Grand Instructions to the Commissioners, appointed to frame a new Code of Laws for the Russian Empire. Composed by Her Imperial Majesty Catherine II [The Macartney-Dukes text]
- 632. In collecting the Taxes, the greatest Exactness ought to be observed, as well as the greatest Moderation and Humanity.
- 633. We ought to observe here, that Gold and Silver, which represent alternately the Commodities, and the Signs of whatever can be made use of in Exchange, are procured either from the Mines, or by Commerce.
- 634. Gold and Silver are considered either as the first simple Material [Bullion], or as a Thing constructed by Art [Bullion coined, which is Money].
- 635. Commodities or Goods, and every Species of moveable Property, are frequently the Object of the interior Circulation, and of that Erode which is carried on with foreign States.
- 636. And in this Case, especially with respect to foreign Trade, it is highly necessary to examine, whether the Traffick with the first Raw Materials, together with the Manifactures constructed from them; or whether the One or the other of them is carried on by our own People?
- 637. Real Wealth might be greatly increased by that, which is imagmary.
- 638. Imaginary Wealth is founded upon Credit or Confidence', that is, upon the ingrafted and received Opinion of the faithful and punctual Payment of a Debt, when it becomes due, and of the Ability of the Person who is to pay it.
- 639. Credit, or Confidence, may be either that of the whole Body of the People, which is visible in national Banks, and in the Circulation of some Signs, which from good Regulations of Government have acquired the Force of Credit; or from Confidence in particular Persons, either as Individuals, or as united in a Company.
- 640. As Individuals, they may, by their Integrity, upright Conduct, and extensive Views, become Bankers, not only for one State, but even for the whole Universe.
- 641. Individuals may unite together into great or small Bodies, in mercantile Companies, and then the personal Credit of Individuals increased the Credit of the Public.
- 642. But the Conveniences of natural and acquired Wealth, both real and imaginary, are not confined within the Limits of the present Time; they extend even to the Future, by supplying, in Time of Need, the certain Means for augmenting the Revenue. These also constitute an Offspring of the Oeconomy of the State.
- 643. These Means, or Expedients, are exactly circumstanced like publick Credit', a wise Use of them enlarges, but the Abuse as certainly destroys them.
- 644. It is injurious to a State, when it is totally ignorant of these Expedients, or when it has continual Recourse to them. It ought to seek for them, as if it could not do without them: But, on the other Hand, it ought never to make use of them, except in Time of absolute Necessity, and even then too but sparingly, and with such Precaution, as if no new ones could be found out in future.
- 645. And the true principal Foundations of the Oeconomy of the State lead us to this prudent Management.
- 646. The general Oeconomy of the State is divided into political and domestick.
- 647. The political comprehends the whole Body of the People and Affairs, and a distinct Knowledge of their Situations, their Ranks, and their Employments.
- 648. The whole System of Affairs, both as to Particulars and in general, is necessary to be thoroughly known, that one might judge of their reciprocal Relation to each other, in order to make them altogether useful to the Community.
- 649. The domestick Oeconomy comprehends the following Objects, with respect to the principal Foundations of the Oeconomy of the State. It ought to preserve the Sources of the Revenue untouched, to make them, if possible, yield more abundantly, and to draw Supplies from them, without exhausting or reducing them to Penury.
- 650. With respect to the national Wealth, it ought to preserve the Lands in a well-cultivated State, and to endeavour to better them by Improvement;
- 651. To defend just Rights, to collect the Revenue in such a Manner, that nothing might be lost, which ought to be brought into the publick Exchequer:
- 652. And that, at the Time of discharging the publick Expences, every Part of the Revenue should be applied to those Disbursements for which it was appropriated.
- 653. That the Sum-total of the Expences might not, if possible, exceed the Revenue',
- 654. And that the Accounts should always be regularly kept, and proved by clear indisputable Vouchers.
- 655. From the whole of what /have said here upon the Oeconomy of the State, it evidendy appears, That this very simple and very natural
Division, and the Assemblage and Connection of general Ideas, clear and intelligible to all, lead to the direct determinate Meaning of that Expression, which is of so much Importance to the whole Community: That in this Chapter, all the Parts enter one into another, according to the Propriety of that reciprocal Relation, which they bear to each other: That there is not one amongst them which does not depend upon the rest, and that a single Connection only of all these Parts may establish, strengthen, and perpetuate for ever, the Safety of the State, the Prosperity of the People, and the Glory of the Sovereign.
The Original signed with Her Imperial Majesty’s own Hand, thus,
April 8, 1768.
THE GRAND INSTRUCTIONS
TO THE COMMISSIONERS
APPOINTED TO FRAME A NEW CODE OF LAWS FOR THE RUSSIAN EMPIRE.
COMPOSED BY HER IMPERIAL MAJESTY CATHERINE II
[The Macartney-Dukes Text
- 1. To do all the Good we possibly can to each other, is the great Rule of Christianity.
- 2. Taking it for granted therefore, that this Precept prescribed by Religion, is rooted, or ought to be rooted in the Hearts of all People, we doubt not, but, that it is the Wish of every worthy Member of Society, to see his Native Country raised to the highest degree of Prosperity, Glory, Happiness, and Peace.
- 3. And to see every Individual of his fellow-Citizens protected by Laws, which so far from injuring him, will shield him from every Attempt against his Welfare, and opposite to this Christian Precept.
- 4. In order therefore more speedily and effectually to succeed in accomplishing what we hope is the general Desire, it is necessary to build upon that fundamental Principle, and to consider the natural State of this Empire.
- 5. For those Laws are most conformable to Nature, the peculiar Genuise of which, is best suited to the Circumstances of the People for whom they are instituted.
This natural State of the Empire is described in the three following Chapters.
- 6. Russia is a European Power.
- 7. Of which this is a Demonstration. The Changes undertaken in Russia by Peter the Great, met with the better Success, because the manners then existing (which had been brought in to use by the Conquest of foreign Powers, and the Mixture of various People) disagreed entirely with the nature of the Climate: So that Peter on introducing European Manners and Customs among a European People, found such Facility as he himself never expected.
- 8. The Empire of Russia contains 32 degrees of Latitude, and 165 of Longitude on the Terrestrial Globe.
- 9. The Sovereign is absolute, for no other than absolute Powers vested in one Person, can be suitable to the Extent of so vast an Empire.
- 10. An extensive Empire demands absolute Power in the Person who rules it: it is necessary that Dispatch in the Decision of Affairs sent from distant places compensate for the Delay occasioned by their remoteness.
- 11. Any other than absolute Government, would not only be detrimental, but in the End destructive to Russia.
- 12. Another Reason is that it is better to obey the Laws under the direction of one Master, than to be subject to the Wills of many.
- 13. What is the Object of absolute Government? Certainly not to deprive the People of their natural Liberty, but to direct their Conduct in such manner that the greatest good may be derived from all their Operations.
- 14. That form of Government therefore which promotes this End more than any other, and infringes natural Liberty less than any other, is most conformable to the native Sentiments of reasonable Creatures, and at the same time corresponds best with the End constantly in View in the Establishment of Civil Societies.
- 15. The Intention and End of Absolute Government is the Glory of the Citizens, of the State, and of the Sovereign.
16. This Glory in a People under monarchical Government creates a Sense of Liberty, which in such States, is capable of producing as many great Actions, and of contributing as much to the happiness of the Subjects, as Liberty itself.
- 17. Of the Constitution.
- 18. The intermediate Powers subject to and dependent upon the Supreme Power, form the Substance of Government.
- 19. These I have called intermediate Powers subject to and dependent upon, the Supreme Powers: but in reality, the Sovereign is the Source of all Power Supreme and Civil.
- 20. The fundamental Laws on which the supreme Authority is established, constitute inferior Judicatures, through which the Power of the Sovereign flows as through smaller Channels.
- 21. Such Laws as empower these inferior Courts to represent that some Edicts are contrary to the Constitution, that others are obscure and cannot be fulfilled, and which determine what Edicts must be obeyed, and in what manner they are to be executed, these undoubtedly are the Laws which render the Establishment of every State firm and immovable.
- 22. It is necessary that Laws should have a Sanction.
- 23. This Sanction can only be in the constitutional Courts of Judicature, which publish to the People new made Laws and renew those which had become obsolete.
- 24. These Courts upon receiving the Laws from the Sovereign examine them with Diligence, and have a right to represent whatever they find in them contrary to the Constitution, as above said Chapter 3 Article 21.
- 25. But if nothing exceptionable is found in them, they are registered among those already confirmed and are issued publicly to the People.
- 26. In Russia the Senate is the Depository of the Laws.
- 27. Other Courts of Judicature ought, and may make Representation with the same force to the Senate, and even to the Sovereign as above mentioned.
- 28. Should one still ask, what is the Sanction of the Laws? I answer, The Sanction о the Laws is a particular Instruction by which the above mentioned Courts of Judicature appointed to see the Sovereign’s Will carefully observed according to the fundamental Laws and Establishments of the State are obliged to act in the discharge of their Duty, agreeable to the Order therein prescribed.
- 29. These Instructions restrain the People under penalties from contemning the Edicts of the Sovereign, and at the same time preserve them from their own headstrong Desires and stubborn Inclinations.
- 30. For on the one hand by these Instructions the Sentences passed on Transgressors of the Law are justified, and on the other hand they also justify the Refusing to admit, into the Number of the received Laws, such Regulations for the Administration of Justice and Transaction of public Affairs as are contrary to the good Order of the State.
- 31. Of the Condition of all People in Civil Society.
- 32. It is a great Happiness for Man to be placed in such Circumstances that when his Passions prompt him to be wicked, he nevertheless finds it more for his own Advantage not to be so.
- 33. It is necessary that the Laws provide as much as possible for the Security of every individual Citizen.
- 34. The Equality of Citizens consists in their being all subject to the same Laws.
- 35. This Equality requires a good Establishment which may prevent the Rich from oppressing the Poor, and from converting to their own private Advantage those Employments and Offices entrusted to them only for the benefit of the State.
- 36. Social or civil Liberty consists not in doing every one as he pleases.
- 37. In a State that is in a Collection of People living in Society where Laws are established, Liberty can consist only in the Ability of doing what every one ought to desire, and in not being forced to do what should not be desired.
- 38. It is necessary to have a clear and distinct Idea what Liberty is. Liberty is the right of doing whatever is permitted by the Laws: For where any one Citizen has a power to do what is forbidden by the Laws, Liberty there would no longer exist because others in like manner would have the same Power.
- 39. Civil Liberty is a Tranquility of Mind arising from the Opinion that every individual of the whole Society enjoys his personal Security, And that People may possess this Liberty, the Laws must be such as that no one Citizen need be in fear of another, but that all alike should fear the Laws only.
- 40. Of Laws in general.
- 41. Nothing should be prohibited by Law but what is hurtful either to Individuals, or to the whole Community.
- 42. All Actions having no such Tendency are not in the least the Object of Law, which is instituted solely to procure the greatest Security and Advantage to the People living under it.
- 43. That the Laws may be inviolably observed, they ought to be so salutary and so conducive to the Attainment of the greatest Good for the People, that every Person may be thoroughly persuaded it is his Interest to Endeavour to preserve them Inviolable.
- 44. And this which in the highest degree of Perfection ought to be endeavoured at as far as possible.
- 45. Mankind is influenced by many things: Religion, Climate, Laws, Fundamental Maxims of Government, Examples of Actions, Morals, and Customs.
- 46. From these Causes a general Way of thinking correspondent with them is produced among a People, e.g.
- 47. All Savage Nations are influenced almost solely by Nature and the Climate.
- 48. The Chinese are guided by Custom.
- 49. The Severity of Law tyrannizes in Japan.
- 50. At one period Morals formed the Conduct of the Lacedemonians.
- 51. Rome was influenced by Ancient Manners, and by Maxims which the ruling Powers laid down at the Foundation.
- 52. Virtues and Vices, good and bad Qualities compose the Characters of different Nations.
- 53. There is a happy Complexion of Character from which many and great Blessings low, though it is often impossible to understand that they are derived from that Cause.
- 54. To evince this I will here produce several Examples shewing its different Effects. The Spaniards were at all times famous for their Goodness of Heart: History informs us of their Fidelity in preserving their Trust often at the expense of their Life. This their ancient Fidelity remains with them to this day. All Nations trading to Cadiz entrust their Effects with the Spaniards, and have never yet repented of their Confidence: But this admirable Quality joined to their Idleness makes such a Mixture or Composition, as produces Effects detrimental to themselves: for the European Nations carry on before their Eyes all the Trade belonging to their own Monarchy.
- 55. The Character of the Chinese is of another Cast quite opposite to that of the Spaniards. Their insecure Life (arising from the Nature of the Climate and Soil) is the Cause that they are endowed with a Subdety almost inconceivable, and their desire of Gain is so Exorbitant that no trading Nation can confide in them: it is this notorious Infidelity which has preserved to them the Japan trade: for no European Merchant has ventured to engage in it under their Name, though it might easily be done through their Maritime Territories.
- 56. What I have here mentioned is not with a View of diminishing in the least the infinite distance between Virtue and Vice, God Forbid! My Intention was only to shew that all political Evils are not Moral Evils, nor all Moral Evils political. This must indispensably be known in order to avoid enacting Laws inconsistent with the Genius of the People.
- 57. Legislation must have regard to the Genius of the People. We always act best when we act willingly, freely, and according to our Natural Inclination.
- 58. Even to introduce better Laws it is previously requisite to prepare the Minds of the People for receiving them: but let not this serve as an objection against the most advantageous Establishment; for if the Minds of the People are not yet prepared, take upon yourselves the trouble to prepare them, and by that very Endeavour much will be effected.
- 59. Laws are peculiar and regular Establishments of the Legislator, but Manners and Customs are Establishments of all the People at large.
- 60. So that when it is necessary to work any important Change among a People for their own Good, what was instituted by Laws must be reformed by Laws, and what was introduced by Customs must be changed by Customs. Very bad therefore is that Policy which reforms by Laws what ought to be altered by Customs.
- 61. There are means to prevent Crimes from increasing, for which purpose Punishments are inflicted by Laws: There are also Means to introduce a Change of Customs, and to this End Example is most useful.
- 62. Besides in proportion as Nations have more Intercourse with each other, with the greater Facility do they Change their Customs.
- 63. In a word, All punishment not inflicted through absolute Necessity is tyrannical: for the Law does not arise from Power alone. Things indifferent neither Good nor Evil in their own Nature do not fall under the Cognizance of Law.
- 64. Of Laws in particular.
- 65. Laws beyond measure Mild give rise to excessive Evil.
- 66. Means are always found to evade those Laws which are carried to the contrary extreme. Moderation and not proceeding beyond due bounds best governs any People.
- 67. It is then Civil Liberty flourishes when the Laws deduce every Punishment from the peculiar Quality of every Crime. Whatsoever End is proposed in the Inflicting of Punishment should proceed from the Fact itself, and not from the Arbitrary pleasure of the Legislator. Man should not do Violence to Man, but his own proper Action.
- 68. Offences are divided into four kinds.
- 69. Of the first kind are those against Religion.
- 70. Of the second those against Morals.
- 71. Of the third those against the Peace.
- 72. And of the fourth kind are those which affect the Security of the Citizens.
- 73. Punishments inflicted for these Offences must be deduced from the particular Quality of each kind of Offence.
- 74. First. Among Offences against Religion I reckon no others than those which directly affect it, such are covert and open Acts of
Sacrilege: For as those which disturb the practice of Religion bear the Quality of Offences against the Peace of the State, they must be referred to that Class. In order therefore that the Punishment for Sacrilege be deduced from the Nature of the Fact, it should consist in a deprivation of all the advantages we derive from Religion, as Expulsion from the Church, Exclusion from the Assemblies of the Faithful, for a time or for ever, and a Removal from their Presence.
- 75. And Civil Punishments are also usually inflicted.
- 76. Second. In the second kind of Offences are comprehended those which pervert good Morals.
- 77. Such are corrupting the general Purity of Manners, or the Manners of any Individual in particular, that is All Actions contrary to those Institutions which point out how far every one may lawfully avail himself of the Exterior Advantages given Man by Nature to administer his Necessity, to his Convenience, and to his Satisfaction. The Punishment for these offences must likewise be derived from the Nature of the Crime. Privation of the Advantages publicly annexed to Purity of Manners, Amerciement, Shame or Disgrace, obliging such Offenders to conceal themselves from the Eyes of the People, public Infamy, Expulsion from the City and from Society, in a word, those kinds of Punishments appointed by the Court for the Reformation of Manners are sufficient to check the Immodesty of both Sexes: and in reality these Offences are not such much founded on a Wicked Heart as on Forgetfulness and undervaluing of themselves. Here are meant only Crimes relative to the Corruption of Manners, and not those which disturb the public Safety at the same time, as Ravishment, and Violation, for these are included in the fourth kind of Crimes.
- 78. Third, Offences of the Third Class are those against the public Peace. Punishment for these must be deduced from, and referred to that Peace: Such as Privation of it, Exile, Correction, and other Punishments proper to reclaim turbulent People and to bring them back into the Established Order. Crimes against the Peace I place among those Actions only which include in themselves a simple Violation of civil Institutions:
- 79. For those which violate the Peace and affect the Security of the Citizens at the same time, are referred to the fourth kind of Crimes. Fourth. The Punishments of these last mentioned Crimes are called Capital Punishments, which are a kind of Retaliation, whereby the Society deprives that Citizen of his Security, who has deprived or intends to deprive another of his: This Punishment is deduced from the Nature of the thing, is founded on Reason and drawn from the Sources of Good and Evil. A Citizen becomes worthy of Death when he has so far violated the Security of another as to have taken away or attempted to take away his Life. The Punishment of Death is a kind of Medicine for a Sick Community. If Security is endangered with respect to Property many Proofs must be brought to shew that in this Case the Punishment of Death should not be inflicted. A better, and much more natural Punishment of this Crime seems to be Deprivation of Property, and this would incontestably be so were Goods in common or equal among all: But as the Person who has no Possession is most likely to take away from others, it is necessary that instead of pecuniary corporal Punishment be inflicted as a Compensation. All I have here advanced is founded on the Nature of things and tends to the Protection of civil Liberty.
