THE MEN of the Enlightenment had no doubts about their political aims. With few hesitations and only marginal disagreements, they called for a social and political order that would be secular, reasonable, humane, pacific, open, and free, and their firm consensus gives sturdy support to the idea of a philosophic family, sometimes divided and contentious, but essentially united in its view of the world and perception of its ideals. It was different with political methods; as I shall show, the road to the realization of their political demands was difficult and devious, and often seemed impassable: the problems of politics were intractable and led the philosophes into agonizing perplexities. Yet, however divergent and difficult these problems turned out to be, the philosophes faced them with the same spirit and the same program; they agreed that it was essential to give humanitarianism organized form and effective force.
In their own day, the philosophes’ strident advocacy of their social and political ideals was widely publicized. Contemporaries did not agree on just what all this activity meant: detractors disparaged it as nothing more than a brash, noisy version of widespread and increasingly popular attitudes; admirers celebrated it as the philosophes’ signal merit, delighted in their propaganda in behalf of toleration, peace, legal reform, and the emancipation of slaves, and enjoyed retelling, over and over again, Voltaire’s splendidly disinterested behavior in the Calas case.
In a way, both detractors and admirers were right. As I have said, in the age of the Enlightenment the temper of civilized men was evolving from overt brutality toward sober self-restraint, shifting from violence to debate. But the philosophes were more than chips on a rising tide of humanitarianism: they were the perfectionist conscience of their day, propagandists for, if by no means the sole inventors of, the politics of decency.
SINCE THE PHILOSOPHES’ efforts at defending and disseminating humanity are so familiar and so diverse—there was so much to be humane about!—it is less important to catalogue their interventions than to discover their reasons. These reasons are implicit in their conviction that if anything will change man’s lot it is the scientific method (which is to say, their method) and in their passionate and hopeful observation of the social changes in their time. Montesquieu listing the rights of accused persons, Lessing advocating tolerance of Jews, Beccaria constructing a humane jurisprudence, Rousseau defending the claims of the child, Voltaire rehabilitating the victims of judicial miscarriage, Kant analyzing the preconditions for world peace, all were elaborating a single view of man and of politics—a single view of man in politics—which offers no surprises, since it follows with inescapable logic from their general way of thinking. Of course, Christians, both before and during their time, had been, and were, humane; they were far more humane, in fact, than it was comfortable for the Enlightenment to admit or even to believe. But theirs were different grounds.
The philosophy of the Enlightenment insisted on man’s essential autonomy: man is responsible to himself, to his own rational interests, to his self-development, and, by an inescapable extension, to the welfare of his fellow man. For the philosophes, man was not a sinner, at least not by nature; human nature—and this argument was subversive, in fact revolutionary, in their day—is by origin good, or at least neutral.1 Despite the undeniable power of man’s antisocial passions, therefore, the individual may hope for improvement through his own efforts—through education, participation in politics, activity in behalf of reform, but not through prayer. In consequence, the philosophes saw society no longer as a family of God’s children dependent on paternal direction and approval which must anxiously appease the divinity by maintaining uniformity of religious practice and fidelity of observance. In the older, tribal view, the blasphemer, the heretic, the unbeliever, the outsider of any description endangered the whole and had to be purged from a society he tainted by his very presence. The philosophes saw the offender not as a scourge or an enemy but as a victim, usually of society itself.
The most prominent casualty of this attack on tradition was the idea of hierarchy, the idea that society is divinely, eternally ordered in ranks. To be sure, few of the philosophes ventured to adopt a full-fledged democratic position in which hierarchies are purely functional and wholly temporary; but the preponderant political thought of the Enlightenment, a kind of snobbish liberalism, at least envisioned the possibility, and proclaimed the desirability, of a society open to talents, in which commoners, even from poor circumstances (especially if they were men of letters) might rise to positions of influence, wealth, and status. Reason, ability, even luck, rather than birth, were the criteria by which the philosophes wanted men to be judged in society.
