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Reflections on crimes and sentences.



Freedom is fostered by the nature of punishments & their measure.

Freedom triumphs, when criminal law calls for a punishment that suits the nature of the crime. There is no arbitration; the penalty is not the product of the Legislator, but of the crime; & it is not man’s brutality against man.

There are four types of crime. Those of the first type are against religion; those of the second type are against morality; those of the third type are against peace; those of the fourth type are against public safety. Penalties inflicted must derive from the nature of each of these areas of crime.

I only include in the category of crimes against religion those that directly attack it, as are all forms of general


sacrilege. [...]


The second category of crimes are those against morality. They include the violation of public or individual conduct, that is to say, of rules on the manner in which to make use of the senses & of the union of bodies. Penalties for these crimes must also reflect the nature of the matter. Deprivation of social pleasures that society attaches to moral purity, fines, shame, a life in hiding, public disgrace, expulsion from the City & from society;


these penalties under the correctional system suffice to repress temerity between the two sexes [...]

The third category of crimes are those that hinder the peace of the community; & the penalties must reflect the nature of the crime, & provide this tranquility; such as deprivation [prison], exile, correctional measures, & other penalties that will soothe worried minds & return them to a normal state.[...]

Penalties for the latter crimes are known as ‘eye-for-eye’ retribution, by which society denies safety to a citizen who chose or wished to deprive another of the same. The penalty is made to reflect the nature of the crime, is based on reason & on the notion of right & wrong. A


citizen merits death, if in violating one’s rights he caused death, or attempted to do so. The penalty of death is a sort of remedy for an ailing society. When safeguards are violated in terms of ownership, there may be reasons for imposing capital punishment: however, it might be preferable, & possibly more natural, that crimes against the safeguard of property be punished by a loss of property; & it should be so, if the wealth were on an equal scale. But since it is those who have few riches who more willingly reach for those of others, it was necessary that corporal punishment replace financial retribution.

All that I have stated is founded on nature, & very beneficial to individual freedom.

Source: Secondat Baron de La Brède et de Montesqieu, Charles-Louis de, "Reflections on crimes and sentences, in De l'esprit des loix " (Amsterdam et Leipsick: Nouvelle édition, revue, corrigée et considérablement augmentée par l’auteur [...], Chez Arkstée et Merkus, 1764), T. 2, L. 12, p. 7-11.

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