- 80. Of Punishments.
- 81. Love of the Native Country, Shame, and Fear of Reproach, are powerful Means to restrain many Crimes.
- 82. In a moderate Government the greatest Punishment for any bad Action will be to be convicted of that Action. There Evils will be corrected more easily by the civil Laws, nor will there be a necessity to make them very rigorous.
- 83. In these States they are more careful to prevent than to punish Offences, and indeed much greater pains should be taken to instill good Morals into the Minds of the Laws, than to deject their Spirit by Punishments.
- 84. In a word whatsoever in the Law is called Punishment, is actually nothing else than Pain and Misery.
- 85. Experience teacheth us, that in those Countries where mild punishments are in use, the Hearts of Citizens are as much affected by them as in other parts by rigorous punishments.
- 86. Suppose a sensible Injury done to the state by some irregularity; A Violent Government would suddenly remedy it, and instead of thinking about executing the ancient Laws, inflict a cruel Punishment which would stop the Evil at once: the Imagination of the People is
THE GRAND INSTRUCTIONS... [The Macartney-Dukes Text] 455 affected by this heavy Punishment just in the same degree as it would have been by a light one: so that the Terror of it is soon diminished and then it will be necessary at all Events to establish another.
- 87. Mankind must not be driven by extreme Methods, but the Means furnished us by Nature must be cautiously used in order to lead them to the end intended.
- 88. Enquire attentively into the fault of all Relaxations, you will find them to arise from the Impunity of those Offences, and not from the Mildness of the Punishments. Let us follow Nature who has given Man Shame instead of a Scourge, and let the greatest part of all Punishment be the Infamy included in the very suffering of Punishment.
- 89. If there are such Countries where Shame is not a Consequence of Punishment, the Cause of it is tyrannical Government which inflicts the same Punishments on the Virtuous and on the Vicious.
- 90. And if again there are other Countries where the People can only be restrained from Crimes by severe Punishments, know also that this flows from the Severity of the Government, which appoints these heavy Punishments for trivial Offences.
- 91. It often happens that a Legislator desirous to remedy an Evil thinks of nothing beyond the Cure, his Eyes are intent upon this Object only, and he considers not the inconvenience attending it. The Cure once performed, nothing is seen but the Severity of the Legislator: But the Evil arising from this Rigour remains among the People, their Minds are depraved, they are accustomed to Violence.
- 92. Accounts concerning the Education of the Japanese inform us that Children must be treated mildly, because their Hearts become hardened by Punishment: and also, that Slaves should not be used too severely, because it will soon put them upon having recourse to defence: Could not these People who discerned the Spirit proper to reign in the Domestic Government, by the same Reasoning discover also that Spirit which ought to animate all parts of political and civil Government?
- 93. Means may be found even there to reclaim wandering Minds into the right Path, by Maxims of Religion, Philosophy, and Morality selected and adapted to the Character of the People, by a just temperament of Punishments and Rewards, by an innocent application of the proper Rules of Honour, by Punishment consisting in Shame, by a constant enjoyment of Happiness and Ease: But should it be feared, that Minds long accustomed to Severity can be no otherways subdued than by Cruelty of Punishment, that they are not to be managed by gentler methods, In that Case (attend diligently to this Rule confirmed by Experience in instances where the Mind has been spoiled by too rigorous Punishments) it will be necessary to act in a secret and imperceptible manner, and in particular Cases where Mercy may be shewn which will often occur, there to inflict more moderate Punishments, until it succeeds so far that they may be moderated on all Occasions.
- 94. It is very impolitic to punish one who robs upon the Highway in the same manner as one who not only robs but Murders too. Every one clearly perceives that for the public Safety some difference should be made in their Punishments.
- 95. There is a State where Highwaymen do not commit Murder because those who only rob may hope to be transported: but Murderers can never expect this Indulgence.
- 96. Good Laws keep the exact Medium, they do not always punish by Amerciements, nor do they always inflict corporal Punishments. All Punishments which deform the human body ought to be altered.
- 97. Of the process of Justice in general.
- 98. The judicial Power consists solely in executing the Laws, and that for this reason, because there should be no doubt concerning the Liberty and Security of the Citizen.
- 99. Wherefore Peter the Great wisely established the Senate, Colleges and inferior Courts for the Administration of Justice in the Name of the Sovereign and according to the Laws, and hence it is that the Report of Affairs to the Sovereign himself is rendered so troublesome: An Institution which ought never to be broken.
- 100. Hence follows the Necessity of having Courts of Judicature.
- 101. These Courts make Decisions and pass Sentences which they must keep by them and attend to, in order to administer Justice today the same as Yesterday, and that the Life and Property of every Individual Citizen may by their Means be fixed and confirmed as securely as the Establishment of the Constitution itself.
- 102. In an absolute Government the Decisions made in the Administration of Justice, upon which not only Life and Property but
Honour depends, should undergo the most diligent and scrupulous Examination.
- 103. The greater the Power vested in the Judge and the more consequential the Affair on which he is to decide, the more he should enter into its delicacies and Intricacies: So that it is no wonder that in the Laws of such States are found such varieties of Rules, Limitations and Extensions, by which particular Cases are multiplied insomuch that they seem to make an Art of Reason itself.
- 104. The Diversity of Rank, Family, and Condition established in a Monarchical Government, frequently gives rise to many distinctions in the Nature of Property, And Laws established upon the Constitution of this State increase still further the Number of these Distinctions.
- 105. Hence Property is divided into personal, acquired, dotal, Paternal, Maternal, Chattels &c &c.
- 106. Each particular kind of Property is under peculiar Regulations, which must be attended to in all proceedings upon it, whereby the Simplicity of the Object is again subdivided into other particulars.
- 107. In proportion as the judgements of Courts of Judicature are multiplied in Monarchical Governments, Jurisprudence becomes over loaded with precedents, which sometimes contradict one another either because the Judges who succeed each other think differently, or the same Causes are sometimes well sometimes badly argued, or in short, by reason of the infinite Number of abuses which gradually insinuate themselves into whatsoever passes thro’ the hands of Man.
- 108. This is an unavoidable Evil which the Legislature corrects from time to time, as contrary to the very Spirit of a moderate Government.
- 109. For when any one is necessitated to have recourse to Courts of Judicature, that Necessity ought to arise from the Nature of the Constitution, and not from the Contradiction and Uncertainty of the Laws.
- 110. In all Governments where there are distinctions of Persons, there are necessarily Privileges confirmed to them by the Constitution. One of the principal whereof and which least of all affects the Public, is the Privilege of being tried in one Court preferable to another: Here again arise new difficulties, to know in what Courts the several Orders of Persons are to be tried.
- 111. It is often said that ‘Justice should be administered in all Countries as it is in Turkey”: As if no Nation under the Sun, could obtain so clear an Idea of an Art the most necessary in the World for Mankind to know, but a People plunged into the deepest Ignorance.
- 112. If you consider the formalities of Justice, with respect to the trouble a Citizen meets with in order to recover his Property, or to obtain Satisfaction for Injury done him, doubtless you will find many difficulties; but if you consider these formalities, with respect to the Liberty and Security of the Citizen, in this view you will see that the Trouble, Expense, Delay and even the very Risks of the Law, are nothing else than the price every Citizen pays for his Liberty.
- 113. In the turkish Dominions, where little regard is paid to the Life, the Honour, and the Property of the Subject, all disputes are quickly determined; the manner of finishing them is indifferent, provided they are but finished one way or other; The Bashaw all at once enlightened, orders the contending Parties to be bastinaded according to his Caprice, and so dismisses them.
- 114. But in Governments where regard is paid to Moderation, the Life, Property or Honour of the meanest Citizen is deemed of Importance: No one is deprived of Honour or Property, till after a long and strict Examination into the Truth: No one is deprived of Life, but when the public itself demands it. Nor does the public ever demand the Life of a Citizen without first granting him all possible Means of defending it.
- 115. The formalities of Law increase every where in proportion to the Importance, of which the Honour, Property, Life and Liberty of the Citizen is considered.
- 116. It is necessary the Defendant should be heard, not only for obtaining Information in the Affair, but also that he may make his defence, which he must do either in his own Person, or by a Proxy of his own choice.
- 117. There are People who think that the youngest Member in every department for Example of the rank of an Ensign might ex officio plead for the Defendant: From hence another Advantage would arise, namely that Judges would thereby become much more expert in their Business.
- 118. To defend here signifies no more than to lay before the Court, every Circumstance in behalf of the defendant which may tend to justify him.
- 119. Laws which condemn a Person upon the disposition of a single Witness, are dangerous to Liberty. Under the Heirs of Constantine I,
THE GRAND INSTRUCTIONS... [The Macartney-Dukes Text] 459 a Law was published whereby the Evidence of a Man in considerable Office was accepted as sufficient Proof, and no more was required. Justice must have been administered according to the Will of this Legislator very speedily, but at the same time, very strangely: They judged of Actions by Persons, and of Persons by their Offices.
- 120. Agreeable to sound Reason, two Witnesses are requisite: One Witness affirming, and the Defendant denying a Fact form two equal parts; therefore there must be a third, in order to cast the Defendant; unless independent of this there are other incontestable Proofs, or both Parties refer to one common Witness.
- 121. The depositions of two Witnesses, are esteemed sufficient for inflicting Punishment on all Crimes. The Law believes them as much as if they spoke by the Lips of Truth herself. The following Chapter will shew this more largely.
- 122. And in this manner it is they judge in almost all States, that a Child begot in Wedlock is born legitimate: The Law herein puts a Confidence in the Mother; which is mentioned in this place, on Account of the Obscurity of the Laws upon this head.
- 123. The Torture is contrary to sound Judgement, and common Sense. Humanity itself cries out against it, and demands it to be utterly abolished. At this day, we see a People famous for their civil Institutions, who entirely reject it, without finding any bad consequence therefrom; which shews that it is not necessary in its own Nature. We shall enlarge more upon this Matter in the Sequel.
- 124. There are Laws which prohibit the use of the Torture, except in Cases where the Defendant will neither plead Guilty, nor not Guilty.
- 125. It is only destroying the force of an Oath, in making it too common by frequent use. There ceremony of kissing the cross should be used only in Cases wherein the Person who swears has no self Interest, such as the Judges and Witnesses.
- 126. In Trials for Capital Crimes, the Criminals should have the Choice of their own Judges, or at least should be allowed to object to such a Number, that those which remain may appear to be of their own choosing.
- 127. Some of the Judges should be also of the same rank of Life as the Defendant, that is, should be his Peers, or equals, that he may not think himself fallen into the hands of Persons, capable of using Violence to oppress him in his Cause.
Some Examples of this, there are even now in the Military Law.
- 128. When the Prisoner is condemned, it is not the Judge, but the Law, which inflicts the Punishment.
- 129. Sentences should be as clear and strong as possible, even to contain the exact words of the Law, for if the private Opinions of the Judges be mixed with them, the People in such a Government must live in a Community without knowing their mutual Obligations to each other.
- 130. There are many different ways of passing Judgement. In some Countries, the Judges are shut up without Victuals or Drink till they unanimously agree upon their Verdict.
- 131. In some Monarchical Governments, they proceed in the way of Arbitration or Judgement of three: they deliberate together, they mutually communicate their Opinions, they reconcile them, they modify their Sentiments in order to make them conform to each other, and try by all possible means to make their Judgement agree.
- 132. The Romans never decided in any suit, unless the matter was fairly stated without Addition, or Diminution, and without any Modification.
- 133. However, the Praetors or chief Magistrates of Cities contrived other forms of trial, which they called ex bona fide, where the Decisions were made after a strict Examination, according to the Conscience of the Judge.
- 134. A Plaintiff who claims more than is just, is non suited. The Defendant should also be fined, if he does not acknowledge exactly what is just, that Good Faith may thus be preserved on both sides.
- 135. If those whose Duty is to fulfill the Laws, should have power to keep a Citizen under Arrest, who is capable of giving Bail, Liberty in that place would not exist at all; Unless he be arrested to answer immediately to an Accusation of some Crime which lawfully merits capital Punishment: In this Case the Person arrested is actually free, for he is subject to nothing but the Power of the Law.
- 136. But if the Legislative Power thinks itself in danger from secret conspiracy against the State, or the Sovereign, or from Collusion with Foreigners, in such Case, it may authorize the executive power to arrest persons upon Suspicion for a time, who only suffer a temporal Loss of their Liberty, in order to preserve it uninjured for ever.
- 137. But it would be best to point out exactly in the Laws, such Cases as are not bailable; for People who cannot give Bail in all places lose their Freedom so long as the public, or private Safety demands it. This Matter is treated more at large in the 10th Chapter.
- 138. Though all Crimes are Offences against the public, yet those which immediately concern one Citizen with another, must be distinguished from those which immediately affect the State, on Account of the Connexion between the Citizen and the State. The first are called private, and the second public Crimes.
- 139. In certain States, the King being placed upon the Throne to see that the Laws are executed in all parts of his Dominions, appoints some Person of distinction in every Tribunal, to prosecute all Crimes in the King’s name. In these Countries, the Office of Informer is unknown. And if this Avenger of the Public is suspected of abusing his Office, he is obliged even to declare the Name of his own Accuser. This Office established in a State, watches over the Welfare of the Citizens, it transacts their Business while they are at ease. With us, Peter the Great ordered the Procurator to examine into and manage the Affairs of Non-Attendants; and if to this were added still another Office or Person invested with the above Charge, Informers would be less known among us.
- 140. Very blamable was that Roman Law which permitted Judges to accept presents provided they did not exceed annually one hundred Dollars. Those to whom nothing is given, desire nothing, but those to whom something is given, presently desire a little more, and afterwards a great deal more. Besides it is much easier to convince him, who being obliged to take nothing yet receives something, than him, who takes more than he has a right to, and who will be ever contriving Pretences, Excuses, Reason, and Remonstrances, weighty enough to defend his Extortion.
- 141. Among the Roman Laws is one which prohibits the Confiscation of Goods to the Sovereign, except in Cases of high Treason; and that in the extreme degree of the Crime. It would often be agreeable to Prudence to imitate the Tenor of this Law, and to determine, that only for certain Crimes, the Criminal’s Effects should be confiscated to the Sovereign. And also, that no Effects but acquired, should be so confiscated.
Chapter 10 th
- 142. Of the Form of Criminal Jurisdiction.
- 143. We do not intend here to enter into an Extensive Examination of Crimes, and a minute division of them into particular kinds, and what punishment is proportional to each. We have divided them above into four Classes: Otherwise the vast Number and Variety of these Objects, as also the various Circumstances of Time and Place, would lead Us into endless particulars. It will suffice here to shew First: The principal general Rules, & Secondly: The most pernicious Errors.
- 144. Question 1. Whence do Punishments take their Rise? And upon what is the Right of punishing People founded?
- 145. Laws may be called the Means whereby People unite, and preserve themselves in a Body; and without which there would be no such Union.
- 146. But to establish those Means, which became a Deposit, was not above sufficient; It was necessary also to provide for its Preservation; and for this reason, Punishments were appointed against Offenders.
- 147. All Punishment therefore becomes unjust, the moment it ceases to be necessary for preserving this Deposit in safety.
- 148. The first consequence of these leading Principles is this. That it pertains only to the Laws to assign the Punishments for Crimes, and that only one Lawgiver, as representing in his own Person the whole united Community, and holding all Power in his own hands, has the Right of making Laws concerning Punishments. And hence again it follows, that the Judge and Magistrate, being themselves but a part only of the Community, cannot injustice, or under pretence of the public Good, inflict upon any Member of the Community whatever, any other Punishments than precisely those which are settled by the Laws.
- 149. The second Consequence is, that the Sovereign, who represents and holds in his own hands all Power for the defence of the whole Community, can alone punish a general law concerning Punishments, to which all the Members of the Community are subjected: but as abovementioned in Article 99, he must refrain from giving Judgement himself, and therefore must appoint other Persons, to judge according to the Laws.
- 150. A Third Consequence is, That even if the Cruelty of Punishment had not already been abolished by the Virtues which commiserate Humanity, Its very Inutility would be a sufficient Cause to extirpate it: And this serves to shew that it is unjust.
- 151. The fourth Consequence is, That the Judge who tries Crimes, cannot have the Right of explaining the Laws regarding Punishments, for this very Reason because he is not a Legislator. Who then shall be the Interpreter of those Laws? I answer the Sovereign, and not the Judge; for the sole Duty of a Judge is to examine whether such and such a Person has, or has not done an Action contrary to the Law.
- 152. The Judge in trying any Crime whatsoever, should make only one Syllogism or Argument, of which the first Proposition or major, is the general Law, the second Proposition or Minor, declares the Action in question, to be either conformable, or contrary to the Law, And the Conclusion contains the Acquittal or Conviction of the Culprit. If a Judge of his own Accord, or urged by the Obscurity of the Laws, makes more than one Syllogism in a Criminal Cause, then all will be Uncertainty and Obscurity.
- 153. Nothing is more dangerous than this Common Saying: “The meaning or Sense and not the words of the Law should be considered”. This signifies nothing more, than to break down the Fence which opposes the rapid Course of popular Opinions. This is a most invincible Truth, however strange it may appear to the Mind of People more strongly affected by a trivial present Inconvenience, than by remote Consequences infinitely more destructive, and which are the neverfailing Attendants of one false Principle adopted by a People. Every Man has a peculiar turn of thinking different from others upon all Subjects which fall under his Consideration. We should soon see the Fate of the Citizen constantly varying by the removal of his Cause from Court to Court, and his Life and Liberty depending upon Chance, from the false Reasoning or bad Disposition of his Judge. And we should see the same Crimes differently punished at different times, by the very same Courts of Judicature. Should Men once begin to disobey the invariable Voice of the Laws, and harken to the precarious Inconstancy of Arbitrary Explanations.
- 154. These Irregularities cannot be compared to those small Errors, which may arise from a very strict, and literal interpretation of the Laws regarding Punishments. These transient Evils sometimes oblige the Legislator to make some slight, and necessary Corrections in ambiguous words: but at all Events there is even then a Check upon the Rashness of Explaining and debating upon the Laws, a License which may become destructive to every Citizen.