The demand for the toleration of religious minorities, philosophical dissenters, and sexual deviants was the practical correlative of these propositions about man and society, reinforced by the philosophes’ characteristic view of philosophy—skeptical, empiricist, a little cynical, and heavily concentrated on social ethics. Montesquieu and Diderot, Wieland and Beccaria, Voltaire and Lessing all sound the same note, first sounded in the sixteenth and early seventeenth centuries by Montaigne and the Christian Stoics: to kill others for their ideas is to exaggerate the importance of ideas. Since men are all hopelessly ignorant of the ultimate mysteries shrouding the universe, it would be the utmost in barbarity and absurdity to constrain, let alone persecute, those who hold views divergent from the dominant one: certainty is the mother of intolerance, disdain for metaphysical construction is an inducement to toleration. The philosophes enlisted even their cynicism and their anticlericalism in the good cause: the man who shrugs his shoulders at the foolishness of the world or rails at the persecuting spirit of priests will never become a fanatical assassin of dissenters.
Since philosophy, for the philosophes, was constructive as well as critical, they had good humanitarian, ethical, and even religious reasons for toleration: it is distasteful to expose men to constraint, compel them to silence, or condemn them to death for their political, social, or religious opinions, since all men are brothers. As Lessing rather touchingly put it: “Little children, love one another,” a doctrine all the philosophes accepted—with some wry reservations, for there were many whom it was hard to love.
In fact, on the whole the philosophes found Schwärmerei highly suspect, and they based their demand for tolerance largely on practical grounds. “I’m an odd person, don’t you think, my dear Fritz?” Wieland wrote to friend. “But that’s how I am and, according to my philosophy I say, let everything be just as it may. What good is all the enormous mass of enthusiasm we have for one another, if we don’t learn to stand one another?”2 This was the point: men must learn to stand one another, and tolerance as embodied in institutions was a significant step in that direction. Since societies are not families or tribes but complex totalities composed of individuals, clans, groups, classes with diverse histories and conflicting interests, differences in opinions and behavior are to be expected and, indeed, encouraged: “If there were only one religion in England,” Voltaire noted in his famous report on the philosophes’ favorite country, “one would have to fear despotism; if there were two, they would cut each others’ throats; but they have thirty, and they live happy and in peace.”3 As the toleration of diversity seemed an indispensable prerequisite for the effective pursuit of knowledge—it is only open debate, even the spouting of error, that will permit the critical mind to operate and enable men at least to approach an acceptable philosophy of life—it seemed equally indispensable for politics: it uncovered injustices committed by entrenched powers, and, as Locke had already argued in his first Letter Concerning Toleration, far from fostering seditious factions it alone makes for social peace.
This line of reasoning thrust heavy responsibilities on the individual. It demanded rational conduct from citizen and government alike; within the state, it exacted the sublimation of hostility, and in the relation of states to one another, it substituted, for automatic mutual hostility, the ideal of a peaceful worldwide community in which the struggles among individual members take the form of debates over ideas and competition for markets. As the philosophes’ conception of man was (in the Enlightenment’s sense of that word) rationalist, their conception of the state was utilitarian: governing authorities and institutions justify themselves not by an appeal to religious or historical sanctions but by the effectiveness with which they perform their assigned task, which is to minimize pain and maximize pleasure.4 The philosophes’ revulsion against the traditional heroic code of aristocratic societies, a revulsion that placed Newton above Louis XIV and merchants above generals, splendidly complemented this shift toward service, decency, and peace.
The philosophes’ writings on peace—the extension of tolerance to the international stage—testifies to their struggle, on the whole successful, in behalf of humane realism against utopian fantasies. These writings are crowded with denunciations of war: war is, for the philosophes, the most devastating of disasters, which only irresponsible kings can initiate, fanatical priests can encourage, cruel soldiers can love, and the foolish rabble can admire. Diderot derided the military hero as a butcher who continues to flourish in modern culture only because the mob loves him. In a similar vein, Holbach insisted that war has remained an instrument of national policy simply because the military caste has retained its influence, and for no other—that is, for no good—reason. War, Lessing wrote a little picturesquely, drives away the muses: “Peace will return without them; a sad peace, accompanied by a single melancholy pleasure”—weeping over loss and destruction. The warrior-king covers his people “with laurels and with misery.” Glory is not worth the price: “What costs blood is not worth blood.”5 Voltaire veers between lamentation and analysis, with lamentation in command: priests bless the colors while hapless conscripts go to an unnecessary death; princes reap undeserved glory by devastating innocent provinces; patriotism is another word for mass murder; untutored soldiers are brutish simply because they are brutes, but their cultivated commanders are often quite as brutish, from vanity or from other, equally dubious, motives. Voltaire insists that war has many causes: superstition, greed, credulity, ambition, all powerful ingredients in human nature, all discreditable. Christian pacifists like the Quakers had argued and continued to argue that war was probable because men were not Christians; Voltaire, far more pessimistic, argued that war was probable precisely because they were. Montesquieu early and Condillac, Mably, Wieland, and others later in the eighteenth century return to this depressing theme again and again. Reading a report on the Isle de France, an island off Madagascar that the French had occupied, Diderot finds his humanity offended and his sensibilities outraged: “Ah! my friend,” he reported to his mistress in 1769, “tears came to my eyes a hundred times. Is this how you treat men? You have no idea what an intendant is really like, or a commander they send to these poor islanders; what a tribunal of justice is in a colony; what a businessman is. A businessman is a soul of bronze to whom the life of his fellow man means nothing, whose aim is to starve a whole country for the sake of getting a good profit for his wares.… The commander and the intendant are atrocious proconsuls, like those among the ancient Romans, sent to the provinces of the empire to desolate them, devastate them, and enrich themselves.”6 Clearly war and conquest were profitable—to some—but that did not commend them to the men of the Enlightenment.
