rifed, and punished only when public. The na ture of the crime. If actions, indifferent in themfelves, or even useful to the public, were called crimes, both the accufation and the trial could never be too fecret. But can there be any time, committed against the public, which ought not to be publicly punished? I respect all governments; and I speak not of any one in particular. Such may fometimes be the nature of circumftances, that when abufes are inherent in the conftitution, it may be imagined, that to rectify them, would be to deftroy the conftitution itself. But were I to dictate new laws in a remote corner of the universe, the good of posterity, ever present to my mind, would hold back my trembling hand, and prevent me from authorifing fecret accufations.

Public accufations, fays Montefquieu, are more conformable to the nature of a republic, where zeal for the public good is the principal paffion of a citizen, than of a monarchy, in which, as this fentiment is very feeble, from the nature of the government, the best establishment is that of commiffioners, who, in the name of the public, accufe the infractors of the laws. But in all governments as well in a republic as in a monarchy, the punishment, due to the crime of which one accufes another, ought to be inflicted on the informer. CHAP.

CHAP XVI.

Of torture.

THE torture of a criminal, during the courfe of his trial, is a cruelty confecrated by cuftom in most nations. It is ufed with an intent either to make him confefs his crime, or explain some con-tradictions, into which he had been led during his examination; or difcover his accomplices; or for fome kind of metaphyfical and incomprehenfible purgation of infamy; or, finally, in order to discover other crimes, of which he is not accufed, but of which he may be guilty.

No man can be judged a criminal until he be found guilty; nor can fociety take from him. the public protection, until it have been proved that he has violated the conditions on which it was granted. What right, then, but that of power, can authorise the punishment of a citizen, so long as there remains any doubt of his guilt? The dilemma is frequent. Either he is guilty, or not guilty. If guilty, he fhould only fuffer the puni fhment ordained by the laws, and tor--ture becomes ufelefs, as his confeffion is unneceffary. If he be not guilty, you torture the innocent;

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innocent; for, in the eye of the law, every man is innocent, whofe crime has not been proved. Besides, it is confounding all relations, to expect that a man fhould be both the accufer and ac-.. cufed; and that pain fhould be the teft of truth, as if truth refided in the muscles and fibres of a wretch in torture. By this method, the robuft will efcape, and the feeble be condemned. These are the inconveniencies of this pretended teft of truth, worthy only of a cannibal ; and which the Romans, in many refpects barbarous, and whofe favage virtue has been too much admired,, referved for the Haves alone.

What is the political intention of punish ments? To terrify, and to be an example to others. Is this intention anfwered, by thus privately torturing the guilty and the innocent? It is doubtlefs of importance, that no crime should remain unpunished: but it is ufeless to make a public example of the author of a crime hid in darknefs. A crime already committed, and for which there can be no remedy, can only be punifhed by a political fociety, with an intention that no hopes of impunity should induce others to commit the fame. If it be true, that the number of those, who, from fear or virtue, respect the laws, is greater than of thofe by whom they are violated, the risk of torturing an innocent perfon

perfon is greater, as there is a greater probability that, cæteris paribus, an individual hath obferved, than that he hath infringed the laws.

There is another ridiculous motive for torture, namely, to purge a man from infamy. Ought fuch an abufe to be tolerated in the eighteenth century? Can pain, which is a fenfation, have any connection with a moral fentiment, a matter of opinion? Perhaps the rack may be confidered as a refiner's furnace.

It is not difficult to trace this fenfelefs law to its origin; for an abfurdity, adopted by a whole nation, must have fome affinity with, other ideas, established and refpected by the fame nation. This cuftom feems to be the offspring of religion, by which mankind, in all nations and in all ages, are fo generally influenced. We are taught by our infallible church, that thofe ftains of fin, contracted through human frailty, and which have not deferved the eternal anger of the Almighty, are to be purged away, in another life, by an incomprehenfible fire. Now infamy is a ftain, and if the punishments and fire of purgatory can take away all fpiritual ftains, why should not the pain of torture take away thofe of a civil nature? I imagine, that the confeffion of a criminal, which in fome tribunals is required, as being effential to his condemnation, has a fimilar origin,

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original, and has been taken from the mysterious tribunal of penitence, where the confeffion of fins is a neceffary part of the facrament. Thus have men abused the unerring light of revelation; and in the times of tractable ignorance, having no other, they naturally had recourfe to it on every occafion, making the most remote and abfurd applications. Moreover, infamy is a fentiment regulated neither by the laws nor by reafon, but entirely by opinion. But torture renders the victim infamous, and therefore cannot take infamy away.

Another intention of torture is, to oblige the fuppofed criminal to reconcile the contradictions into which he may have fallen during his examination; as if the dread of punishment, the uncertainty of his fate, the folemnity of the court, the majefty of the judge, and the ignorance of the accufed, were not abundantly fufficient to account for contradictions, which are fo common to men even in a state of tranquillity; and which must neceffarily be multiplied by the perturbation of the mind of a man, entirely enga ged in the thought of faving himself from imminent danger.

This infamous teft of truth is a remaining monument of that ancient and favage legislation, in which trials by fire, by boiling water, or the uncer