- 155. If the Terms of the Law are not fixed and precise, and cannot be literally understood, If to examine and decide what Action is contrary to, or agreeable with the Laws prescribed, be not the only duty of the Judge, If the Rule of Right and Wrong which should direct equally the Actions of the Ignorant, and of the Man enlightened with Learning be not for the Judge in the Case before him, a simple Question of fact, then the Condition of the Citizen will be exposed to strange Events.
- 156. When the Laws regarding Punishments are always literally understood, every one may justly calculate and know with Certainty the Inconveniences of a bad Action, which is abundantly useful to deter Men from committing it, and the People will enjoy Security both as to their Persons and effects as they ought, because this is the Intention and End proposed, without which Society would be dissolved.
- 157. If the Right of explaining the Laws be an Evil, so also is their Obscurity which renders this Explanation needful. And this Confusion is still greater, when they are wrote in a Language or Expressions not understood by the People.
- 158. The Laws should be written in a plain and easy Language, And the Code containing all the Laws, should be a Book in every common use, and to be purchased at as small a price as an Alphabet; Otherwise the Citizen, being himself unacquainted with the Consequences of his own Actions (Consequences relative to his Person and Liberty), depends upon a certain Number of People, who shall have arrogated to themselves the Preservation and Interpretation of the Laws. The greater the Number of People who read and understand the Code, the less frequent will Offences be. And therefore it is necessary to Order, that in all Schools, Children be taught to read alternately Ecclesiastical Books and those containing the Laws.
- 159. Question 2. What are the most proper measures to be taken, when it is necessary to put a Citizen under Arrest? And also to detect and convict a Criminal?
- 160. It would be an Offence against the personal Security of every Citizen, to permit the Magistrate whose Duty it is to execute the Laws, and has Authority to imprison a Citizen, to deprive one Man of his Liberty under a trivial pretence, and leave another free, notwithstanding the most flagrant marks of Guilt.
- 161. To be taken into Custody is itself a Punishment, differing from all others in this, that it indispensably precedes the judicial Hearing of a Crime.
- 162. But this Punishment cannot be inflicted, except in Cases where it is probable the Citizen has been guilty of a Crime.
- 163. Wherefore the Law should exacdy point out those Indications of Guilt by which the Accused Person may be arrested, and which may subject him to this Punishment, and to Verbal Examination, which is also a kind of Punishment. For Example:
- 164. The public Voice accusing him, his Flight, his Confession out of Court, the Evidence of his Accomplices in that Crime, the Threats and known Enmity between the Accuser and Accused, the being taken in the Fact, and other similar Marks may give sufficient Cause to take a Citizen under Arrest.
- 165. But these Proofs must be determined by the Laws, and not by the Judges whose Decisions are always repugnant to civil Liberty, if they be not deduced in every particular Case from the general Maxims contained in the Code.
- 166. When Prisons shall become less horrible, that is to say, when Compassion and Humanity shall descend into the very Dungeons, and enter into the Hearts of the Ministers of Vengeance, then may the Laws content themselves with Indications alone to determine the taking any one under Arrest.
- 167. There is a difference between keeping in Custody and confining in Prison.
- 168. To take a Man who is accused into Custody, is nothing else than to secure his Person until it is known whether he is guilty or not, so that this Restraint should last as short time as possible, and be as gentle as possible: The duration of it shall be determined by the Time requisite to prepare his Cause for Trial. And its Severity should be no farther extended than is necessary to prevent the Escape of the Accused, or for the discovery of the Proofs of the Crime. The Cause should be decided as quickly as possible.
- 169. A person having been arrested and acquitted, must not therefore be liable to any Disgrace. Among the Romans how many Citizens do we see, who have been judicially tried or the most atrocious Crimes, and after proof of their Innocence, have been respected and promoted to the highest Offices of the State?
- 170. Imprisonment is a Consequence of the Judge’s Sentence, and serves in lieu of Punishment.
- 171. A Person taken up on Suspicion, another upon Matter of Fact, and a third convicted, ought not to be confined in the same Place.
For the first is only taken under Arrest, but the other two are imprisoned: Now that Imprisonment is only part of the Punishment of one of them, but the whole Punishment of the others.
- 172. Being arrested ought not to be looked upon as a Punishment, but rather as the means of preserving the Person of the accused in safety, which assure him at the same time of his Liberty, provided he is Innocent.
- 173. To be taken under arrest among the Military is reckoned no Disgrace. In the same view should Citizens look upon it in civil Life.
- 174. When a Person accused is found Guilty, the Arrest is changed into Imprisonment, so that there must be separate places for all three.
- 175. The following general Theorem will serve to ascertain the Truth of the Commission of any Crime, e.g.: When the Proofs of a Fact depend one upon another, that is to say, when the Indications which prove it, can be confirmed only one by the other. When the Truth of many Proofs depends upon the Truth of one Proof only, the Number of Proofs neither increases nor diminishes the Probability of the Fact; because then, the force of all the Proofs is included in the Force of that one Proof upon which all the rest depend, And that one being refuted, all the rest fall of Course. But if the Proofs are independent of each other, and the Truth of every respective Proof be confirmed, then the Probability of the Fact increases in proportion to the Number of Indications; because the falsity of one Proof does not imply the falsity of another. Perhaps it may seem strange that I use the word Probability, in speaking of Crimes which ought to be known beyond all doubt in order to inflict Punishment. But here it must be observed, that a moral Certainty is a Probability; which is called Certainty, because every reasonable Man is obliged to admit it as such.
- 176. Proofs of a Crime may be divided into two sorts, perfect and imperfect. Those I call perfect, which exclude all possibility of shewing the Innocence of the Person accused; and imperfect, those which exclude not this Possibility. One perfect proof is sufficient to demonstrate that the Sentence passed on the Delinquent is just.
- 177. As to imperfect Proofs, their Number must be very great to form a perfect one; that is, all these Proofs collectively must exclude a possibility of shewing the Innocence of the Person accused, though each Proof separately may not make that Exclusion. To this we may add, that imperfect Proofs, to which the Delinquent answers nothing sufficient for his Justification, though even his Innocence might furnish
THE GRAND INSTRUCTIONS... [The Macartney-Dukes Text] 467 him with means for an Answer, are in such Case deemed as perfect Proofs.
- 178. Where the Laws are exact, and precise, there the Judge has not more to do, than clearly to state the Fact.
- 179. In examining the Proofs of Crimes, it is needful to have Penetration and Address; To express the Result of this Examination, it is necessary to have Exactness and Clearness of Ideas; but to judge from this Result, requires nothing more than plain good Sense, which will be a more faithful Guide, than all the Skill of a Judge who has been always habituated to detect the Guilty.
- 180. And therefore that Law is exceedingly useful to the Community where it is established, which orders every Man to be tried by his Peers, or equals; for when the Fate of a Citizen is in question, every Sentiment created in us by the difference of Rank, Fortune, and Distinction, should be suppressed, and should be unknown between the Judge and the Prisoner.
- 181. But when the Crime is an Offence against a third Person, then one half of the Judges should be taken from the Peers of the accused, and the other half from those of the Person injured.
- 182. It is moreover reasonable that the accused be allowed to object to a certain Number of his Judges of whom he may have any Suspicion. Where the Accused enjoys this Right, the Guilty Person will appear to condemn himself.
- 183. The Sentences of the Judges ought to be public, as likewise the proofs of the Crime; that every Citizen may say he lives under the Protection of the Laws: A Sentiment which will Animate the Citizens, and be above all things useful and advantageous to an absolute Government which considers its true Interest aright.
- 184. One very important Thing in all Legislation, is to determine exactly the Principles upon which depend the Credibility of Witnesses and the Validity of Proofs in every Crime.
- 185. Every Man of sound Reason, that is every Man whose Ideas are justly connected, and whose Sensations correspond with the Sensations of his fellow Creatures, is capable of being a Witness. But the Faith which is due to him should be ascertained by the Interest he may have to speak the Truth or not; for on all Occasions Witnesses must be credited, when they have no Motive to bear false Witness.
- 186. Among the abuses of Words, which have crept into, and established themselves in human Affairs, It is well worth considering the motive which induced Legislation to annul the Evidence of a
Guilty Man on whom Sentence has already past. Such a Man, say the Sages of the Law, is dead in a civil Sense, and a dead Man is incapable of producing any Act. Provided only the Evidence of such a Person retards not the Course of Justice, Why not grant (even after Condemnation) to the Interest of Truth, and to his terrible Situation yet a little more time, that he may be able either to justify himself, or others accused, if he can but produce new Proofs, which shall be weighty enough to change the Nature of the Fact.
- 187. Forms are necessary for the Administration of Justice, but should never be so established by Law, as to become at any time destructive to Innocence; otherwise they will be attended with great Inconveniences.
- 188. And therefore any one may be admitted as a Witness, who has no Interest to give false Evidence. Hence the Credit which must be given to the Witness will be greater or less, in proportion to his Friendship with, or Enmity to the Person accused; as also according to other Connections or Dissensions subsisting between them.
- 189. One Witness is not sufficient for this Reason, because when the accused Person denies what the Witness affirms, nothing certain can be determined; and the general Right of being thought dishonest, will on this particular Occasion incline to the side of the accused.
- 190. The Credibility of a Witness is diminished in proportion as the Crime is more heinous, and the Circumstances less probable. This Rule may be applied to Accusations of Witchcraft, or to Instances of Cruelty without any Motive for it.
- 191. Whoso is obstinate, and will not Answer the Questions put to him by the Court, deserves punishment; which Punishment must be determined by Law, and be the heaviest among those inflicted; that thereby the Guilty may not escape being exposed to the Public, to which they are to serve as Examples. This particular punishment is needless, when there is no doubt, that the Person impeached has Committed the Crime he stands charged with, for his own pleadings are immaterial when there is other incontestable Evidence to prove him Guilty. This last Case is very extraordinary, for Experience shews us, that for the most part, in Criminal Cases, the Guilty do not confess their Crimes.
- 192. Question 3. Is the Torture destruction of Justice and does it produce the End for which it was intended by the Laws?
- 193. The Torture is a Cruelty confirmed by the use of many Nations, practised upon the Prisoner during the time of the preparation
THE GRAND INSTRUCTIONS... [The Macartney-Dukes Text] 469 for his Trial, either to extort form him his own Confession of the Crime, or to make him clear up the Contradictions with which he entangled himself in his Examination, or to declare his Abettors or in fine to discover other Crimes whereof he may be guilty though he be not accused of them.
- 194. 1st. A Person cannot be deemed Guilty before judicial Condemnation; and the Laws cannot refuse him their protection before it be demonstrated that he has violated them; So that what Right can give anyone Authority to inflict Punishment upon a Citizen at a time when it is yet doubtful whether he be innocent or Guilty? It is no difficult matter by deductions to come to this Reasoning. Either the Crime is proved, or it is not proved; if it be proved, then the Criminal should only be punished as the Law directs; Here then the Torture is unnecessary. If the Crime be not proved, the accused Person still should not be tortured, because an Innocent Person ought not to be tortured, and according to these Laws, that Person is Innocent, whose Crime is not proved. Doubdess it is necessary, that no Crime once proved should go unpunished. A Delinquent suffering the Torture has not Power over himself to speak Truth, can a Person raving in a fever be more believed than when he is in his sound Senses and perfect Health? His pain may be increased to so exquisite a degree, that having seized the whole Soul, it leaves it not at Liberty to exert its faculties, except what at that very instant he conceives may release him from that Pain, which is, to cry out Guilty provided they cease to torment him. And the same means made use of to distinguish the Innocent from the Guilty destroys all disparity between them. At the same time Judges will be as uncertain whether they have a Guilty or Innocent Person before them, as they were at the beginning of this horrible Inquisition. Hence the Torture is a probable Means to condemn the Innocent whose Constitution is weak, and to acquit the Guilty who confides in his bodily Strength.
- 195. 2nd. The Torture is inflicted to make the accused Person clear up (as they say) the Contradictions, wherewith he had entangled himself at his Examination; As though the fear of Punishment, Uncertainty and Anxiety of Mind, as well as Ignorance itself, disadvantages common both to the Innocent and Guilty, might not as well lead the timid Innocent Person into Contradictions, as the Criminal who endeavours to conceal his Guilt; As though Contradictions, so incident to human Nature, even in the most tranquil State of the Mind, might not be encreased while the Spirit is alarmed, and wholly buried in the Thought of escaping the Impending Dangers.
- 196. [3rd]. To put a Man to Torture in order to discover whether he has been guilty of other Crimes than that which has been proved against him, is a probable Method for all Offences to go without their due Punishments, because the Judges will be always desirous of discovering new Ones. Moreover, this Conduct is founded upon the following logic: You are guilty of one Crime, perhaps therefore you have committed a hundred more Offences: According to Law, you shall be racked and tortured, not only because you are guilty, but because perhaps you may be still more guilty.
- 197. [4th]. Besides this, the Accused Person is tortured to make him declare his Accomplices. Now as we have already demonstrated that the Torture cannot be a means to find out the Truth, how can it contribute to find out the Accomplices of a Crime? Doubtless one who accuses himself will very easily accuse others. Farther, is it just to punish one Man for the Offence of others? Could not the Accomplices be discovered by examining the Evidence produced against the Criminal, by strict search into the Proofs brought against him, and into the very Circumstances of the Fact, and in short, by all those Means which served to convict the Delinquent of that Crime for which he is condemned?
- 198. Question 4. Should Punishments be proportional to Crimes? and by what means can a just Standard of this Proportion be fixed?
- 199. In Capital Crimes, it is necessary the Law should limit the Time for collecting the Proofs and all things needful to the Affair in question; in order that the Guilty may not prolong the time of the Punishment they deserve by pretended Changes in their Case, and by rendering it perplexed. When all the Proofs are collected, and the Certainty of the fact becomes known, Time and Means should be allowed the Criminal for making a Defence, if he is able. But this Time should be very short, so as not to retard the Punishment, because the speedy Execution of Punishment is reckoned among the most powerful Means for restraining People from Crimes.
- 200. In order that Punishment may not appear to be the Violence of one, or many rising up against a Citizen, it ought to be public; conveniendy speedy, useful to Society, as moderate as the Circumstances will allow, proportional to the Crime, and exactly such as is laid down in the Laws.
- 201. Although Laws cannot indeed punish Intentions, yet it doth not thence follow, that an Action which indicates the Will, and is an Attempt to commit a Crime, deserves no Punishment, though a lighter than that inflicted upon the actual perpetration of it. Punishment is requisite, because even the very first attempts of Crimes should be prevented. But since the Attempt and the Perpetration of an illegal Action, there may be some Interval of Time, it will not be amiss to allot the greater Punishment for the Crime already completed, thereby to create in him who has entered upon a Crime, a Motive which may prevent his persisting to perpetrate it.
- 202. Nor should Accomplices who are not immediately concerned in the perpetration of Crimes, be punished so severely as the principals themselves. When several People agree to run a common Risk, the greater that Risk the more they endeavour to make it equal among them all. The Laws which punish the Perpetrator of a Crime with greater Rigour than the simple Accomplice, render it impracticable to divide that Risk equally, and cause the Difficulty greater of finding a Person who would choose to take upon himself to perpetrate a premeditated Crime, seeing the Risk he will run will be greater inasmuch as the Punishment to be inflicted will be unequal to that of his Accomplices. There is but one Case in which an Exception can be made to this general Rule, and that is, when the Perpetrator receives an extraordinary Advantage. In this Case, as the difference of the Risk is compensated for by a difference in the advantages, an equal Punishment must be inflicted upon them all. This Reasoning may appear very subtle, but it ought to be considered that it is highly necessary that the Laws should preclude every possible means for Accomplices to agree one among another.
- 203. In some Governments, an Accomplice in a Capital Crime who impeaches his Companions, obtains his pardon. This practice has its Conveniences, but likewise its Inconveniences when it is used only in particular Cases. A Constant general Law, promising pardon to any Accomplice who discovers a Crime, should be preferred to a temporary particular Information in a particular Case: for such a Law would prevent the Union of Malefactors, laying them always under the general apprehension, that one among them will betray the rest. But then this Promise should afterwards be kept sacred, and a Guard be given as it were, to protect the Person who shall have recourse to this Law.
- 204. [Question 5]. By what is the greatness of Crimes measured?
- 205. The Intention of establishing Punishments is not to torment a Creature endowed with Sense, but the end for which they are appointed is to deter the Criminal from injuring the public in future, and to prevent his fellow Citizens from committing like Offences. Such Punishments therefore should be inflicted as being adequate to the Crime, may stamp upon the Heart of the People a lasting and lively Impression, and at the same time, may be the least cruel possible to the Person of the Offender.
- 206. Who is not struck with Astonishment when he sees in History, what Number of barbarous and useless Torments have been invented and practiced without the least Remorse of Conscience, by People who assumed the Appellation of Wise? What feeling Heart doth not shudder at the thought of those thousands of unhappy Wretches who have suffered them, frequently accused of Crimes difficult or impossible to be effected, often times complicated with Ignorance and sometimes with Superstition? Who, I say, can behold the Laceration of these People, tormented with horrid Ceremonies, even by their fellow Creatures? The Places and Times, in which the most cruel Punishments have been in use, are those in which the most inhuman Crimes have been committed.
- 207. In Order that Punishment may produce the desired Effect, it is enough that the Evil it causes exceeds the Good expected from the Crime, taking into the Computation (which shows that Excess of Evil above the Good) the inevitable Certainty of Punishment, as also the Loss of Advantages proposed from the Crime. All Severity exceeding these Bounds is useless and consequently tyrannical.
- 208. Wherever there have been rigorous Laws, either they have been changed, or the Impunity of the Guilty has arisen from the very severity of the Laws. The weight of Punishment must be referred to the present Condition and Circumstances of a People. In proportion as the Minds of those who live in Society become enlightened, the Sensibility of every Individual Citizen is increased. And when Sensibility grows among the Citizens, then must the Rigour of Punishment be diminished.