Even those profits were at best problematical: most of the philosophes who addressed themselves to the phenomenon of militant imperialism found it not merely vicious, but stupid as well. Montesquieu, who shrewdly described conquerors as driven men, out of control and often self-destructive, exposed the baleful effects of warlike expansion on the ancient Romans; Raynal offered the same diagnosis for modern Europeans. Voltaire argued that for all its prominence in human affairs, war solves nothing: it spreads untold and unnecessary suffering, it perpetuates and in fact intensifies the very evils that pious preachers had promised it would solve. There were, to be sure, militant minority voices in the philosophic family: Adam Ferguson thought of war as a builder of morale and internal unity; Adam Smith extolled the martial virtues as manly virtues; and Rousseau had much good to say for passionate love of country. Yet even Ferguson thought that war was often nothing better than “rapine,”7 and that modern governments, having established a certain tranquillity at home, indulged their predatory impulses abroad: war itself “may be made the subject of traffic,” and “often human blood is, without any national animosity, bought and sold for bills of exchange.”8 While in itself war was not, for Ferguson, a corrupt institution, he acknowledged that it could often be corrupted. Adam Smith, studying the economic effects of war, sardonically noted that those who felt the war least enjoyed it most: “In great empires the people who live in the capital, and in the provinces remote from the scene of action, feel, many of them, scarce any inconveniency from the war; but enjoy, at their ease, the amusement of reading in the newspapers the exploits of their own fleets and armies,” and he drily suggested that if these spectators were made to pay for the war, they might make peace more speedily and undertake to make war less wantonly—hardly a passionate stand, but still a plea for peace.9 Rousseau, finally, sufficiently curbed his patriotism and his admiration for bellicose virility to decry military expansion and military conquest in language familiar to his fellow philosophes: “Whoever wants to be free,” he told the Poles, “should not wish to be a conqueror.”10 When Voltaire contemptuously lampooned the Anglo-French conflict over Canada as a quarrel over a few acres of snow, he was a bad prophet but a good philosophe.
Pacific as they were in their inclinations, the philosophes were not pacifists in the modern sense: they neither advocated resistance to war nor expressed confidence that war would ever disappear. Their analysis of the causes of war—economic rivalry, the inherently unstable state system, and the aggressive aspects of human nature—inclined them to pessimism, and therefore many of them preached peace in the candid expectation that their preachments would go unheard; like other pessimists, they expressed their views less to convert the world than to soothe their disquiet. Their response to the abbé de Saint-Pierre’s Projet de paix perpetuelle, published from 1713 to 1717 and widely publicized through later abridgments, is a measure of their gloom: Rousseau, who was interested enough in Saint-Pierre’s ideas to edit and publish his posthumous manuscripts, was not persuaded by Saint-Pierre’s hopes for the future. He professed affection for the abbé’s ideas but found them inapplicable to man as he is. Statesmen make war, whether wisely or not, because they need it to advance their careers; rulers make war because they want to consolidate or to expand their power. War, Rousseau sadly concluded, is simply the “consequence of a mutual, constant, and palpable disposition”11 to destroy or weaken hostile states. Voltaire, in his turn, was even less inclined than Rousseau to be seduced by Saint-Pierre’s glittering schemes; his sardonic comments on inevitable war are the outbursts not of the detached cynic but of the disappointed humanitarian. He even allowed his disillusionment, coupled as it was with his intense aversion for Rousseau, to distort his reading of Rousseau’s edition of Saint-Pierre’s fragments: attributing to him an unworldly pacifism that Rousseau had in fact called unrealistic, Voltaire denounced the fantasies of projectors, the perversity of human conduct, and the foolishness of Jean-Jacques in the same outburst: “They said peace, peace,” he wrote in 1761, “and there was no peace, and this mad Diogenes of a Rousseau proposes perpetual peace.”12 A philosophe’s lot was far from easy; one of his most difficult and most necessary duties, it seemed, was to discipline his desires under the insistent pressures of reality.
