from political morality, unless founded on the immutable sentiments of mankind, no lasting advantage can be hoped. whatever law deviates from these sentiments will encounter a resistance which will ultimately prevail over it, just in the same way as a force, however slight, if constantly applied, will prevail over a violent motion applied to any physical body.
if we consult the human heart we shall therein discover the fundamental principles of the real right of the sovereign to punish crimes.
no man has gratuitously parted with a portion of his own liberty with a view to the public good; that is a chimera which only exists in romances. each one of us would wish, if it were possible, that the[122] covenants which bind others should not bind himself. there is no man but makes himself the central object of all the combinations of the globe.
the multiplication of the human race, slight in the abstract, but far in excess of the means afforded by nature, barren and deserted as it originally was, for the satisfaction of men’s ever increasing wants, caused the first savages to associate together. the first unions necessarily led to others to oppose them, and so the state of war passed from individuals to nations.
laws are the conditions under which men, leading independent and isolated lives, joined together in society, when tired of living in a perpetual state of war, and of enjoying a liberty which the uncertainty of its tenure rendered useless. of this liberty they voluntarily sacrificed a part, in order to enjoy the remainder in security and quiet. the sum-total of all these portions of liberty, sacrificed for the good of each individually, constitutes the sovereignty of a nation, and the sovereign is the lawful trustee and administrator of these portions. but, besides forming this trust-fund, or deposit, it was necessary to protect it from the encroachments of individuals, whose aim it ever is not only to recover from the fund their own deposit, but to avail themselves of that contributed by others. ‘sensible motives,’ were therefore wanted to divert the despotic will of the individual from re-plunging into their primitive chaos the laws of society.[123] such motives were found in punishments, established against transgressors of the laws; and i call them sensible motives, because experience has shown that the majority of men adopt no fixed rules of conduct, nor avoid that universal principle of dissolution, observable alike in the moral as in the physical world, save by reason of motives which directly strike the senses and constantly present themselves to the mind, counterbalancing the strong impressions of private passions, opposed as they are to the general welfare; not eloquence, nor declamations, nor the most sublime truths have ever sufficed to curb the passions for any length of time, when excited by the lively force of present objects.
as it, then, was necessity which constrained men to yield a part of their individual liberty, it is certain that each would only place in the general deposit the least possible portion—only so much, that is, as would suffice to induce others to defend it. the aggregate of these least possible portions constitutes the right of punishment; all that is beyond this is an abuse and not justice, a fact but not a right.[64] punishments[124] which exceed what is necessary to preserve the deposit of the public safety are in their nature unjust; and the more just punishments are, the more sacred and inviolable is personal security, and the greater the liberty that the sovereign preserves for his subjects.