- 209. Question 6. Is the Punishment of Death useful and necessary in Society for the Preservation of good Order, and personal Security?
- 210. Experience shews that the frequent use of severe Punishments has never rendered a People better. If then I can demonstrate, that in the ordinary State of Society, the Death of a Citizen is neither useful nor necessary, I shall overcome the persecutors of Humanity. I say here, in the ordinary State of Society, for the death of a Citizen can be requisite only in one Case, which is, when being deprived of Liberty, he still has Means and force capable of disturbing the public Tranquillity. This Case can no where take place, but when the People either lose, or recover their Liberty, or in time of Anarchy, when Disorder itself assumes the place of Law. But during a peaceful Sovereignty of the Laws and under a form of Government established by the united Wishes of the People, in a State protected against Enemies from without, and upheld within by powerful Supporters, that is, by its own Strength and the Opinion rooted in the Minds of the People, where the whole Power is in the hands of the Sovereign, in such a State, there can be no manner of Necessity to take away the Life of a Citizen. Twenty Years Reign of the Empress Eliz. Petrovna present the Fathers of the People with an Example for Imitation more Illustrious than the brightest Conquests.
- 211. It is not excessive Rigour and destruction of the human Species that produces a great Effect upon the Heart, but the incessant duration of Punishment.
- 212. The Death of a Criminal is a weaker Means to restrain Crimes, than the long and constantly lasting Example of a Man deprived of his Liberty, in order, by hard Labour during the whole duration of his Life, to make amends for the Injury he has done to the Public. The Terror caused by the Idea of Death may be very strong, but it cannot stand against the Forgetfulness natural to Man. It is a general Rule: That sudden and violent Impressions stamped upon the human Mind alarm and strike the Heart, but their Effects remain not long in the Memory. In order that Punishment may be agreeable to Justice, it should have no greater degree of Intenseness that only what may be sufficient to deter People from the Commission of Crimes. So that I boldly affirm, there is not that Man living who after the least Reflection, can put in Comparison on one hand the Crime, what advantages soever it may promise, and on the other, The utter deprivation of Liberty which ends only with Life.
- 213. Question 7. What Punishments should be inflicted for different Crimes?
- 214. He who disturbs the public peace, he who disobeys the Laws, he who loosens those Bonds by which Men are united in Society, and mutually protect each other, should be excluded from the Society, that is should be banished.
- 215. The Reasons should be stronger for banishing a Native than a Stranger.
- 216. The Punishment of Infamy is a mark of the public bad Opinion of the Person upon whom it is inflicted, which deprives him of that Respect and Confidence which the Public formerly shewed him, and makes him forfeit that Fraternity which subsists among the Members of the same State. The Infamy inflicted by Law should be such as arises from the universal Principles of Morality: For should those Actions which Moralists term Indifferent, be deemed infamous by Law, this Inconsistency would follow. That Actions which for the Good of the public ought to be esteemed infamous, would soon cease to be looked upon as such.
- 217. Great Care should be taken not to inflict painful and corporal Punishments on Fanatics, and Persons pretending to be inspired. This Evil founded upon Pride and Presumption is nourished by, and affects a Glory even in Suffering; Of which Examples have been seen in the late secret Chancery, where such People came frequently on particular days solely to suffer Punishment.
- 218. Infamy and Ridicule are the only Punishments which ought to be used against such Fanatics and pretenders to Inspiration: for these may suppress their Pride, And thus by opposing Force to Force of the same kind, the Admiration of false Doctrine which may harbour in weak Minds, is dispersed by the Wisdom of the Legislature.
- 219. Infamy ought not to fall upon Numbers at once.
- 220. Punishment should be provided adequate to Crimes, and made known to the Public.
- 221. The less the disproportion between the Crime and the Punishment, and the greater the Expedition with which it follows, the more useful, and the more just will the Punishment be: more just, because it will free the Criminal from the tormenting Anxiety of Mind about the uncertainty of his Punishment. The judicial termination of an Affair should be made as soon as possible. I have said the Expedition with which Punishment is inflicted is useful; because the lesser the Interval between the Crime and the Punishment, the more will the Crime be esteemed a Cause of the Punishment, and the Punishment, an Effect of the Crime. Punishment should be immutable and inevitable.
- 222. It is not the Rigour of Punishments, which is the surest Curb to Crimes; but the certainty that an Offender will infallibly be punished.
- 223. The Certainty of a small, but unavoidable Punishment, makes more Impression upon the Mind, than the Terror of Capital Punishment, joined with the Hope of escaping it. In proportion as Punishments become more mild and moderate, the less Occasion will there be for Mercy and Forgiveness; for then the Laws themselves are filled with the Spirit of Mercy.
- 224. In any State however extensive there should be no place independent of the Laws.
- 225. In general, Endeavours should be applied for the Extirpation of Crimes, and more especially those which are most hurtful to the People; so that the means employed by the Laws to deter People from committing them, should be more and more severe (respect being had to the kind of Crime) in Proportion as they are more injurious to the public Good, and in proportion to the force of the Motives which may excite wicked or weak Minds to perpetrate them. Therefore, there must be a Proportion between the Crime and the Punishment.
- 226. If two Crimes which unequally injure the Public be punished equally, this Inequality in the Punishment will produce the following Inconsistency, little remarked by any one, though it frequently occurs, That the Laws will be obliged to punish Crimes which they themselves have produced.
- 227. If the same Punishment be inflicted upon one who kills a Beast, as one who kills a Man, or forges any Writing of Importance, People will soon make no distinction between the Crimes.
- 228. The Necessity and Advantage of Uniting People in Society being presupposed, Crimes (beginning from great to small) may be placed in progression, in which the most Atrocious Crime will be that which tends evidently to disjoin, and in Consequence to the immediate destruction of that Society: and the least Crime will be the smallest degree of Provocation of any Individual; between these two Extremes, all Actions contrary to the public Good and called Crimes, will be contained, proceeding by almost imperceptible degrees from the first to the last in this Progression. It will be enough if in such Progressions, Actions culpable, are gradually and orderly distinguished under each of their four respective kinds, whereof we have made mention in the 7th Chapter.
- 229. We have made a particular Class of those Crimes which lead directly and immediately to the destruction of the Society, and tend to injure the Head thereof, such being the most important, because they are the most prejudicial to Society. These are called Crimes of High Treason.
- 230. In the next place are ranked those Crimes which affect the Security of Individuals.
- 231. It were impossible for Society to subsist without punishing with Severity the Violators of this Right. Crimes attempted against the Life and Liberty of the Citizen are of the Number of those of the first Magnitude. And under this Denomination are included, not only Murder committed by common People, but also Violence of the same Nature affected by Persons of what Descent and Merit soever.
- 232. Robbery and Theft, whether attended with Violence, or not.
- 233. Injuries which affect the Honour of Persons, that is, which tend to deprive them of that due degree of respect which a Citizen has a Right to exact from others.
- 234. It may not be useless to repeat here, what many have affirmed and others written concerning Duels: That the most effectual Means to prevent these Crimes is to punish the Aggressor, that is, him who gave Occasion to the Duel; and to declare the Person innocent, who gave no cause to the Duel, but was constrained to defend his Honour.
- 235. To smuggle Goods is actually robbing the State. This Crime arose from the Law itself, for the greater the Duties are and the greater the Profit gained on smuggled Goods, the greater consequently becomes the Temptation; and this Temptation is still increased by the Facility of carrying on this clandestine trade, when the Boundaries of the State which are guarded are of vast Extent, and when the Goods prohibited, or highly taxed, are small in Bulk. The forfeit of prohibited Goods and of those carried with them, is exceedingly just. Such a Crime deserves important Punishments, as Prison, Slavery, analogous to the Nature of the Crime. The Prison for a Smuggler should not be the same as that for a Murderer, or a Highwayman; and the most suitable Punishment seems to be Labour of the Guilty Person, computed and fixed at the same Value as that of which he attempted to cheat the Public Treasury.
- 236. It is necessary here to mention Bankrupts, or Persons in Trade who abscond from their Creditors. The Necessity of Good Faith in Contracts, and the Safety of Trade, obliged the Legislator to furnish Creditors with Means for obtaining Payment from their Debtors. But the Bankrupt who absconds to defraud his Creditors should be distinguished from the Honest Man who has inadvertendy overtraded himself; the latter, if he can clearly prove that disappointments from his own Debtors, or Losses happening to them, or Misfortunes which could not be guarded against by human Prudence, have deprived him
THE GRAND INSTRUCTIONS... [The Macartney-Dukes Text] 477 of his own Property, must not be treated with the same Rigour as the former. For what Reason cast him into prison? Why deprive him of his Liberty, the only Possession he has now left? Why subject him to Punishments which are due to Criminals alone, and urge him even to repent of his Honesty? Be it so. Let him not be cleared till his Creditors are satisfied for their Debt, let him not have Liberty of withdrawing himself without the Consent of the Parties concerned, Let him be obliged to employ his Industry and Abilities to put himself in a Condition to satisfy those to whom he is indebted. But never by any sound Argument can that Law be justified which would deprive him of his Liberty without any benefit to his Creditors.
- 237. Certainly it is possible on all Occasions to distinguish Fraud attended with aggravating Circumstances from an Enormous Error, and an Enormous Error from a slight one, and this again from perfect Innocence; and establish Punishments by Law according to such Distinction.
- 238. A salutary and prudent Law might in a great measure prevent fraudulent Bankrupts, and at the same time provide Means to relieve the Conscientious and Industrious Man from Accidents which he is liable to. A public Register regularly kept of all Mercantile Contracts, which every Citizen should be permitted without Interruption to consult and Examine, A Bank established by a wise and well ordered Tax levied on Mercantile People, from which proper Sums might be drawn for assisting unfortunate though Industrious Traders; these would be Institutions attended with many Advantages, without creating any real Inconveniences.
- 239. Question 8. What are the most effectual Methods for preventing Crimes?
- 240. It is much better to prevent than to punish Offences.
- 241. To prevent Crimes is the Intention and End of a Good Legislator, which is no more than an Art, to lead People to the most perfect Good; or (if Evil cannot be entirely extirpated from among them) to diminish that Evil as much as possible.
- 242. When we prohibit many Actions by Moralists termed indifferent, We do not thereby prevent the possible Crimes which may arise from them; but in the contrary we produce new ones.
- 243. Would you prevent Crimes, let the Laws respect every Individual Citizen more than the Ranks established among Citizens.
- 244. Let the People fear the Laws, and let them fear nothing besides them.
- 245. Would you prevent Crimes, let Knowledge be diffused among the People.
- 246. A Code of wholesome Laws, is nothing else than a Restraint upon the Self Will of Man from injuring his fellow Creatures.
- 247. Again, Crimes may be prevented by rewarding Virtue.
- 248. In fine, the most sure though at the same time the most difficult Method to render the People better, is perfecting their Education.
- 249. In this Chapter, there are some repetitions of what has been said before; but whoever examines it with the least Attention, will see that the Subject itself required them; besides, what is so very interesting to the human Race, may very reasonably be repeated.
- 250. Civil Society like everything else, requires an Established Order, to which there must be one part to direct and command, and another to obey.
- 251. This is the Origin of every kind of Subjection which is more or less easy, according to the Situation of those who obey.
- 252. Since therefore, the Law of Nature commands us to labour to the utmost of our Power for the Happiness of all People, We are obliged to render the Situation of those who are subjected, as easy as sound Judgement will allow.
- 253. And consequently, to avoid reducing the People into a State of Slavery, unless on such urgent Occasion as indispensably constrain us to it; and then not for private Interest, but for the public benefit. However, such Occasions very seldom or never Occur.
- 254. Of what kind soever Subjection be, It is necessary that Civil Laws should prevent the abuse of Slavery on the one hand, and guard against the Dangers which may arise from thence on the other.
- 255. Unhappy is that Government in which it is necessary to establish rigorous Laws.
- 256. Peter 1st enacted a Law in the Year 1722, that Idiots, and those who torment their Slaves should be put under the Care of Guardians: the former part of this Law is executed, and why the latter part is neglected, is a Mystery.
- 257. In Lacedemonia, Slaves could obtain no Justice. And so excessive was their Misery, that they were not the Slaves of one Citizen only, but also of the whole Community.
- 258. At Rome, an Injury done to a Slave was reckoned only as so much loss to his Master. They esteemed it the same thing to wound a Beast or a Slave; and the dimunition of the Value being the only Consideration, this was appropriated to the benefit of the Master and not of the injured Person.
- 259. Among the Athenians, whosoever treated a Slave with Cruelty was severely punished.
- 260. A Considerable Number of People should not be render’d free at once, and by a general Law.
- 261. The Law may establish something useful for vesting Property in Slaves.
- 262. To Conclude the whole, let us repeat this Maxim, that that Government is most conformable to Nature, the peculiar genius of which corresponds best with the Genius of the People for whom it is established.
- 263. At the same time it is abundantly necessary, that the Causes should be prevented which have so often rendered Slaves refractory to their Lords; for without knowing these Causes, it is impossible to prevent such Evils by Laws, though the Tranquillity of both Parties depends upon it.
Chapter 12 th
- 264. Of Population.
- 265. Russia not only has not Inhabitants enough but it contains immense Tracts of Land, neither peopled nor cultivated. And therefore it is impossible to devise sufficient means of Encouragement for increasing the Number of People in the State.
- 266. The Peasants have generally from 12 to 15 or 20 Children by one Marriage, but rarely does a fourth part of them attain to the Age of Maturity. Wherefore there must certainly be some Evil, either in their Diet or in their manner of Life, or in their Education, which is so destructive to this Hope of the State. How flourishing would the Situation of this Empire be, if it were possible by wise Institutions to avert or prevent this fatal Ruin.
- 267. Add to this, that about two hundred years ago, a Disease unknown to our Ancestors, was brought from America to these Northern parts and diffused itself to the Destruction of the human Race. This disease spreads most Melancholy and destructive Consequences throughout many Provinces. As great Attention should be paid to the Health of Citizens, it would be therefore prudent to cut off the Communication of this Infection by Laws.
- 268. The Laws of Moses might here serve as a Pattern.
- 269. It appears farther, that the Method newly invented by the Noblemen of collecting their Revenues, both diminishes Population, and Agriculture in Russia. Almost all the Estates are laid under a certain Tax, and the Owner, having seldom or never been upon his Estates, levies upon every Soul, 1, 2, or 5 Roubles a head, without considering by what Methods his Peasants obtain this Money.
- 270. It would be very necessary to prescribe Laws, to oblige these Landlords to levy their Taxes with greater Discretion; and to exact such Taxes only which least remove the Peasant from his House and Family, whereby Population will increase, and Agriculture becomes flourishing.
- 271. But at present, some Husbandmen do not see their House for 15 Years together, and yet annually pay their Tax to the Lord, seeking their livelihood in Cities remote from their own home and strolling almost all over the Empire.
- 272. During a time of public Tranquility and Happiness, Population easily increases.
- 273. Meadow and Pasture Lands are commonly bare of People, because few find Employment there; while Arable Lands furnish Employment for and maintain a greater Number of People.
- 274. Wherever People live comfortably, there they always multiply.
- 275. But Countries oppressed so much with Taxes, that the People with all their Care and Industry can with great difficulty support themselves, must in process of time be certainly stripped of their Inhabitants.
- 276. Where People are Poor only because they live under oppressive Laws, and who consider their Lands not so much the Foundation of their Maintenance as the Source of their Misery, in such Places, Population cannot flourish: Destitute of common necessaries themselves, how should they think of providing for their Offspring? Incapable of procuring Assistance in their own Sickness, how can they rear helpless Creatures like their Infants ever struggling with Diseases? They bury their Money in the Earth, fearing to let it Circulate. They dread appearing Rich. They are afraid that Riches should draw upon them Oppression and Persecution.
- 277. The facility of speaking and the difficulty of examining the Subject on which they speak occasion many to say, “The greater the Poverty in which subjects live, the more numerous are their families”. And again, “The greater the Taxes laid upon them are, the more they become in a Condition to pay those Taxes”. Two Sophisms these, which every have brought, and ever will bring Destruction upon absolute Governments.
- 278. The Evil is almost incurable, when the Devastation of States of their Inhabitants has been of long Continuance, through some interior Evil and bad Policy: In such Places, People have wasted away by an imperceptible Disease, now almost wrought into their Nature; born in Indolence and Misery, amid Violence and false Principles adopted by the Government, they have beheld their own Extirpation, often without perceiving from what Causes it arose.
- 279. For the recovery of a State thus stripped of its Inhabitants, in vain shall we look for Aid from future Generations; this Hope is entirely blasted, People dwelling in their Native Wilds have neither Encouragement nor Industry; Fields capable of sustaining a whole People, scarcely afford Sustenance to a single Family; the Common People in those parts do not even partake of the little they afford, that is, of the uncultivated Land, of which there is a vast Quantity; some principal Citizens, or the Crown, have by insensible degrees got Possession of the whole Extant to those Lands which now lie waste. They are abandoned for Pasturage to impoverished Families and the Industrious Man gets nothing at all.
- 280. In such Circumstances, it behoveth us to do with regard to those Lands, what the Romans did in one part of their Dominions; to take the same measures in our Scarcity of Inhabitants, which they took in their Superfluity, viz. Divide the Lands among such Families as have none, and furnish them with Means to plough and cultivate them. This distribution should be made immediately as soon as a Person is found who would accept it upon the Conditions of directly setting about labouring them without loss of time.
- 281. Julius Caesar gave rewards to those who had many Children. The Laws of Augustus went still farther, they inflicted a Punishment upon those who were unmarried, and augmented the Rewards of those who were married, as well as those who had Children. These laws were inconsistent with our orthodox Religion.
- 282. In some States Privileges were granted to Married People by the Law, thus: the Magistrates, and Officers in Towns were chosen from among them. A Person unmarried, and having no Children, was incapable of taking the lead in Affairs, and of setting in any Court of Judicature; the Peasant who had more than five Sons paid no sort of Taxes.
- 283. Unmarried People among the Romans, could inherit nothing by Will from Strangers; and those who were married but had no Children, received only half the Legacy.