The best known among the philosophes’ efforts to find the conditions of perpetual peace, Kant’s Zum ewigen Frieden, is just such a combat between realism and hope. Zum ewigen Frieden, published in 1795 in the midst of war and revolution, is one of Kant’s last works, and one of the last words of the waning Enlightenment. The inquiry, Kant warns his readers at the outset, is in no way guaranteed success: “To eternal Peace,” was, after all, a satirical inscription that a Dutch innkeeper had put on his signboard; it was the legend accompanying the picture of a graveyard.13 Yet, for all its obvious difficulties, no subject deserves more earnest consideration than this. To be sure, nature with her dark, mysterious plans, acting rather as Adam Smith expected the invisible hand to act, compels men to behave in ways that may produce unexpected results—even peace. But in general, the achievement of peace depends on careful self-analysis, on a willingness of practical politicians to listen to theorists, and on a deliberate policy designed to disarm, slowly, the most potent causes of war. In search of this course, Kant carefully differentiates between what he calls the preliminary and the permanent articles of peace. What Kant had said of goodness, he now said of peace: it can be conquered only step by step, with infinite labor.
The preliminary articles have a single object: to produce a new climate of opinion which alone will make possible the far-reaching changes needed for perpetual peace, and they include the willingness of statesmen to deal candidly with one another; to eschew acquisitions of territory; gradually to dissolve standing armies, which are, by their very existence, a threat to peace; to undertake never to meddle in the internal affairs of other states; and to conduct future wars, if they should after all be unavoidable, with so much humane restraint that later accommodation will be possible: “A war of extermination” will permit perpetual peace only, as it were, metaphorically, in “the great cemetery of the human race.”14 Of course, as long as statesmen continue to equate practical wisdom with the policy of perpetually increasing their power, peace is impossible, and these preliminary articles will appear “schoolmasterly and pedantic.”15 War, Kant concedes in good Hobbesian fashion, is natural; peace, therefore, must be made; and it can be made only after practical men have been convinced that their supposed realism is not practical after all.
Kant’s preliminary articles, therefore, are moves to reduce the temperature of international relations; confidence breeds confidence. The definitive articles of eternal peace can then be drawn up with some possibility of realization. They are three: the civic constitution of every state must be republican (by which Kant means that it must be a government of law, responsible to its citizens through representative institutions); since peace can be assured only under law, states must freely band together in a federation; this federation must guarantee a rule of general hospitality, enabling strangers to visit freely but also requiring guests to conduct themselves with politic restraint. It is in these three articles that the tough-mindedness of the Enlightenment appears at its most impressive: what Kant asks for is difficult and may be impossible, but then the achievement of peace is at best difficult, and to propose simple solutions, to expect that a mere change of mind or a mere piece of institutional machinery will perform miracles, is to betray the cause they are designed to advance. Peace can come only when these hard conditions are met, not before. Republicanism, for one, is a far-off goal, but, Kant argues, it is essential not merely because the republican form is a pure form in its origins, but also because it permits those whom war affects most intimately to decide their own fate: in other states, where the ruler is not “a fellow citizen in the state but the owner of the state—nicht Staatsgenosse, sondern Staatseigentümer—that ruler, precisely the one who will lose nothing of his “banquets, hunts, châteaux, court entertainments” in wartime, treats war as a “kind of pleasure party.”16 This is the doctrine of autonomy in action: let those whose stake in foreign policy is greatest participate in its making, and reason may prevail.
