some remnants of the laws of an ancient conquering people, which a prince who reigned in constantinople some 1,200 years ago caused to be compiled, mixed up afterwards with lombard rites and packed in the miscellaneous volumes of private and obscure commentators—these are what form that set of traditional opinions which from a great part of europe receive nevertheless the name of laws; and to this day it is a fact, as disastrous as it is common, that some opinion of carpzovius, some old custom pointed out by clarus, or some form of torture suggested in terms of complacent ferocity by farinaccius, constitute the laws, so carelessly followed by those, who in all trembling ought to exercise their government over the lives and fortunes of men. these laws, the dregs of the most barbarous ages, are examined in this book in so far as regards criminal jurisprudence, and i have dared to expose their faults to the directors of the public happiness in a style which may keep at[112] a distance the unenlightened and intolerant multitude. the spirit of frank inquiry after truth, of freedom from commonplace opinions, in which this book is written, is a result of the mild and enlightened government under which the author lives. the great monarchs, the benefactors of humanity, who are now our rulers, love the truths expounded, with force but without fanaticism, by the obscure philosopher, who is only roused to indignation by the excesses of tyranny, but is restrained by reason; and existing abuses, for whosoever well studies all the circumstances, are the satire and reproach of past ages, and by no means of the present age or of its lawgivers.
whoever, therefore, shall wish to honour me with his criticisms, i would have begin with a thorough comprehension of the purpose of my work—a purpose which, so far from diminishing legitimate authority, will serve to increase it, if opinion can effect more over men’s minds than force, and if the mildness and humanity of the government shall justify it in the eyes of all men. the ill-conceived criticisms that have been published against this book are founded on confused notions, and compel me to interrupt for a moment the arguments i was addressing to my enlightened readers, in order to close once for all every door against the misapprehensions of timid bigotry or against the calumnies of malice and envy.
[113]
there are three sources of the moral and political principles which govern mankind, namely, revelation, natural law, and social conventions. with regard to their principal object there is no comparison between the first and the other two, but they all resemble one another in this, that they all three conduce to the happiness of this present mortal life. to consider the different relations of social conventions is not to exclude those of revelation and natural law; rather it is the thousandfold changes which revelation and natural law, divine and immutable though they be, have undergone in the depraved mind of man, by his own fault, owing to false religions and arbitrary notions of virtue and vice, that make it appear necessary to examine, apart from all other considerations, the result of purely human conventions, expressed or implied, for the public need and welfare: this being an idea in which every sect and every moral system must necessarily agree; and it will always be a laudable endeavour, which seeks to constrain the headstrong and unbelieving to conform to the principles that induce men to live together in society. there are, then, three distinct kinds of virtue and vice—the religious, the natural, and the political. these three kinds ought never to conflict, although all the consequences and duties that flow from any one of them do not necessarily flow from the others. the natural law does not require all that revelation requires,[114] nor does the purely social law require all that natural law requires; but it is most important to distinguish the consequences of the conventional law—that is, of the express or tacit agreements among men—from the consequences of the natural law or of revelation, because therein lies the limit of that power, which can rightly be exercised between man and man without a special mandate from the supreme being. consequently the idea of political virtue may, without any slur upon it, be said to be variable; that of natural virtue would be always clear and manifest, were it not obscured by the stupidity or the passions of men; whilst the idea of religious virtue remains ever one and the same, because revealed directly from god and by him preserved.
it would, therefore, be a mistake to ascribe to one, who only discusses social conventions and their consequences, principles contrary either to natural law or to revelation, for the reason that he does not discuss them. it would be a mistake, when he speaks of a state of war as anterior to a state of society, to understand it in the sense of hobbes, as meaning that no obligation nor duty is prior to the existence of society, instead of understanding it as a fact due to the corruption of human nature and the want of any expressed sanction. it would be a mistake to impute it as a fault to a writer who is considering the results of the social compact[115] that he does not admit them as pre-existent to the formation of the compact itself.
divine justice and natural justice are in their essence immutable and constant, because the relation between similar things is always the same; but human or political justice, being nothing more than a relation between a given action and a given state of society, may vary according as such action becomes necessary or useful to society; nor is such justice easily discernible, save by one who analyses the complex and very changeable relations of civil combinations. when once these principles, essentially distinct, become confused, there is no more hope of sound reasoning about public matters. it appertains to the theologian to fix the boundaries between the just and the unjust, in so far as regards the intrinsic goodness or wickedness of an act; to fix the relations between the politically just and unjust appertains to the publicist; nor can the one object cause any detriment to the other, when it is obvious how the virtue that is purely political ought to give place to that immutable virtue which emanates from god.
whoever, then, i repeat, will honour me with his criticisms, let him not begin by supposing me to advocate principles destructive of virtue or religion, seeing that i have shown that such are not my principles; and instead of his proving me to be an infidel or a[116] rebel, let him contrive to find me a bad reasoner or a shortsighted politician; but let him not tremble at every proposition on behalf of the interests of humanity; let him convince me either of the inutility or of the possible political mischief of my principles; let him prove to me the advantage of received practices. i have given a public testimony of my religion and of my submission to my sovereign in my reply to the notes and observations; to reply to other writings of a similar nature would be superfluous; but whoever will write with that grace which becomes honest men, and with that knowledge which shall relieve me from the proof of first principles, of what character soever, he shall find in me not so much a man who is eager to reply as a peaceable lover of the truth.