- 284. The Advantages which Man and Wife might enjoy from each other’s Testament, were limited by Law; if they had Children by each other, they might have the whole in their Wills, but if not, the Survivor could inherit only a tenth part of the Effects in consideration of their Marriage. And again, if there were Children by a former Marriage, in that Case they could bequeath to each other as many tenth parts as there were Children.
- 285. If a Husband absented himself from his Wife upon any other Cause then that of the Public Business, he could not be her Heir.
- 286. In certain places, a stated salary was appointed to those who had ten Children, and still more to those who had twelve. But the matter here is not to reward extraordinary Fertility; it is rather necessary to render their Lives as comfortable to them as possible. That is, to furnish the careful and industrious with Means to provide for themselves and Families.
- 287. Temperance contributes to the increase of Population.
- 288. The Laws generally give Parents the Power of disposing of their Children in Marriage, but what avails this, while Oppression and Avarice usurp to themselves unjustly the parental Authority? It should be necessary even to encourage Parents to dispose of their Children in Marriage, and not to deprive them of the Liberty of marrying them according to their best Judgement.
- 289. With regard to Marriages, it is highly necessary and important to enact one uniform and clear Law, to determine at what Age Marriage should be permitted, and at what Age it should not be permitted.
- 290. There are States, where on Account of a deficiency of Inhabitants, Foreigners, illegitimate Children, or such whose Mothers only were Natives are naturalized; but when they have by these Means acquired a sufficient number of People, it is no longer continued.
- 291. The Wild People of Canada burn their Prisoners, but when they have any empty Huts which they can give to the Captives, they then adopt them into their Tribes.
292. There are People, who having conquered other Parts, intermarry with the conquered People; whereby they attain two great Ends, the Securing to themselves the conquered People, and an Increase of their own.
- 293. Of Manufactures and Trade.
- 294. There can be no skilful Manufactory nor well founded Trade where Agriculture is neglected, or not industriously carried on.
- 295. Agriculture cannot flourish there, where no one has any Property of his own.
- 296. This is founded upon a Principle exceedingly simple. “Every Man is more concerned for his own Property than for that which belongs to another, and will use no Endeavours whatever for that which he has reason to fear may be taken away by another”.
- 297. Agriculture is the most laborious Employment of Man. The more therefore the Climate discourages this Labour, the more should the Laws encourage it.
- 298. In China, the Emperor informs himself annually of that Husbandman who has excelled all other in his Art, and makes him Member of the Eighth Rank in the Empire. This Sovereign every year with a pompous Ceremony, holds the Plough in his own hands, and begins to plough the Land himself.
- 299. It would not be amiss to grant premiums to those Husbands-men whose Lands are found to be in the best Condition.
- 300. And to those Manufacturers who are most Industrious in their Business.
- 301. This Institution is every were crowned with Success, it has been effectual even in our own days to the Establishment of very important Manufactories.
- 302. There are Governments, where Treatises on Agriculture are published by the Magistracy in every Village, by which every Husbandmen may find Instructions in whatever he does not perfectly know.
- 303. There are Idle People: in order to root out Idleness from a People which arises from the Climate, it is necessary that such Laws should be established in that place, as would deprive all those People of the Means of Subsisting who will not labour.
- 304. All idle People are presumptuous in their Behaviour, for as they do not labour themselves, they in some measure consider themselves as Lords over those who do labour.
- 305. A People sunk in Indolence are generally very proud. It is possible to oppose the Effect to the Cause which produced it, and to extirpate Indolence by Pride.
- 306. For the Love of Glory is as powerful to support, as Pride is dangerous to destroy a Government; to prove which, we need only represent to ourselves on the one hand, the numberless Blessings which flow from the love of Glory, hence Industry, Sciences, Arts, Politeness and Taste; and on the other hand, the infinite Number of Evils arising from Pride among some Nations, as Idleness, Poverty, Indolence, Extirpation of the People casually fallen, under their Government, and in the end, the destruction even of themselves.
- 307. Pride leads Man to be ignorant of Labour, but the Love of Glory excites him to understand how to labour better than others.
- 308. Look with Attention upon all Nations, you will see that for the most part, Presumption, Pride and Idleness are constant attendants on each other.
- 309. The People of Achim are both proud and lazy: He who among them has no Slave, hires one, if it be only to go 100 Paces, and carry two Pecks of Rice for him; he would think it a disgrace to carry it himself.
- 310. Women in India esteem it a Shame to learn to read; this say they, is a Business fit for Slaves who among them sing the Spiritual Hymns in the Churches.
- 311. A Man is not therefore poor because he possesses nothing but because he does not labour; he who has no Revenue yet is industrious, lives as comfortably as another who has 100 Roubles a Year Income and does not labour.
- 312. The Mechanic who has taught his Children his own Art, and has left them that as an Inheritance, has bequeathed to them an Estate which is multiplied in importance to the Number of them.
- 313. Agriculture is the first and principal Employment to which a People ought to be incited; the next is the manufacturing of their own Productions.
- 314. Machines which shorten the Labour of Manufacturers, are not always useful; if a Commodity worked by hands, stands in a moderate price which is equally suitable to the Buyer and Maker, then
THE GRAND INSTRUCTIONS... [The Macartney-Dukes Text] 485 such Machines, since they diminish the Number of working People, are pernicious in a State that is well peopled.
- 315. However, distinction must be made between what is manufactured for home Consumption, and what is for Exportation into foreign parts.
- 316. The manufacturing by Machines, cannot sufficiently be encouraged in those Goods which are exported to other People, who receive, or may receive such like Goods from our Neighbours, or from other Nations, but especially in our Situation.
- 317. Trade flees from Oppression, and takes Asylum where her tranquillity is undisturbed.
- 318. The Athenians did not carry on so great a Trade as might have been expected from the Labours of their Slaves, their great Number of Seamen, the Influence they had over the Grecian Cities, and above all, from the Excellent Institution of Solon.
- 319. In many Places, where all things are farmed out, the direction of collecting the Government Taxes ruins Trade by its Injustice, Oppressions, and excessive Exactions; nay, before it proceeds so far, it is destructive by the many difficulties it causes, and the forms which it demands.
- 320. In other Places, where the Custom houses are on Credit, Trade is carried on with remarkable facility; one written word terminates Affairs of the greatest Importance; the Merchant has not need to lose his time, nor have a number of Men placed about him to lessen the difficulties which are spun out by the Farmers, nor has he any Occasion to cringe to these Farmers.
- 321. Freedom of Trade is not to let the Merchant do as he pleases, this would be rather enslaving Trade; for what confines the Merchant, does not confine Trade. In free Governments, the Merchant finds many Contradictions, but where Slavery is established, he is never so much confined by the Laws. England prohibits the Exportation of her Wool and Hair; she has enacted that Coals shall be brought to the Capital by Sea; she has prohibited the Exportation of Horses for breeding, Vessels trading from her American Settlements are obliged to cast Anchor in England; by these, and such like Methods, she confines the Merchant, but all for the Advantage of Trade.
- 322. Wherever there is Commerce, there are Custom houses.
- 323. The Object of Commerce is to Export and Import Goods for the benefit of the State. And the Object of Custom houses is a certain
Collection of Duties on those Imports and Exports, for the benefit also of the State. The State therefore should maintain a just Balance between its Customs and its Commerce; and make such Regulations, that these two Objects may not clash with each other: And then it is, that the People there enjoy the Liberty of Commerce.
- 324. England has no fixed Book of Rates, or Tariff, settled with other Powers; her Tariff varies (to use the Expression) at every Session of Parliament by particular duties, either imposed or removed; being always exceedingly jealous of the Trade carried on with her, she seldom binds herself by Treaties with other States, and depends upon no other Laws than her own.
- 325. In certain States, there are Laws made exceedingly proper to reduce those Nations which carry on a home trade; such as prohibition to import any other than unwrought Goods, and that out of their own Dominions; And forbidding to come and trade with them on any other Ships than those built in the Country from whence they sail.
- 326. The States which enact these Laws should be in a capacity easily to carry on Trade themselves, otherwise they do themselves at least equal prejudice. It is better to do Business with a People who demand little of us and whose Commercial Wants render them in some measure dependent upon us; with a People whom from the Extent of their Views or Business, know where to bestow the Superabundant Merchandise; who are rich, and can take off many Commodities; who will pay for them in ready Money; who (to use the Expression) are obliged to be faithful; who are peaceable from fixed Principle; whose Account is in Gain, and not in Conquest: I say, it is much better to do Business with such a People, than with other our constant Competitors, and who will not grant us all these Advantages.
- 327. Much less should a State subject itself to the Inconveniency of selling all its Goods to one Nation only, under pretence that they will take the whole at a certain price.
- 328. The true Maxim is, to exclude no People from your Trade without very important Reasons.
- 329. In many States, Banks are established with a good Success, which by their Credit, having established new Signs of Value, have increased also the Circulation in these States. But in order that in Monarchical Governments such Establishments may be securely relied on, these Banks should be connected with religious Institutions, such as Hospitals, Orphan Houses, Sec; they should be independent of all
THE GRAND INSTRUCTIONS... [The Macartney-Dukes Text] 487 Magistracies, and guaranteed by Letters Patent in such manner, that no one may or ought to interfere with them; so that all People may have the utmost Confidence and Assurance that the Sovereign will never offer to meddle with the Money, nor injure the Credit of such Establishments.
- 330. One of the best Writers upon Law has the following Reflexion: “Struck by the practice of certain States, some have imagined that Laws should be established encouraging the Nobility to enter into Commerce; This Method would ruin Nobility without any Advantage to trade; it is therefore wisely ordered in those Places where Merchants are not Noble, but may become Noble; they have always the hope of acquiring this distinction as it is not actually prohibited; and at the same time the most certain means of emerging from their Profession of a Burgher, is to conduct their Trade with the greatest Industry, or to be successful in it, which is usually connected with Wealth and Plenty. It is against the very Nature of Trade for the Nobility to be engaged in it in an absolute Government; It would be the ruin of Cities, as the Emperors Honorius and Theodosius affirm, as it would take away the means of Commerce between the Merchant and Peasant. It is against the Nature of absolute Government for the Nobility to enter into Commerce; the Custom which permitted the Nobility to pursue Commerce in a certain State, is one of the Causes which greatly contributed to weaken the ancient form of Government in that State”.
- 331. There are people who argue contrary to this Opinion and say that Noblemen who are not actually in the Service of the Government should be permitted to trade, provided they entirely conform themselves to the Laws of Trade.
- 332. Theophilus seeing a Ship loaden with Merchandise for his Consort Theodora, set it on fire: I am an Emperor said he to her, and you would make me Master of a Vessel. How can poor people gain their livelihood, if we take upon us their Business and Profession? He might have added. Who can restrain us, if we think proper to enter into Monopolies? Who will force us to fulfill our Engagements? When the Courtiers see us carry on trade they will be desirous to pursue it likewise; and they will be more mercenary and more unjust than Ourselves. The People put Confidence in us in Consideration of our Justice, and not of our Riches; The many Taxes we levy which reduce them to such Poverty, are manifest Tokens of our own Necessities.
- 333. When the Portugese and Castilians first rules in the East Indies, Commerce there presented such very rich Branches, that their
Sovereigns thought proper to seize themselves. This ruined their Setdements in that part of the World; the Viceroy at Goa gave exclusive Privileges to several People, nobody puts Confidence in such Methods as these; the Commerce decayed by a continual Change of the Persons to whom it was entrusted; no one will protect, nor be anxious about a Trade which he finds will be utterly ruined in the time of his Successor. The Gain remains in the hands of a few People, and doth not diffuse itself far and wide.
- 334. Solon made a Law among the Athenians to prevent the Attaching any Man’s Person for Civil Debts. This Law was very Good for the common affairs of civil Life, but We have a reason not to observe it in Affairs relating to Commerce; for Merchants are often obliged to entrust great Sums for a very short time, and mutually give and take them from each other; so that the Debtor must be obliged to fulfil his Engagements at the appointed times, which presupposes personal Seizure. In the ordinary transactions of civil Contracts, the Law should not admit personal Seizure; because that injures the Liberty of one Citizen more than it contributes to the benefit of another. But in commercial Contracts, the Law should rather consider the public Good than the Liberty of an Individual. However, this is not repugnant to certain Restrictions and Limitations which Humanity and the Wisdom of civil Government may sometimes require.
- 335. The Law established at Geneva which excludes from any Office in the Government and from the Great Councils of the State, the Children of those who lived or died insolvent, unless they satisfy their Father’s Creditors, is very commendable. The Effect of this Law is Confidence in the Merchant, in the Government and in the City itself. The Credit of every Individual in that City has the Additional force of the Credit of the whole Community.
- 336. In this the Rhodians went still further, Among whom a Son could not evade paying his Father’s Debts, nor receiving the Inheritance which the deceased had left him. The Rhodian Law was calculated for a Community founded upon Commerce; why should it be imagined that the very Nature of Trade required the following Limitation to be annexed to this Law? That Debts contracted by the Father after the Son commenced Trade himself, should not affect the Estate acquired by the latter. A Merchant should always be well acquainted with his own Circumstances, and at all times conduct himself according to the State of them.
- 337. Xenophon would have rewards given to those who presiding over Trade, decided any Law suit arising therefrom with the greatest Expedition; he foresaw the Necessity of verbal Administration of Justice.
- 338. The Affairs of Commerce can ill bear the Formalities of Judicial proceedings; Disputes in Trade arise daily and must infallibly be succeeded every day by others of the same kind; for which reason they ought to be decided every day. It is quite otherwise in Affairs of common Life, which though of the greatest Importance to a Man’s future Condition, happen very rarely; for Example, a man seldom married more than once. Wills and Deeds of Gift are not made every day, And a Person can only come to Age of Majority once in his Life.
- 339. Plato says that in a City where there is no Maritime Trade, there should be but half the Number of civil Laws. And this is very true; for Commerce introduced into one Place People of different Countries, a great Number of Contracts, various Species of Property, and Means to acquire it: so that in a trading City, there are fewer Judges and more Laws.
- 340. The Right which appropriates to the Sovereign the Inheritance of a Foreigner’s Effects who died in his Dominion when he has an Heir, as also the Right which gives to a Sovereign or his Subjects the whole Cargo of a Ship wrecked against his Shores, are excessively Impolitic and Inhumane.
- 341. In England the Magna Carta prohibits seizing the Lands or Revenues of a Debtor, when his moveable or personal effects are sufficient to pay his Debts; and when he himself is willing to give them up. At that time every Species of an Englishman’s Property was esteemed as ready Money: this Charter does not prevent Lands and Revenues from representing Ready Money in the same manner as his other Effects; its Intention is to guard Against the Injuries which might proceed from rigorous Creditors: for Justice suffers, when the Effects taken for Debts destroy by their Excess that Security which every one has a Right to demand; and if one Species of Effects is sufficient to pay the Debts, there is no manner of reason to take another for the payment of them. But as Lands and Revenues are taken for the payment of Debts when other Effects are deficient to satisfy the Creditors, it should seem that in such Case, even this Species cannot be excluded from the Number of Signs which represent ready Money.
- 342. The Standard of Gold, Silver and Copper in Coins, as also the nominal and intrinsic Value thereof, should constantly remain in a fixed State, and no deviation should be made therefrom on any pretence whatever. For every Alteration in the Money injures the Credit of Government; nothing should be less exposed to Variation than the thing which is the measure of all others; Commerce in itself is exceedingly uncertain, so that the Evil would be greatly augmented by adding another Uncertainty to that which is founded upon the Nature of things.
- 343. In certain States, there are Laws which prohibit Subjects from selling their Lands, that they may not thereby carry with them the Money arising therefrom into other Countries. These Laws might have been Good at that time, when this Wealth of every State belonged to it in such manner that the Difficulty was great to transfer it into other Countries; but as since that time by means of Bills of Exchange, Wealth is proper to no one Country in particular, and that it can be so easily transported out of one State into another, that Law must be called a bad one which does not permit every one to dispose of his Lands for the establishment of his Affairs according to his own good Pleasure, seeing he is at his Will to do so with his Money: and this Law is farther bad, because it gives movable Goods a preference to immovable; because it deters foreigners from coming to settle in such Places, and in fine, because it is easy to evade such a Law.
- 344. Whenever any one forbids what is naturally permitted and indispensably necessary, he does nothing else than render those who do the thing forbidden, infamous People.
- 345. In Commercial States, where many People have nothing else than their Ingenuity to depend on, the Legislature is often obliged to employ its Cares for the Assistance of Aged, Sick, and Orphans in their Necessities: a well regulated State makes the Arts themselves conducive to the Assistance of such Objects, where the ones are employed in Labour suitable to their Strength, and the others are taught to labour.
- 346. The giving Alms to the Poor in the Streets cannot be looked upon as an Accomplishment of the Duties of Government, which must supply all Citizens with sure Maintenance, Food, proper clothing, and a Way of Life not detrimental to the Health of Man.
- 347. Of Education.
- 348. The Principles of Education are the fundamental Principles which prepare us to be Citizens.
- 349. Every private Family should be governed according to the Example of a great Family including all the parts in itself.
- 350. It is impracticable to give a general Education to a very numerous People, and rear all the Children in Houses built on purpose; for this reason, it will be useful to lay down a few general Rules which may serve as advice to all Parents.
- 351. Every one is obliged to teach his Children the Fear of God as the beginning of sound Wisdom, and to instill into them all those Duties which God requires of us in the ten Commandments, and our Orthodox Eastern Greek Religion in her Rules and other Traditions.
- 352. And also to inspire them with a Love of their Country, and accustom them to pay respect to the established civil Laws, and to esteem the Magistracies as Courts anxious for their temporal Happiness according to the Will of God.
- 353. Every Parent should refrain before his Children not only from Actions but also from Words tending to Injustice and Violence; such as Quarrels, Oaths, Fighting, Cruelty and the like Conduct; and not suffer those men who attend their Children, to set before them such vile Examples.
- 354. He should forbid his Children and also those who are about them to Lie, even in jest: for Lying is the most pernicious of all Vices.