In an appendix to his essay, Kant added a “secret article,” suggesting that statesmen should take advice from “the maxims of philosophers.” It may be too much to “expect kings to philosophize, or philosophers to become kings.” Nor would it be desirable: power inevitably corrupts judgment. “But that kings or royal nations (that is, self-governing nations acting under egalitarian laws) will not permit the class of philosophers to shrink away or fall silent, but let them speak publicly, is indispensable to them both for the clarification of their work.”17 This secret article is what Kant might have called a maxim of hope; it is the political philosophy of the Enlightenment at its most poignant. In general, the philosophes did not expect, and only rarely hinted, that it was their task to guide rulers. Yet they were convinced that if not their persons, at least their philosophy should have—must have—influence over public affairs. But they had experienced too many disappointments to believe in their own prescription fully. They doubted not its efficacy but its palatability: it was salutary, in fact the only salutary prescription available, but the patient seemed resistant and was, to his own misfortune, more powerful than these physicians of civilization could ever hope to be. And so, in the cause of peace, the philosophes were men of good will, though scarcely of good hope.
THE PURSUIT OF POWER and profit in the world took many forms, most of them obnoxious. But most obnoxious of all was the institution of slavery, which came to arouse benevolent men in the eighteenth century, especially after the 1750s, to displays of eloquent indignation. Slavery, it would seem, was coeval with organized society: Voltaire thought it as old as war and human nature itself, and it became, for the Western conscience, a peculiar institution in more ways than one. A few philosophers among the ancients, notably those cosmic cosmopolitans, the Stoics, had deplored slavery; but inclined as they were to accept the course of the world with dignified resignation, they argued not for its abolition in law, but, as it were, in men’s minds. They taught that the slave is free if he learns to disdain cruel fortune, freer indeed than his master, driven by the anxieties and crushed by the burdens that society imposes on a man of wealth and rank. Such teachings may have done something for the morale of educated slaves; they did not lead to the abolition of slavery. The Roman law described slavery as contrary to the laws of nature and solely sanctioned by the laws of men, the ius gentium; Christianity, with its doctrine of individual salvation, contained and concealed a kind of “latent egalitarianism.”18 But for centuries, the tensions that the reasonings of Roman lawyers and doubts of Christian theologians introduced into the discussion of slavery were repressed, or, rather, resolved, in favor of the slaveholder. In the sixteenth century, Jean Bodin, the great theorist of sovereignty, reopened the debate, arguing that there were sound, in fact compelling moral and legal, arguments against an institution that positive law had condoned for centuries; in the seventeenth, and in the philosophes’ own century, a sense of moral outrage over slavery, even of guilt, spread to a certain number of Quakers and other Protestant Dissenters, and to a handful of Anglicans and Catholics who took the virtue of Christian charity seriously. “The Quakers of Pennsylvania,” John Millar noted in 1771, “are the first body of men” who have “discovered any scruples” and who “seem to have thought that the abolition of this practice is a duty they owe to religion and humanity.”19 Quakers like William Penn had still owned slaves; with his descendants, conscience, and (as both the abbé Raynal and Adam Smith noted) the relative insignificance of slaves to the economy in Pennsylvania, induced them to abolish slavery among themselves and to petition for general emancipation. Earlier, as early as 1702, Daniel Defoe, as usual one of the first to discern, applaud, and encourage dawning humanitarian impulses, had vigorously satirized the slave trade. And by mid-century, Horace Walpole began to punctuate his correspondence with energetic denunciations of slavery in general, and of the slave trade in particular. In 1773, when the commercial interests in the British West Indies successfully beat back an inquiry, Walpole raged to Sir Horace Mann: “Caribs, black Caribs, have no representatives in Parliament; they have no agent but God, and he is seldom called to the bar of the House to defend their cause; 206 to 88 gave them up to the mercy of their persecutors; and as the Portuguese call their negroes, the Caribs are deemed disaffected. Alas! dare I complain of gout and rheumatism, when so much a bitterer cup is brewed for men as good as myself in every quarter of the globe! Can one be a man and not shudder at all our nature is capable of! I welcome pain: for it gives me sensibility, and punishes my pride. Donatello loses his grace when I reflect on the million of my fellow creatures that have no one happiness, no one comfort!”20 This was the new, still small voice of eighteenth-century humanity, a prey to conscience, and if a trifle precious still uncompromising. Walpole’s outrage at slavery even forced him into ambivalence about the rebellious American colonists and into unconscious wishful prophecy of future racial troubles: “If all the black slaves were in rebellion,” he wrote in 1774, “I should have no doubt in choosing my side, but I scarce wish perfect freedom to merchants who are the bloodiest of all tyrants. I should think the souls of the Africans would sit heavy on the swords of the Americans.”21 Obviously the philosophes, who agreed that slavery was detestable, were not alone.
