures that triumph over innocence, is founded less on the
necessities of man, when living in a state of isolation and freedom,
than on his passions when living in a state of society and slavery. It
derives its force not so much from satiety of pleasure as from the system
of education now in vogue, which, beginning by making men useless to
themselves in order to make them useful to others, causes, by its too
strict seclusion, a waste of all vigorous development, and accelerates
the approach of old age.
Infanticide equally is the result of the unavoidable dilemma in which
a woman is placed who from weakness or by violence has fallen. Finding
herself placed between the alternative of infamy on the one side, and
the death of a being insentient of its pains on the other, how can she
fail to prefer the latter to the infallible misery awaiting both herself
and her unhappy offspring? The best way to prevent this crime would be
to give efficient legal protection to weakness against tyranny, which
exaggerates those vices that cannot be hidden by the cloak of virtue.
I do not pretend to diminish the just wrath these crimes deserve; but, in
indicating their sources, I think myself justified in drawing one general
conclusion, and that is, that no punishment for a crime can be called
exactly just—that is, necessary—so long as the law has not adopted the
best possible means, in the circumstances of a country, to prevent the
crimes it punishes.