- 355. We will here annex an Instruction to every private Person, which is already in print, as serving for a general Rule of Education that has been, and still is by us established for Schools and for the whole Community.
- 356. “It is necessary to instill into Youth the Fear of God, to settle their Hearts in laudable Dispositions, to teach them the essential Rules which are suitable to their Situation, to kindle in them the Love of Industry and the abhorence of Idleness as the Source of all Evil and Error, to teach them a proper Behaviour in their Actions and Conversation, Courtesy, Good Manners, Compassion for the Poor and the Unfortunate, and an Aversion to every thing Audacious, to learn them private Economy in all its minute parts, and as much of it as is useful, to deter them from Dissipation, and particularly to ingraft in them a habit of Decency and Cleanliness, as well in their own persons, as in what belongs to them, In a word, to endow them will all those Virtues and Qualifications which belong to good Education by which in our time they may become true Citizens useful and ornamental Members of Society”.
- 357. Of Nobility.
- 358. Husbandmen live in Villages and Country Places, and till the Earth; the Fruits arising from which Labour maintain all Ranks of People, and this is their Lot.
- 359. Burghers inhabit Towns and are employed in Arts, Sciences, Trades and Commerce.
- 360. Nobility is an Appellation of Honour, by which those who are adorned with it are distinguished from others.
- 361. As among People some were more virtuous and together more eminent for their Services than others, it was anciently resolved to distinguish the most virtuous and Serviceable by giving them in honour this Appellation, and it was established that they should enjoy various Privileges founded upon the abovementioned chief Principles.
- 362. Still more was done herein. Means were established by Law, whereby this Dignity might be obtained from the Sovereign, and those Actions were pointed out by which that Dignity would be forfeited.
- 363. Virtue and Merit raise People to the Rank of Nobility.
- 364. Virtue and Honour must be the Maxims thereof; Maxims which prescribe Love to the Country, Zeal to the Service, Obedience and Fidelity to the Sovereign, and which are a constant Check to the Committing a dishonourable Action.
- 365. The Military Service furnishes the most frequent Occasions of attaining this Honour; to defend the Country and vanquish its Enemy, is the Chief Privilege and Employment of a Nobleman.
- 366. But though the Military Art is the most Ancient Method by which People attained the Dignity of Nobility, and though Military Virtue is indispensably necessary for the Duration and Preservation of the State;
- 367. Nevertheless the Administration of Justice is no less necessary in Peace than in War, and the State would be destroyed without it.
- 368. Whence it follows, that this Dignity is not peculiar to Nobility alone, but may be acquired also by Civil as well as Military Virtues.
- 369. From whence again it follows, that no one can be deprived of his Nobility, but by his own Conduct, when contrary to the fundamental Principles of his Dignity, whereby he renders himself unworthy of his Appellation.
- 370. Nay even the Honour of Nobility itself and the preserving it untainted require, that he who is convicted of violating the Principles of his Rank, should be excluded from it and lose his Dignity.
- 371. Treason, Rapine, Theft of all kinds, Violation of Oaths and promises, Bearing false Witness, suborning others to do so, Making fraudulent Leases, or any other such like Writings, are Actions contrary to the Dignity of Nobility.
- 372. And so in a word is every kind of Fraud contrary to Honour, especially such Actions as are attended with Baseness.
- 373. But the surest supports of this Dignity consist in Love to the Country, and Observance of the Laws and of all Duties, whence will follow
- 374. Glory and Applause, especially to those Families who reckon among their Ancestors the greatest Number of such Persons as were distinguished by their Virtues, Honour, Merit, Fidelity, land Love to the Sovereign.
- 375. And upon these primary Principles which constitute the Essence of Nobility, must all the Privileges of Nobility be founded.
Chapter 16 th
- 376. Of the Middling sort of People.
- 377. It is said above Chapt. 15th that “Burghers are the Inhabitants of Towns, who are employed in Manufactures, Trade, Arts and Sciences”. In a Government where Nobility is established upon the Principles prescribed in the preceding Chapter, there it is also useful to have an Institution founded upon Virtue and Industry, and productive of them, for the benefit of those of whom we shall now treat.
- 378. This sort of People is the Middling sort, of which we are going to speak and from which great Advantages accrue to the State, if this Order is founded on the principles of Sound Morality and the proper Encouragement of Industry.
- 379. These being free are neither included among the Nobility nor Husbandmen.
- 380. In this Order of the People must be reckoned all those who being neither Nobles, nor Peasants are employed in Arts, Sciences, Navigation, Trade and Manufactures.
- 381. In this Class also must be numbered, all those who not being Noble, shall come from the Schools and Seminaries of what Denomination soever, Ecclesiastical or Secular, which have been established either by Us, or our Predecessors.
- 382. Likewise the Children of People belonging to the public Offices: but as among these latter there are several ranks, without enlarging upon each one only give a hint for Reflection about them.
- 383. As the fundamental Principles of this Middling Order of the People is Virtue and Industry, so whatever is contrary to these Principles, as breach of Trust, and of Promises, especially if Idleness and Deceit be the Cause, must exclude Men from this Order.
- 384. Of Towns.
- 385. Towns differ variously from each other, being of more or less Importance according to the Nature of their Situation.
- 386. In some, there is a greater Circulation of Trade by Land or Water.
- 387. In others, Goods brought in are only packed up for Exportation.
- 388. And others again serve only as Marts for the Husbandmen who come thither from the several Districts to dispose of their Products.
- 389. Some are flourishing in Manufactories.
- 390. Others being situated near the Sea, unite all these and other Advantages.
- 391. Some have Fairs.
- 392. And others are Capital Towns, &c.
- 393. But however various be the Situation of Towns, in this they should agree in general, that they all have one common Law, which may determine what a Town is, who is esteemed an Inhabitant in it, who constitute the Community of that Town, who may enjoy the benefits arising from the Nature of that Place’s Situation, and by what means a Person becomes an Inhabitant of it.
- 394. From hence arises the Name of Burgher; which is given to those who are Interested in the Welfare of the Town, possessing House and Property in it, and in order that they may enjoy the Security of Life, Health and Property without Interruption, they are obliged to pay certain Taxes.
- 395. But those who do not contribute to this public Pledge (as it may be called) have no right to the Advantages of a Burgher.
- 396. Towns being founded, it remains to consider what particular Privileges may be granted them without general Prejudice and accordingly what Regulations are necessary thereupon.
- 397. In Towns where there are many Branches of Trade, great Care must be taken, that through the Probity of the Citizens, Credit be preserved in every part of Commerce; for Probity and Credit are the Soul of Commerce; and where Cunning and Fraud are superior to Probity, there Credit cannot exist.
- 398. Small Towns are very necessary about the several Circles, that therein the Husbandman may dispose of the produce of the Earth and of his Labour, and thereby furnish himself with what necessaries of Life he may require.
- 399. Archangel, St. Petersburg, Astrakhan, Riga, Revel and the like, are Cities and Seaport Towns; Orenburg, Kiakhta, and many others, have a Trade of a different Nature; whence may be seen what great Connection the Situation of Places has with civil Establishments, and that there is no possibility of making Regulations proper for each Town, without first being acquainted with their respective Circumstances.
- 400. It is yet a doubtful Point whether there should be any Establishments of Companies and Corporations in Towns, or whether it is better to be without them; and what Connection such Establishments have with Trades and Manufactures.
- 401. But it is incontestable that for introducing Mechanic Arts, Companies are useful; and that they only then become pernicious, when the Number of Workmen is limited; for such Restriction itself prevents the Increase of Manufactures.
- 402. In many Towns of Europe, these Establishments are so far free, that the Number of Workmen is unlimited, for any one may be registered in them, and it is observable that this has contributed to the enriching of those Towns.
- 403. In Towns thinly inhabited, Corporations may be useful, in order to have People skilful in the Mechanic Arts.
- 404. Of Succession.
- 405. The Order of Successions is deduced from the principles of Political, and not from the principles of Natural Right.
- 406. The Division of Property, Laws concerning this division, Inheritances upon the Death of the proprietor, are Points which could no otherwise be regulated, but by the Community; and consequendy by political, or civil laws.
- 407. The Law of Nature orders Fathers to maintain and bring up their Children, but does not oblige them to constitute them their Heirs.
- 408. Thus, a Father who has taught his Son any Art, or Trade capable of maintaining them, renders him thereby much richer, than if he had left him his small Property which might make him lazy and slothful.
- 409. True it is, Political and Civil Order in general require, that the Children shall be Heirs to their Fathers; but this Order does not require it to be so invariably.
- 410. It is a general Rule, that all Men are obliged to bring up their Children by the Right of Nature; but to give them the Inheritance is an Institution of political or civil Right.
- 411. Every State has Laws of Succession corresponding with its Constitution; Consequently paternal Property must descend agreeable to the manner prescribed by the Laws.
- 412. And the Order of Succession should be established invariably, that it may be properly known who is the Successor; and that no Complaints and Disputes may arise thereupon.
- 413. Every Law that is enacted must be observed by all and every one; and it must not be in the Power of any private Citizen to violate it by his particular Regulations.
- 414. As among the Romans the Order of Succession was founded upon the Constitutional Law, so no private Person could pervert it by his own Will; that is in the first Ages of Rome no one was allowed to make Wills; but this was Oppressive, as it deprived Man of the power of doing good Actions in the last Hours of his Life.
- 415. Therefore in Consideration hereof, a Medium was devised to make the Laws accord with the Will of Individuals: Permission was granted them to dispose of their Effects in the Assembly of the People;
THE GRAND INSTRUCTIONS... [The Macartney-Dukes Text] 497 and every Will was in a manner of Work of that Republic’s legislative Power.
- 416. In succeeding Times, the Romans had unlimited Power in making their Wills, which not a little contributed to overthrow by insensible Degrees the Constitutional Establishments regarding the division of Lands; And this more than any thing introduced a very great and destructive distinction between the rich and poor Citizens; Many divided Estates were thus collected into the possession of one Lord. The Roman Citizens had large Possessions, and an infinite Number of others had nothing at all, by which they became an insupportable Load to the Government.
- 417. The Ancient Athenian Laws did not permit a Citizen to make a Will; Solon permitted it, excepting those who had Children.
- 418. But the Roman Lawgivers possessed with the Idea of Paternal Power, permitted Fathers to make Wills even to the prejudice of their own Children.
- 419. It must be confessed that the Ancient Athenian Laws were much more agreeable to the principles of sound Reason, than were those of the Romans.
- 420. In some States they take a Medium between all these, that is, where Wills may be made of acquired Effects, but not that one Landed Estate be divided into several parts. And if the paternal Estate, or rather Patrimony is sold, or squandered away, the Law enacts to give the natural Heir a part of the purchased or acquired Effects equivalent thereto; Unless Proofs grounded on the Laws, render him unworthy of the Inheritance; for in this last Case, the next in degree succeeds in his stead.
- 421. Both the natural and nominal Heir may be permitted to decline an Inheritance by Will.
- 422. Among the Romans, Daughters were excluded from Inheriting by Will; and therefore Pretexts and Clandestine Methods were used to endow them; these Laws obliged People either to become infamous, or to despite the Ties of Nature which ingraft in Us Love to our Children; these are cases which must be avoided in making Laws.
- 423. As nothing renders the Laws more weak than a possibility by Fraud to evade them, so also unnecessary Laws diminish the Respect due to those which are necessary.
- 424. Among the Romans, Wives were Heiresses where it did not contradict the Law regarding the Division of Lands; but if this was, contrary to that Law, they could not succeed.
- 425. Му Opinion in this Matter, inclines rather to the Division of Property; because I esteem it a Duty incombent upon me to desire, that all People should have a Sufficiency for their Maintenance; besides, Agriculture would hereby become in a better Situation, and the State would receive much greater Benefit from some Thousands of Subjects enjoying a Moderate Substance, than from a few Hundreds exceedingly rich.
- 426. But the Division of Property must not injure the other general Rules established at the making of Laws, which are as much, or more useful for the preservation of the public Weal, and must not therefore be neglected.
- 427. A Division according to the number of Souls, as has been hitherto practised, is pernicious to Agriculture, burthensome in Collections, and reduce the last sharers into Poverty; but the Division of Inheritances to a certain degree, is more agreeable with the preservation of all those principal Rules, and both with the private and public Interest.
- 428. Children not attained to Age by Law are members of the domestic Family, but not of the Public; so that it is useful to establish a Court of Wards, as for Example.
- 429. 1st for Children left at the Father’s Death not at full Age, when their effects cannot yet be entrusted to their own Power, lest thro’ their immature Judgement they be wasted away.
- 430. 2nd for Idiots and Madmen;
- 431. And 3rd Not less for those who resemble them.
- 432. In certain free States, the nearest Relations of a Man who shall have squandered away half his Estate, or contracted Debts equivalent thereto, are permitted to prevent him from taking Possession of the other half of the Estate; the Revenues of this remaining half are divided into a certain Number of parts, one whereof is given to the reduced Person for his support, and the others are used to pay the Debts, while he at the same time is restrained from selling or pledging any more; when his Debts are paid, the Effects which his Relations preserved for his own Good, if he reforms are returned to him, but if not, he is only allowed the Annual Revenues thereof.
- 433. Certain Principles must be laid down proper to each of these Cases, that the Law may preserve every Citizen from the Violence and Extremity which may occur in this matter.
- 434. The Laws which entrust the Guardianship to the Mother are most concerned for the preservation of the Orphan, but those which
THE GRAND INSTRUCTIONS... [The Macartney-Dukes Text] 499 give it to the nearest Relation lay most stress upon the preservation of the Estate.
- 435. Among People of corrupted Morals, the Legislature made the Mothers Guardians of their Orphan Children; but among those whose Laws relied upon the Morals of Citizens, the Guardianship was entrusted to the Heir of the Estate, and sometimes to both.
- 436. Women among the Germans, had always Guardians. Augustus enacted, that Women having had three Children, should be free from Wardship.
- 437. Among the Romans, the Laws permitted Lovers to endow each other before Marriage, but prohibited so doing after the Wedding.
- 438. The Law of the Western Goths ordered Lovers to settle upon their future Wives no more than a tenth part of their effects; and during the first Year after Marriage to settle nothing on them.
Chapter 19 th
- 439. Of the Composition and Style of the Laws.
- 440. All Rules must be divided into three parts.
- 441. The first and principal is Laws.
- 442. The second takes the name of Temporal Institutions.
- 443. The third is called Edicts.
- 444. By the word Laws is understood all those Establishments which can never change, and of such the Number cannot be great.
- 445. By the name of Temporal Institutions is understood that Order with which all Affairs must be transacted, and upon which there are various Edicts and Regulations.
- 446. The word Edict implies whatsoever is done upon any particular Occasion, which is only casual and referable to any Person, and which afterwards may be altered.
- 447. The Book of Laws must contain every Matter separately and orderly in that place which belongs to it; thus Judiciary, Military, Commercial, Civil, City and Country Affairs &c., all in their due Order.
- 448. Every Law must be wrote in words intelligible to all, and at the same time Concise: wherefore, doubtless where necessity requires it, Elucidations or Explanations must be annexed for the Judges, that they may both easily see and also comprehend the force and use of the Law. The Military Code is filled with Examples of this sort which it may be convenient to follow.
- 449. But nevertheless, it is necessary to proceed with great Caution in these Elucidations and Explanations; inasmuch as they may easily rather obscure than clear up the Case, of which there have been many Instances.
- 450. When in any Law Exceptions, Limitations and Modifications are unnecessary, it is much better not to use them; for such particularities lead only to others still more minute.
- 451. If the Writer of the Laws is desirous to represent in them the reasons which induced him to publish some of them, the Cause of his so doing should merit it. Among the Roman Laws is one which decides that a Blind Man cannot pleade because he does not see the Distinctions and Ornaments of the Judges; this is a very sorry Reason, seeing so many good ones might have been alledged.
- 452. Laws must not be filled up wit Subtleties arising from quickness of parts; they are made equally for People of moderate as well as of quick Understanding; they contain not a Science of brightening human Wit, but the simple and just Reasoning of a Father anxiously concerned for his Children and Servants.
- 453. Sincerity must be observed throughout all the Laws, they are given to punish Vice and evil doings, so that they themselves must include great Virtue and Innocence.
- 454. The Style of Laws should be concise, simple; a direct Expression is much preferable to one periphrased.
- 455. When the Style of Laws is swelled and Sublime, they are considered in no other light, than as a Composition which manifests Vanity and Pride.
- 456. Laws should not be wrote with indeterminate Sentences, of which an Example follows. The Law of a Greek Emperor punishes him with Death, who should purchase a Freedman as though he were a Slave; or him who shall molest or frighten such a Man. Such an unlimited and doubtful Expression should not have been used, for Molesting and Frightening a Man depends entirely upon what degree of sensibility he has.
- 457. The Style of the Code of the Tsar Aleksei Mikhailovich of blessed Memory, is for the most part clear, simple and concise; you read with pleasure the Extracts which are occasionally made; no body will misinterpret what he reads; the words in it are comprehensive even by the most moderate Understanding.
- 458. Laws are made for the whole People, the whole People must act according to them, consequently it is necessary that the whole People should understand them.
- 459. All poetical, pompous, or bombast Expressions must be avoided; and in drawing up the laws, not one superfluous word should be added, in order that the thing established by the Law may be easily comprehended.
- 460. Care also must be taken that among the Laws, there be none which are insufficient to attain the End proposed; such as abound in Words but are deficient in Sense, which are intrinsically trivial and apparently important by the Style.
- 461. Laws which pronounce Actions belonging neither to Virtue nor Vice as indispensably necessary, are liable to this Impropriety, that they make us on the contrary esteem Actions which are absolutely necessary, to be unnecessary.
- 462. Laws of Fines and Amerciements which assign the exact pecuniary punishment to be inflicted for a Crime, should be revised at least every fifty Years; because the Fine which is judged sufficient at one time, is reckoned as nothing at another; for the Value of Money changes in proportion to the Quantity: there was such a Mad fellow once at Rome who gave everyone he met a Box in the Ear, at the same time paying them 25 Copecks a piece, that is the pecuniary fine prescribed by the Law.
- 463. Sundry Articles which require Elucidation.