But while the philosophes, as so often, did little more than to express advanced opinion in their own time, they were in its vanguard. The denunciations of slavery by Horace Walpole and Samuel Johnson, by Granville Sharp and the marquis de Lafayette, came half a century after Montesquieu first vented his antislavery sentiments in the Lettres persanes. Before Montesquieu, certainly, objections to slavery had been comfortably unspecific. It is true that John Locke had assailed the very idea of slavery in the first sentence of his First Treatise: “Slavery,” he had written there, “is so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that it is hardly to be conceived that an Englishman, much less a gentleman, should plead for it.” But then, this energetic declaration was really directed against Filmer’s paternalistic theory of government; and besides, Locke’s part in the establishment of the Carolina colonies, and his investments in the slave-trading monopoly, the Royal African Company, shows plainly enough that actual slavery did not trouble his conscience. It may be charged that it was easy for Montesquieu and his fellow philosophes to detest slavery: they had no financial stake in it; after all, when one of them, Thomas Jefferson, did have such a stake, he might denounce it vigorously but could still live with, and off it. But, at least, except for those philosophes who happened to be Virginians, their conduct did not compromise their pronouncements.
The philosophes’ view on slavery are predictable and anything but systematic: they are generally exclamations, rarely thoroughgoing analyses. Well-meaning, often vague, they read rather like an automatic response to human misery that speaks well for the philosophes’ intentions but hardly amounts to a crusade; indeed, advocates of slavery sometimes borrowed the philosophes’ imprecise pronouncements or deliberately misread their sarcasms for their own purposes. In general, though, the men of the Enlightenment helped to change men’s thinking on the subject; early in the field and eloquent in their revulsion, they swelled antislavery sentiment from a trickle to a respectable stream of opinion that would grow, at the end of the century, with their help, into the torrent of abolitionism. That this torrent prominently included conscientious judges and evangelical enthusiasts heedless of the economic costs of emancipation does not lessen the philosophes’ share in the campaign and underscores, once more, the alliance among enlightened forces in eighteenth-century civilization.
When Montesquieu first addressed himself to the issue of slavery in his Lettres persanes, opposition to slavery was almost unknown in France. Slaves in French territories, of whom there were somewhat less than one million, were governed under the so-called Code Noir, promulgated by Louis XIV in the fateful year 1685, the very year in which he deprived French Huguenots of all protection. The Code Noir recognized, and rewarded, the slave trade as an economic necessity; it was extraordinarily severe—toward the slave, of course—but its promulgation marked the beginning of some constraint on the masters. In 1712, near the end of his reign, Louis XIV added one of several codicils to the Code, with an edict prohibiting the torture of slaves by masters—a sure sign that torture had in fact been employed. Slavery was woven into the fabric of the French economy; the slave trade benefited the traders, the shippers, the planters directly, and, less directly but no less obviously, a host of industries connected with colonial products. Leading commercial families in port cities like Le Havre and Bordeaux discovered and cherished the slave trade as the avenue to local prestige, enormous wealth, and—most coveted distinction—noble status. Not surprisingly, historians have called Nantes the city of the slave trade, and the eighteenth century in Nantes, the age of the slave trader. Local slavers were prominent in cultural affairs and powerful in the city government, and in the reign of Louis XV, most of Nantes’ slave traders secured titles; in the very age of the Enlightenment, slave merchants were made counts for their services to the state. Understandably enough, feeling themselves indispensable to the French economy as a whole, the port cities were extraordinarily sensitive to any threat that might imperil their profitable livelihood, and remarkably effective in their lobbying. They used influence with highly placed personages; they launched official protests against interference; they hired scribblers to defend their cause. As late as 1789, in the midst of widespread antislavery agitation, the Chambre de Commerce of Bordeaux declared: “France needs its colonies to sustain its commerce,” and, until an alternative system of efficient agricultural labor can be discovered, France “consequently” needs “slaves.”22
When Montesquieu launched a handful of sarcasms against this dominant view of things in 1721, his criticism stung, out of all proportion to its quantity or its intensity, because Montesquieu knew Bordeaux intimately, knew its merchants and the chief source of its impressive wealth. Christian princes, Montesquieu writes in his Lettres persanes, freed their slaves in Europe because it was profitable for them to do so—it allowed them to enlist the masses in their efforts to undermine the powerful nobility; but the same Christian princes continue to encourage slavery in the colonies because there it was slavery, rather than emancipation, that was profitable. “What shall I tell you?” is Montesquieu’s cynical conclusion. “Truth in one age, error in another.”23 But the slave trade is not merely a matter for jokes: untold numbers of human beings are being sacrificed on the altar of commercial rapacity. The slaves, transported from Africa to America, to a strange and unsalubrious climate, “perish there by the thousands. The work in the mines … the malignant vapors that issue from them, the mercury they must use constantly—these destroy them irretrievably. Nothing is so extravagant as to have innumerable men die in digging gold and silver from the depths of the earth.”24
In De l’esprit des lois, Montesquieu gave the question more extensive treatment. In his best sociological manner, he finds some situations in which slavery might actually be less intolerable than it generally is, but Montesquieu’s concessions to relativism concede almost nothing. Slavery may be bearable in despotisms, but then in such states everyone is a slave: if Muscovites readily sell themselves into slavery, he observes, that is quite simply because their freedom is worthless. Again, one cause of the peculiar institution had been, paradoxically enough, the feeling of pity: slavery was a humane substitute for the ancient practice of killing all prisoners of war. Finally, slavery is less irrational in extremely hot climates than elsewhere, for in the tropics masters and slaves alike are condemned to sloth, and nothing at all would get done unless some are forced to work.
Slight as these concessions are, Montesquieu takes care to surround and overwhelm them with fervent denunciations, aggressive aphorisms and damaging sarcasms. “Sugar would be too expensive,” he noted in a draft, “if the plant that produces it were not cultivated by slaves, or if one treated them with some humanity.”25 All the legal rationalizations in behalf of slavery, ancient and modern, are invalid: slavery is evil by its very nature, unlawful, morally corrupting for the master quite as much as for the slave. Anticipating a favorite technique of Voltaire’s, Montesquieu lists arguments that could be advanced in behalf of slavery which are so absurd that they turn into indictments of racial snobbery, aesthetic parochialism, and Western greed: “Having exterminated the American nations, European nations had to enslave those of Africa, to use them for clearing all that land.…
“The people in question are black from head to toe; and their nose is so flat that it is practically impossible to pity them.
“It is impossible to believe that God, who is a very wise Being, should have put a soul, especially a good soul, into a body that is black all over.
“One proof that the Negroes lack common sense is that they make more of a glass necklace than of gold which, among civilized nations, is of such consequence.
“It is impossible for us to suppose that those creatures are men; because if we suppose them to be men, one might begin to think that we ourselves are not Christians.
“Small minds greatly exaggerate the injustice committed against the Africans. For, if it were as reported, would it not have occurred to European princes, who conclude so many useless treaties with one another, to conclude a general one, in favor of mercy and compassion?”26 Arguments in behalf of slavery were, in Montesquieu’s transparent caricature, a reflection on the self-centered and self-satisfied manner in which Europeans perceived the world.
Montesquieu’s polemical virtuosity and his shrewd conflation of two arguments, moral and legal, made the other philosophes into his disciples: most later antislavery writings in the Enlightenment added detail and vehemence, but little that was new. The pitifully mutilated Negro in Candide—the victim of economic imperialism—might have come out of the pages of the Lettres persanes; indeed, in the 1770s Voltaire cheerfully acknowledged Montesquieu’s leadership: “If anyone has ever battled to restore liberty, the right of nature, to slaves of all kinds, surely it was Montesquieu. He pitted reason and humanity against all kinds of slavery,” against the enslavement of Negroes bought on the Gold Coast to harvest sugar in the Caribbean Islands, and against serfdom in Europe.27 Earlier, the Encyclopédie had celebrated Montesquieu’s antislavery writings and propagated his sentiments in his spirit, with his arguments.
The inhumanity of slave drivers furnished the philosophes with much gratifying material for moral outrage: it permitted them to attack Christians who had refused to denounce slavery, kings who permitted it, conquerors who spread it. “Even imaginary misfortunes wring tears from us in the silence of our study and, even more, in the theater,” wrote Raynal in his Histoire des deux Indes, which, with its well-documented historical and political chapters, amounts to a sustained indictment of slavery and a call to conscience. “Only the fatal destiny of miserable Negroes fails to interest us. They are oppressed, they are mutilated, they are burned, they are stabbed—and we hear it coldly, without emotion. The torments of a people to which we owe our pleasures never reach our hearts.”28 Diderot, who had a large share in Raynal’s massive Histoire, luxuriated in such rhetoric, with its peculiar mixture of sincere revulsion and adroit propaganda: “We have reduced them,” Diderot said about Negro slaves, “I won’t say to the condition of slaves, but to that of beasts of burden. And we are reasonable! and we are Christians!”29 And so the evils of slavery became one more weapon in the philosophes’ crusade for secularism: obviously it was preferable not to be a Christian—one had a better opportunity to be humane, it seemed, as an atheist.