- 464. 1st, The Crime of High Treason.
- 465. Under this Denomination are understood all Crimes which are contrary to the safety of the Sovereign and of the State.
- 466. All Laws should be composed in a clear and concise Style; but there is none in which this perspicuity is more necessary for the Security of the Citizens, than the Laws which regard the Crime of High Treason.
- 467. The Liberty of the Subject in general is endangered by nothing so much a by legal Accusations and oblique Insinuations; how much greater then would be the danger if this so important Article should remain obscure! for the Liberty of the Subject depends principally upon the perspicuity of Criminal Laws.
- 468. And Criminal Laws should not be confounded with those which establish the Order of judicial procedure.
- 469. If the Crime of High Treason is defined in the Laws by indeterminate Words, Evil practices will arise thence in abundance.
- 470. The Chinese Laws for Example adjudge, that whoso shews not respect to the Sovereign shall be punished with Death; but as they do not determine what that want of Respect is, any handle may be made to take away the Life of any one they pleased, and to extirpate any Family they may think proper. Two Men who were appointed to write the Court Gazettes, in describing some trivial Matter, mentioned Circumstances which were not true. Now to lie in the Court Newspapers was interpreted as want of proper Respect to the Court; for which reason they were both put to Death. A certain Prince heedlessly put some kind of Mark upon a Representation of a Case signed by the Emperor. It was inferred hence that he shewed Contumacy to the Emperor. And this caused his whole Family to be horribly prosecuted.
- 471. To term an Action a Crime of High Treason which has no such tendency, is an Evil practice of the most oppressive Nature. A Law of the Roman Caesars punished those who doubted of the Merits and Services of People who were elected by them to any Post whatever, as they did sacrilegious People, that is with Death.
- 472. Another Law declared the Coiners of false money guilty of High Treason. But they are only Robbers of the State: thus it is, that different Ideas of things are confounded together.
- 473. To give the name of High Treason to any other Crime is only diminishing the Terror which is connected with the Crime of High Treason.
- 474. A Praetor once wrote to the Roman Emperor that Preparations were making to try a Judge as guilty of high Treason for passing a Sentence contrary to his Laws: to whom the Emperor answered, that direct and not indirect Crimes of high Treason were admitted to be tried as such in his Dominions.
- 475. Again, among the Roman laws was one which ordered a Person to be punished as guilty of high Treason who threw any thing against the Statutes of the Emperors, though inadvertently.
- 476. A Law in England deemed all those guilty of Treason in the highest degree who foretold the Death of the King. In the King’s Illness
THE GRAND INSTRUCTIONS... [The Macartney-Dukes Text] 503 the Physicians dared not declare what ailed him. It is to be supposed that they acted in the same manner also in the Cure.
- 477. A Man dreamt he had killed the Sovereign. This Sovereign ordered him to be put to Death, saying he would not have dreamt this by Night had he not thought of it by Day. This was excessive Tyranny, for supposing he had thought of it, he had not yet proceeded to put this Thoughts in Execution. Laws should punish none but overt Acts.
- 478. When various Crimes of high Treason were introduced, it became absolutely necessary to distinguish and measure the degree of those Crimes, till it was brought so far at last, that no Crimes were esteemed as such, but those which included a design against the Life and Safety of the Sovereign, or Treason against the State and the like; and for which were inflicted the most rigorous Punishments.
- 479. Such Crimes as these do not happen every day; many People may remark them; a False Accusation in such Cases may easily be cleared up.
- 480. Words connected with an Action bear the Nature of that Action; thus for Example a Man coming into a public Assembly to move the Subjects to Rebellion will be guilty of High Treason, because his words are connected with the Action, and bear the Nature of it; in this Case he is not punished for the Words, but for the Act itself in which the words were used. Words are never construed into a Crime of high Treason, unless they prepare for, are connected with, or follow an unlawful Action. Whoso interprets words into a Capital Crime, perverts and overthrows every thing; for Words must be accounted only as the Index of a Crime worthy of Death.
- 481. The Crime of High Treason never depends so much upon the Explanation and Will of another as when it is founded upon words; Discourse is so much liable to misconstruction, the difference is so great between Intemperance of the tongue and Wickedness of the Heart, and the distinction so small between Words used through Inadvertency and Evil design, that the Law can in no wise expose words to capital Punishment; at least not without exacdy pointing out the Words which are liable thereto.
- 482. So that Words do not Constitute a thing belonging to a Crime; often they signify nothing in themselves, but according to the Tone with which they are uttered; People often in reciting the very Words of others do not give them the same Meaning. This Meaning depends upon a Chain which connects it with other things: sometimes
Silence expresses more than any Language. Nothing includes so much Ambiguity as all these things: how then can a Crime so atrocious as that of High Treason be made out of them, and Words punished like Actions themselves? I mean not hereby to diminish the abhorrence which every one must have for those who desire to sully the Glory of their Sovereign; but I must say that in these Cases a simple Chastisement is more proper than an Accusation of High Treason which is always terrible even to Innocence itself.
- 483. Writings are more permanent than Words, but they even, when not directly tending to High Treason, cannot be comprehended under the Denomination of that Crime.
- 484. Satirical Writings are prohibited in Absolute States; but they are rather an object of Civil Policy than a Crime; and therefore great Caution should be used not to extend the Examination of these Matters too far, under pretence that the Minds of People are aggrieved by the Sting of these Writings; Because such Researches only produce Ignorance, destroy the Gifts of the human Mind, and damp the Inclination to write.
- 485. Slanders must be punished.
- 486. In many States the Law directs that whoso hears of a Conspiracy, though he be not an Accomplice in it, shall be obliged to declare it on pain of Death. It is very necessary to use this Law in its utmost Rigour, in a Crime of the highest degree of Treason.
- 487. And it is of great Importance not to confound the several degrees of this Crime.
- 488. 2nd. Of Courts appointed upon special Occasions.
- 489. It is a thing quite useless to Sovereigns in Absolute Governments to appoint sometimes particular Judges to try any one of their Subjects. Those Judges must be exceedingly virtuous not to think that they can always justify themselves by their Orders, by the pretence of some secret political Advantage, by the Choice made of their Persons, and by their own Influence: so little utility arises from these special Courts, that it is not worth the while to alter the ordinary forms of Trial for that purpose.
- 490. Besides, this may produce bad practices very pernicious to the Security of the Citizens; an Instance hereof is hereto annexed. In England during the Reigns of many Kings, Members of the House of Lords were tried by Judges authorized from among the Members of that House; by which means they condemned to Death whom they would of the House of Lords.
- 491. Among ourselves, the Trial of a Cause by special Courts with the Opinions of the Judges thereon have often been confounded with the Decision of the same Cause by Law.
- 492. Though there is a great difference between collecting the Circumstances of a Cause, and giving Opinion upon, or Judging that Cause.
- 493. 3rd. Very important and necessary Rules.
- 494. In so vast an Empire which extends its Dominion over such a Variety of People, the prohibiting, or not tolerating their respective Religions would be an Evil very detrimental to the Peace and Security of its Subjects.
- 495. And truly, there is no other Method than a wise Toleration of such other Religions as are not repugnant to our own Orthodox Faith and Policy, by which all these wandering Sheep may be reconducted to the true Flock of the Faithful.
- 496. Persecution incenses the human Mind; but permitting each to believe the Tenets of his own Doctrine, softens even the most obdurate Hearts, and keeps them from implacable Obstinacy, quenching those Contentions which are contrary to the Peace of Government and to the Unity of the Citizens.
- 497. Cases of Magic and Heresy must be examined with extreme Caution; an Accusation of these Crimes may gready injure the Peace, Liberty and Welfare of the Citizens, and be even the Source of innumerable Torments, if bounds are not fixed to it by Law; for as this Accusation regards not directly the Actions of the Subject, but the Idea which the People entertain of his Character, it becomes more dangerous in proportion to the greater Ignorance of the People: and the Subject also will be in Danger because, though his Conduct in Life be ever so good, his Morals most pure, and though he fulfil all the Duties of a Good Citizen, yet this will not screen him from the Suspicious of such Crimes.
- 498. The reigning Greek Emperor Emanual Comine was informed that a Protestant had a design against him, and that he made use of certain magic Arts which render people invisible, in order to put his Design in Execution.
- 499. They write in the History of the Royal City, that when it was discovered how Miracles had ceased by reason of the Magic of a certain Man, the Magician and his Son were condemned to Death, upon what a Number of different things this Crime depended and which it was necessary the Judge should examine into. 1st That Miracles had ceased, 2nd That this working of Miracles was abolished by Magic, 3rd That Magic could abolish Miracles, 4th That the Man was really a Magician, and in fine 5 th That he did effect this magic Work.
- 500. The Emperor Theodore Laskar imputed his Illness to Incantation: the Person received thereof had no other Means to save himself, than to touch a red hot Iron with his hands without burning them: thus to discover a Crime the most uncertain in the World, they used Experiments equally uncertain.
- 501. 4th. How can it be discovered when a State approaches to its decline and final Ruin?
- 502. The Destruction of every Government generally begins with the Destruction of its fundamental Principles.
- 503. The fundamental Principles of Government are impaired not only when their Impression (stampt on the Minds of the People, and which ascertains what may be called Constitutional Subordination prescribed by Law) begins to be effaced, but also when the Notion of Equality proceeding to Extremes roots itself in the Mind, and when every one is desirous to equal those who are constituted their Superiors by Law.
- 504. Disrespect to the Sovereign, to the Magistracies, and to Superiors, Irreverence to Age, Parents or Lords, are evident Marks that the State thus undermined must fall by insensible degrees.
- 505. When the fundamental Principle of Government is impaired, then it is, that its received Maxims are called Rigour or Severity; its Regulation, Constraint; and what was before Concern for the Public Good, is now termed Fear; the Property of Individuals before constituted the Treasure of the Public, but now the public Treasury becomes a prey to Individuals, and Patriotism no longer exists.
- 506. To preserve the fundamental Principles of Government uninjured, it is necessary to support the State on its present Greatness, and this State approaches to its destruction, when the Fundamental Principles thereof are changed.
- 507. The State may be destroyed by two Causes, first when the Laws are not executed, and secondly when they are so bad that they themselves are destructive; for then the Evil is incurable, because the Poison is contained in the very Remedy.
- 508. A State may be also changed by two Ways. Either by reforming its Constitution, or by suffering it to decline; if the fundamental Principles of the State are observed and the Constitution is changed, it
THE GRAND INSTRUCTIONS... [The Macartney-Dukes Text] 507 reforms; but when on a Change of the Constitution these fundamental Principles are neglected, then the State comes to destruction.
- 509. The more Punishments increase, the greater Danger threatens the State; for Punishments increase in proportion to the Corruption of Manners, which likewise produces the Ruin of States.
- 510. What overthrew the Power of the Tribes of Tsin and Sung? says a certain Chinese Writer, the Cause was this: “Those Rulers not satisfied with the principal Inspection into Affairs peculiar only to a Sovereign, thought fit moreover to direct every thing immediately; and descended into all those Matters which appertain to the several Established Magistracies”.
- 511. Again, Despotism is destroyed when the Sovereign imagines he shall more shew his power by altering, than by adhering to the Order of things; And when he suffers himself to be guided more by Caprice, than by his good Intentions from which all Laws have flowed, and still do flow.
- 512. It is true, there are Cases in which Power may and ought to be exerted in its full Sway, without any risk to the State, but on the Contrary, there are also others in which it must be exerted under Limits fixed to, and by itself.
- 513. The greatest Art of Government is to distinguish exactly what degree of Power should be exerted in different Circumstances; for in absolute States the happiness of Government partly consists in ruling with Mildness and Condescension.
- 514. In excellent Machines, the Art is to employ as few Movements, Forces and Wheels as possible; this Maxim will hold good likewise in Government, for the most simple Means are generally the best; while complicated are generally the worst.
- 515. There is a certain Facility in governing, it is best that Encouragement come from the Sovereign, and Threats from the Laws.
- 516. Very unskilful in his Business is that Minister who is always saying that his Sovereign will be angry, that he is suddenly resolved, and that he will use his own power in such and such an affair.
- 517. Farther, it would be a great unhappiness is a Government is no one should dare to represent his apprehension about any future Event, nor apologize for his Ill-Success which may arise from the Obstinacy of Fortune. Nor freely speak his Sentiments.
- 518. But it will be asked, when must Punishment take place and when not? This is a thing which can be better conceived than prescribed. When Mercy is liable to certain Dangers, these Dangers are very apparent; Mercy can easily be distinguished from that Weakness which leads a Sovereign to overlook Punishment, and into a Situation that he cannot himself distinguish whom he should punish.
- 519. True it is, an Opinion of the Glory and Power of a Sovereign may increase the force of his Dominions; but it will be equally augmented by an Opinion of his Justice.
- 520. Truths like these cannot be pleasing to Flatterers who are daily telling all the Princes upon Earth that their People are created for them alone: but We think and esteem it a Glory to ourselves to say that We are created for our People; and that for this reason We are obliged to speak of Matters as they ought to be spoken of; for God forbid, that after finishing this Legislation, there should be a People more just, and of Course more flourishing upon Earth. Otherwise the Intention of our Laws would not be fulfilled, A Misfortune which I would not live to see.
- 521. All the Examples and different Manners and Customs of People, which are quoted in this Treatise, are only intended to contribute to the Choice of those Means, whereby the Russians may be rendered a People the most happy possible of Mankind.
- 522. And now it only remains that the Assembly regulate the peculiarities of each part of the Laws by the Rules laid down in these Instructions.
523. Some People in reading this Treatise perhaps may say that every one cannot comprehend it; to which it is easily replied, True, not every one will comprehend it reading it once slightly over; but they will if they read it diligendy, and take the Cases which occur in it for a Guide of their Reflections: these Instructions must be frequently conned, that they may become familiar, and then every one may be firmly persuaded he will understand them; for  Carefulness and Diligence overcome all things; while Idleness and Carelessness estrange People from all Good.  But in order to render this difficult Business more easy, these Instructions for composing a Plan of a New Code of Law, especially the Chapters and Articles delivered to particular Persons, must be read once at the beginning of every Month till the Committee is dissolved in the Assembly for Composing the Plan of a New Code of Laws, and in all the particular Chanceries dependant thereon.
526. But as nothing is perfect which is done by Man, if in the Execution some Establishments occur for which Principles are not laid down on these Instructions, The Assembly is permitted to represent the same to us, and request them to be supplied. The Original Signed by Her Imperial Majesty’s own hand thus,
Moscow, 30 July. 1767.
Printed at the Senate.
TO THE GRAND
- 527. On Good Order, otherwise called Police.
- 528. By the name police is often meant general order in the state.
- 529. We shall explain in this chapter, what We mean here by the name police;
- 530. Everything concerns it, which seems to preserve good order in society.
- 531. The regulations of this department are of a completely different kind from other civil laws;
- 532. There are some criminals, who are punished;
- 533. There are others, who are only corrected.
- 534. The first are subject to the force of the law, the others to its authority; the former are withdrawn from society, the latter on the contrary are obliged to live in society according to its instituted rules.
- 535. Matters pertaining to good order are those which may occur at any time, and which are usually of a petty nature: and so there should not be protracted legal formalities.
- 536. The Police is perpetually occupied by details or trifles: therefore cases which demand lengthy investigation are not suitable for the scrutiny and analysis of this institution. In many places after a fixed number of days cases are sent to the appropriate judicial offices.
- 537. The operations of the police must not be slow; and they are put into effect with matters which recur daily. And great punishments are not appropriate here; and great examples are not made for this institution.
- 538. It needs regulations, rather than laws.
- 539. The people who are employed by it are always under the eye of the town authorities; and wise rules about good order hinder them from falling into great crimes.
- 540. Thus great violations of the laws must not be confused with simple violation of the rules of good order: these matters must not be put in the same class.
- 541. Therefore it follows, for example, that the action of a certain Sultan, who ordered a baker caught for fraud to be impaled, was the action of a tyrant who did not know how to be just except by overstepping the limit of justice itself.
- 542. It is very necessary that those instances where there should be punishment should be distinguished from those where there should be correction.
- 543. It is not enough to recognise disorders, and to think of ways of preventing them; it is necessary in addition to watch with ever open eyes that these ways are actually employed in appropriate instances.
- 544. And this is the part of the problem whose solution is put forward here which is completely neglected in many lands; however without it the other parts of the chain, if it can be so called, which constitutes the government of the whole state, will become disordered.
- 545. With the regulations of this department it has occurred similarly with the number of houses forming a city, for which a land plan has not been made before it was begun. In such a city, when it begins to be built, everybody occupies the place which has pleased him best, not taking the slightest notice of the correctness or the size of the place occupied by him; and so a heap of buildings is formed, which whole centuries of effort and diligent attention can barely bring into correct order. To such confusion are also subject the laws for the preservation of good order.
- 546. The number of such enactments has necessarily grown: but to put them into order in such a way that they may always be carried out in the appropriate manner without any difficulties, this itself will be an art in the rationalisation of this branch of the laws.
- 547. These enactments are divided into two kinds.
- 548. The first comprises urban policy.
- 549. The second rural police.
- 550. This last will differ from the other in object and area.
- 551. In these divisions there must be care about the following.
- 552. (1) That nothing must be allowed which could interfere with the performance of Divine service in the places assigned to it, and that order and decent conduct be observed during processions with the Cross and such like ceremonies.
- 553. (2) Purity or morals is the second object of the preservation of good order, and it consists of everything necessary for the curtailment of luxury, the avoidance of drunkenness, the eradication of forbidden games, the firm regulation of public baths or washhouses and spectacles, so that the license of people who lead a bad life may be restrained, and so that so-called magicians, fortune-tellers, prophets and similar impostors who lead the people astray may be driven from society.
- 554. (3) Health is the third object of police, and obliges it to stretch its concern to the purity of the air, the cleanliness of the roads, rivers, wells and other sources of water, the quality of foods and drinks, finally the diseases epidemic and contagious.
- 555. (4) Concern for the conservation of all kinds of grain, even before they are harvested, care of cattle, meadows for their pasturage, fishing, and so on. General regulations must be prescribed about these matters according to the circumstances, as well as the precautions necessary for the future.
- 556. (5) The security and the solidity of buildings, and the rules to be observed in this instance by the various craftsmen and workers on whom the solidity of the building depends; the upkeep of the roads; the decoration and adornment of towns; free movement on foot and horseback in the roads; public transport; inns and so on.
- 557. (6) Public tranquillity demands that sudden accidents and other occurrences such as fires, robberies and so on should be forestalled. And so for the preservation of such tranquillity certain rules are prescribed, for example, to extinguish fires at fixed times; to close the gates of houses; to force vagabonds and nondescript people to work, or to drive them from the town. Those who do not have the right and so on are forbidden to bear arms. Illicit assemblies or meetings are prohibited, as are the delivery and distribution of seditious or inflammatory writings. At the end of the day, the attempt is made to observe tranquillity and security in the towns and at night, the streets are illuminated and so on.
- 558. (7) True and identical weights and measures are set up, and all frauds prevented.
- 559. (8) Hired servants and day workers are also a matter for this department, both their upkeep in their work, and their reception of the proper payment from those who hire them.
- 560. (9) Finally, the poor, and above all the sick poor attract the attention of this department, firstly because it forces beggars to work if they have their own hands and feet, and also to give regular food and medical care to the infirm poor.
- 561. As the establishment of this department, like its intention and aim, is good order and conduct in the life of citizens in general, it is evident that every member of society, of whatever rank and condition, must be its dependent.
- 562. Where the limits of the police power finish, there begins the power of civil jurisdiction.
- 563. For example, the police arrests a thief or criminal; it interrogates him; however it entrusts the prosecution of his case to the appropriate court.
- 564. From all the foregoing it appears, that it is not for this department to inflict on people have punishments; it is enough for the restraint of individuals and the maintenance of order in those matters entrusted to it, that its punishments should consist of corrections, monetary fines and other punishments, which bring shame and infamy on those who behave badly and dissolutely, and preserve respect for this department of government and the obedience to it of all other citizens.
- 565. In the courts it is a rule, not to pass judgment on matters, other than those presented to it in the proper manner.
- 566. On the contrary the police uncovers crimes, leaving it to other departments to judge cases such as those it sends them.
The original signed by her Imperial Majesty’s own hand thus:
28 February 1768 St. Petersburgh Printed at the Senate.
TO THE GRAND
- 567. On the Expenses, Revenues and on their State Administration, that is on the State Economy, otherwise called the Administration of Finances.
- 568. Every man must say to himself: I am a man; I do not consider anything alien to me which man has undergone.
- 569. And so (1) man must not and cannot ever be forgotten.
- 570. (2) Little in the world is done by man, that is not for man, and all things are mostly done by him.
- 571. The first of these two last propositions deserves to demand every possible notice and attention.
- 572. The second — much gratitude and sincere good-will to those who labour.
- 573. A man, whoever he is, proprietor or cultivator; handicraftsman or trader; an idle consumer or one who gives him the means for it through diligence and care; the governor or the governed; he is still a man: this word alone already gives a complete idea of all needs and of all means of their satisfaction.
- 574. How much greater are the needs of the large number of people joined together as a community in the state.
- 575. Here are what are called state needs, from which are used up state expenses, and which consist of the following.
- 576. The preservation of the integrity of the state (1) By the maintenance of defence, that is of land and sea forces, fortresses, artillery and everything thereunto appertaining.
- 577. (2) By the observance of internal order, tranquillity and security for everybody in particular and all in general; by the maintenance of people for the execution of justice, good order and supervision of the various institutions serving the general good.
- 578. (3) By enterprises conducive to the general good. These include the construction of towns, of roads and canals, the cleaning of rivers, the foundation of schools and hospitals, and the coundess number of other objects, which the brevity of this work does not allow to describe in detail.
- 579. (4) Decency demands, that abundance and magnificence should surround the throne, source of beneficence for the whole of society, form which flow rewards, encouragements and favours. For all this expenses are necessary and useful.
- 580. After this short description of the expenses of the state, it is necessary to talk of the revenues and of the means by which their collection is made bearable.
- 581. Taxes are, as indicated above, the tribute which each citizen pays for the preservation of his own well-being, tranquillity, life and property.
- 582. But (1) on which objects should taxes be imposed?
- 583. (2) How are they to be made least burdensome to the people?
- 584. (3) How is the expense of their collection to be reduced?
- 585. (4) How are the revenues to be assured?
- 586. (5) How are they to be administered?
- 587. These are the questions, which must be answered, although it is very difficult to do so.
- 588. As to (1) there are five objects on which impositions are generally laid: (a) persons, (b) estates, (c) domestic produce consumed by people (d) goods exported and imported, (e) [legal] deeds.
- 589. As to (2) The least burdensome taxes are considered to be those that are voluntary and exempt from constraint, which also concern all the inhabitants of the state in general, and which are augmented in proportion to the luxury of each individual.
- 590. But to make, as much as possible, the weight of the impositions felt less by the subjects, it is necessary to preserve as a permanent rule, to avoid monopolies in all cases, that is not to give to any one the trade in this or that exclusive of everybody else.
- 591. As to (3) The diminution of expenses during collection demands a detailed consideration of trifles, and of the exclusion from their number of everything which sometimes causes unnecessary expenses.
- 592. As to (4) The more the people prospers, the more certainly it will be in a position to pay.
- 593. It may be observed here, that in general there are taxes which by their nature are subject to many difficulties and certain inconveniences, for the elimination of which ways must be found; there are others which, if the expenses incurred in their collection are subtracted, are extremely unimportant.
- 594. It is also necessary to investigate, why are there arrears in certain places?
- 595. Is it because less money circulates there than in other places?
- 596. Or because the export of surpluses is burdensome;
- 597. Or because there is not enough there of arts and crafts;
- 598. Or because the people there has insufficient means for their enrichment;
- 599. Or does it come from laziness, or from oppression greater than elsewhere?
- 600. We must now turn to (50 which speaks of the state’s administration of taxes, or the economy, which is otherwise called the administration of finances. But We comprehend all this under the heading of the state economy.
- 601. It has been pointed out above that there are five objects of revenue: but impositions in a state are like sails on a ship, for her safe course and arrival at the intended port by the intended route, and not for weighing her down increasingly as she floats along the waves, until she finally plunges into the abyss.
- 602. Whoever considers the economy of the state by money alone, sees only its final issue, and does not understand its basic principles. But he who examines carefully all the aspects of this area, and penetrates into its interior, will seek out both its main foundations and the ways and means of operation which are most necessary for the government.
- 603. What are the main foundations, which maintain the economy through their strength? Without a doubt, nothing but people.
- 604. From which it follows, that it is necessary (1) to encourage the increase of the people, so that there is a great number of people in the state.
- 605. (2) to use them to advantage according to the number of people and the extent of the lands; to facilitate and assist the various arts and professions in proportion to their different degrees of necessity and usefulness.
- 606. Here agriculture itself takes the first place. Because it alone nourishes people, it may bring them into such a condition, that they possess everything else. Without agriculture, there will not be the prime materials for crafts and trades.
- 607. It is the duty of the economy to find out ways of encouraging landlords
- (1) to make use of the goodness of lands of all kinds, whatever value they have and whatever produce they yield.
- (2) to try to cultivate and increase the fruits, woods, trees and all other plants which cover the face of the earth.
- (3) to multiply animals of all kinds and aspects creeping on the earth and flying in the air, which serve to improve the land and receive food from it in a reciprocal manner.
- (4) to exploit for their own benefit the metals or ores, salts, stones and other materials concealed within the earth and dug out from its bowels by our labour.
- (5) and so with the fish and everything in general which is to be found in water.
- 608. There is the foundation and root of commerce. Through commerce all these things are brought into circulation within the state, or are exported into other countries.
- 609. Internal commerce cannot properly be so called; it is nothing more than simple circulation.
- 610. True commerce is that, by means of which the state acquires for itself from other lands necessary things, which it does not possess itself, and sends its surpluses beyond its limits.
- 611. But the export and import of goods are subject to different laws according to the difference of their object.
- 612. External commerce is not always the same.
- 613. Commerce which is well arranged and diligently conducted animates everything and supports everything: if it is external, and the balance is favourable to us; if it is internal, and the circulation meets no obstacles or shackles restricting it; then in both instances it must bring a general and permanent abundance to the people.
- 614. Whence are born riches; which are (1) natural or acquired;
- 615. (2) real or imaginary.
- 616. Among natural riches may be put the native wit of the inhabitants which, having received enlightenment, and being animated and elevated by zeal, might extend itself far, and by its great successes bring no small profit to the state and private people.
- 617. Lands, properly tested and diligently cultivated, will give a rich harvest and plentiful sufficiency of all sorts of things necessary, useful and agreeable.
- 618. Acquired riches are those which arise when zeal and diligence are dominant in trades, manufactures, arts and sciences.
- 619. Encouragement greatly assists further and more complete knowledge and production in all these.
- 620. As acquired riches one must also consider as interior: the convenience of canals, cut especially for water movement, in places which would otherwise be inaccessible to ships; as exterior: the spread of commerce by sea and its growth on land, its facilitation and production by the construction, repair and maintenance in good repair and permanence of main roads, bridges and ferries.
- 621. The number of things which are relevant here is so great that only the most important of them can be indicated; and even these are always by necessity and different circumstances subject to change. However, it will suffice to give an idea of what We understand by the name state economy. The rest must be left for the consideration of those, who will apply themselves to the execution of this important area, so that they might penetrate into its depths.
- 622. Some riches in the state are real, others are imaginary.
- 623. The real ones are either immovable or movable.
- 624. They belong either to the Sovereign, or to a private individual.
- 625. The riches of the Sovereign are either simply proprietary, likewise certain lands or other things belong to him as a particular private landlord or master; or as the riches of the Autocrat, holding sway by this God-given title over everything which comprises the public treasure.
- 626. The riches of private people are those which they possess as citizens, whose property is the foundation of the actual wealth of the State in two ways: (1) by produce of every kind, put by them into commerce and circulation; (2) by the impositions, which the private individual cannot pay otherwise, than by means of the self-same produce.
- 627. Real riches, which consist of the revenues, are either constant or occasional; and they belong, as do the lands, either to the Sovereign or to a private individual.
- 628. The revenues which belong to the Sovereign are likewise of two kinds: they are his either as particular private landlord, or as head of state.
- 629. The Sovereign possesses the first in his own right.
- 630. But as Autocrat, he counts: (1) all the revenues of state property in its entirety; (2) impositions on the property of others.
- 631. A wise Autocrat never increases this last revenue without the greatest regret, and if he does so he watches carefully to see that the arrangement of the impositions is effected in proportion to the resources of the subjects, so that it does not exceed the measure of their ability from the point of view of possessions, and so that it does not burden the citizens more than they can naturally support or can be in justice demanded from them.
- 632. In the collection of taxes, the greatest exactness, moderation and humanity should be observed.
- 633. Let us point out here that gold and silver, which are alternately both commodities and the symbols of whatever may be used in exchange, are acquired either from mines or Commerce.
- 634. Gold and silver may be considered either as primary material or as a thing manufactured.
- 635. Goods and all movable property are often the object of internal circulation, and of the commerce carried on with foreign states.
- 636. And in this case, particularly in the latter, it is very necessary to find out, whether the primary material and the completed manufacture together, or just one of them, is produced by our people.
- 637. Real riches may be prodigiously multiplied by those which are imaginary.
- 638. The latter are based on credit or trust, that is on the opinion which has been received and accepted, that payment is assured, and that means for payment are sufficient.
- 639. Credit or trust may be either that of the whole people, which is to be seen in banks and in the circulation of certain things which have been accredited by the good regulations of the government; or the trust of private individuals, either separately or together.
- 640. Separately, they may by their integrity, honourable conduct and far-sighted aims become the bankers not only of one state, but even of the whole world.
- 641. Together, they may unite in large or small assemblies in commercial companies; and then personal credit augments the public credit.
- 642. But the advantages of natural and acquired riches, real and imaginary are not confined within the limit of the present time; they stretch into the future as well, preparing the necessary means for the augmentation of the revenues, which also form a branch of the State economy.
- 643. These means are like credit; sensible use increases them, and abuse eliminates them.
- 644. It is not good either to be entirely ignorant of these means or to have constant recourse to them. They must be sought as if they could not be dispensed with; they must not on the other hand be used, except in actual necessity; and they must be used sparingly, with as much care as if it would not be possible to find other new ones in the future.
- 645. And to this prudent management we are led by the true main foundations of the state economy.
- 646. The general state economy is divided into the political and the domestic.
- 647. The political embraces the entirety of the people and things, the consideration of the situation, rank and employment of all people.
- 648. The entirety of things demands a good knowledge of them all in particular and in general, so that the relations between them might be judged, and all of them together be made useful for society.
- 649. Domestic economy has the following objects. With regard to the main foundations of the economy, its sources must be preserved unharmed, and they must be made more abundant if possible, and used without reducing them to penury or exhausting them.
- 650. With respect to riches, it is necessary to keep the lands in good condition and to try to improve them;
- 651. To defend rights, to collect revenues in such a manner that nothing is lost, which should go into the State exchequer.
- 652. And during expenditure, every part of the revenues should be used for the designated purpose.
- 653. So that total expenditures should not exceed revenues.
- 654. And so that the accounts might always be in order and attested by clear proofs.
- 655. From the whole of what has been said by Me here about the state economy it is evident, that the simplest and most natural division, the collection and connection of concepts clear and common to everybody lead to the straight forward definition of that word which is so important for every society; that in this chapter all parts go in to each other because of the excellent relationship between them; that there is not one of them, which does not depend on the others; and that only the assembly of all these parts can establish, strengthen and perpetuate for ever the security of the State, the prosperity of the people and the glory of the Autocrat.
The original signed by Her Imperial Majesty’s own hand thus:
8 April 1768
Printed at the Senate.
ПЕЧАТНЫЕ ИЗДАНИЯ «Наказа» императрицы
«Наказ» императрицы Екатерины II, или по-французски: Instruction, был призван служить руководством для депутатом Комиссии, собравшейся в Москве 30 июля 1767 года для обсуждения способов совершенствования российского законодательства. Он не создавался для того, чтобы служить кодексом законов, который должны были депутаты принять.
Текст «Наказа, данного Комиссии о сочинении проекта нового Уложения» быстро распространился по Европе. Из 36 изданий (не считая настоящего), опубликованных на девяти языках со времени появления «Наказа», 25 появилось в период между 1767 и 1797 годами. В 1771 году французское правительство запретило распространение в стране двух тысяч экземпляров, привезенных сюда. Факт весьма примечательный, если иметь в виду, что содержание «Наказа» было составлено в значительной степени из идей французских философов-просветителей. Позднее император Павел I запретил его хождение в России. Однако выдающийся философ-просветитель и корреспондент Екатерины Вольтер приветствовал «Наказ» самыми возвышенными словами в своем письме к императрице. Личная библиотека Вольтера, купленная Екатериной II после его смерти и хранящаяся в настоящее время в Российской Национальной библиотеке в Санкт-Петербурге, содержит экземпляр амстердамского издания «Наказа» 1771 года.
Приводимая ниже библиография печатных изданий «Наказа» требует некоторых комментарий. Первое и второе издания «Наказа», вышедшие в свет в 1767 году, состояли из двадцати глав, последние две главы были по отдельности напечатаны в
1768 году. Третье издание, появившееся в Санкт-Петербурге в 1768 году, впервые включило в себя весь «Наказ» — двадцать две главы. Он продавался по цене в 50 копеек.
Наиболее ценное и самое редкое из всех изданий «Наказа» — это замечательное четырехязычное издание 1770 года, которое является шедевром среди печатных изданий восемнадцатого столетия. Текст «Наказа» опубликован в нем параллельными колонками сразу на четырех языках: русском, латинском, немецком и французском. В начале книги имеются четыре титульные страницы на каждом из указанных четырех языках. Первая буква каждой главы искусно вырисована красивым рисунком в стиле того времени. В верхней части первых двух страниц и внизу последних двух страниц книги напечатаны аллегорические гравюры, нарисованные Якобом Штелиным и изготовленные немецким мастером К. М. Ротом (С. М. Roth), жившим тогда в Петербурге. Перевод на латинский язык был выполнен секретарем Екатерины II и ее тогдашним фаворитом Григорием Козицким. Переводчики на французский и немецкий языки не установлены. Известно только, что французский и немецкий тексты с изданий 1769 и 1767 годов были использованы в четырехязыч-ном издании 1770 года. Библиограф А. Черткова полагала, что перевод на немецкий язык был осуществлен Миллером, Гр. Ми-нихом и Клингштедом.
Русские библиографы указывают, что «Наказ» 1770 года издания высоко оценивается русскими библиофилами. Екатерина II дарила экземпляры своего произведения многим своим современникам из различных европейских стран. Один из таких экземпляров, сопровождаемый письмом к графу Честерфилду на французском языке, написанным императрицей собственноручно, хранится в библиотеке Гарвардской школы права в США.
Четырехязычное издание «Наказа» 1770 года вышло по всей видимости большим тиражом. По сведениям библиографа Сопи-кова, академический комитет располагал в 1808 году 1421 экземпляром данной книги и готов был продать их все по цене 4 рубля (пять копеек за пуд). Неизвестно, проданы они были или нет, но в 1861 году один экземпляр «Наказа» был продан на аукционе в Санкт-Петербурге за пять рублей.
Из последующих изданий «Наказа» следует отметить русско-греческое издание 1771 года как красиво исполненное: некраПечатные издания «Наказа» императрицы ЕКАТЕРИНЫ II 525 сивым это издание не могло быть — Екатерина II слыла защитницей греческих интересов.
В 1776 году русское издание «Наказа» было напечатано тиражом всего в 700 экземпляров. Первое издание «Наказа» 1767 года было перепечатано без указания места и года издания в 1796 или в 1797 году, что установлено по водяным знакам на бумаге специалистами Российской национальной библиотеки.
У. Э. БАТЛЕР
Перевод с английского: В. А. ТОМСИНОВА