While these moral tirades lent fervor to the philosophes’ denunciation of slavery, their legal arguments gave it solidarity. When Voltaire argued, in the Questions sur l’Encyclopédie, that slavery is an innovation that violates man’s original free nature, he was saying what Montesquieu and others had said before him. But then he went beyond Montesquieu: partisans sometimes suggest that a poor laborer would rather be a pampered slave, but ask the laborer—he will cling to his freedom. And a slave, in turn, will choose freedom over slavery, even if he must leave the kindest of masters to face unforeseen hardships. Lawyers like Grotius and Pufendorf may say what they like, if they hold that slavery is ever legal they are wrong and, Voltaire insists, it is nature that proves them wrong.30
Other philosophes also pitted the law of nature against the natural lawyers. Jaucourt argued in the Encyclopédie that a Negro cannot divest himself of his natural right, which is freedom, and that no one else can legally deprive him if it.31 Rousseau argued the same case in the first book of his Contrat social: it is true, as Aristotle and other defenders of slavery since his time have said, that some men are born slaves, but they have mistaken the effect for the cause—men born into slavery, knowing nothing else, may lose the desire for freedom and love their chains. “So if there are slaves by nature, that is because there have been slaves against nature. Force made the first slaves, their cowardice perpetuated their slavery.”32 But force, Rousseau insists, does not create rights. A man who gives himself away is insane, and even if one actually could enter slavery voluntarily, he cannot commit his children: “They are born men, and free.”33 Grotius claims to derive his argument from international law: the conqueror may spare his prisoners in return for their selling their own freedom. But this, Rousseau objects, is a misreading of that law: war is a conflict between states which in no way entitles the victor to kill the vanquished. Grotius’s supposed legal argument is nothing better than a sophism; slavery rests on a gigantic illogicality that touches man in his very essence. “To renounce one’s liberty,” Rousseau concludes in an emphatic paragraph, “is to renounce one’s humanity, one’s human rights, and even one’s duties—sa qualité d’homme, aux droits de l’humanité, même à ses devoirs. There is no possible reparation for the one who renounces everything. Such a renunciation is incompatible with the nature of man; it is to remove all morality from his actions and all freedom from his will.”34 By making his particular case against slavery a special instance of his general case for freedom, Rousseau supplied abolitionism with arguments of absolute universality.
I have suggested that after Montesquieu the Enlightenment’s denunciations of slavery yield little that is new. But there was at least one other argument, the utilitarian, that gained prominence, fittingly enough, in the second half of the eighteenth century, in tune with the Enlightenment’s shift of temper from natural law to utility. Like war, the argument runs in brief, slavery is, in addition to all its other palpable and irreparable vices, a bad bargain.
Among the first to develop this line of reasoning was David Hume. Though publicly on record with his conviction that Negroes are racially inferior to whites, a conviction that he shared with most men of his time, Hume inveighed against slavery for its cruelty, its barbarity, its sheer inhumanity; but more than being offensive and, indeed, disgusting, it was also self-defeating. Elaborating a contention advanced earlier by Montesquieu,35 Hume rejected the claim of proslavery propagandists that, since masters breed slaves as they breed cattle, slavery is a spur to population. On the contrary, Hume found overwhelming evidence that populousness is the necessary attendant of decency rather than cruelty: “Wherever there are most happiness and virtue, and the wisest institutions,” he wrote, “there will also be most people,”36 and populousness in turn encourages productivity, cultivation, and high consumption. Slavery, in a word, is uneconomic.
While the Physiocrats employed the utilitarian argument in the 1760s, the Scottish economists made it into a kind of specialty, as though its cool, practical humanity, implied rather than pronounced, was a congenial temperature for them. In 1771, in a sociological analysis of power relations between men and women, fathers and children, states and subjects, John Millar devotes one long chapter, the last, to “The Authority of a Master over his Servants.” Slavery, Millar argues, had arisen in primitive days, when the helpless and indigent sold themselves to their more fortunate and opulent neighbors, when captives taken in war were allotted to their conquerors, and when judges consigned convicted criminals to servitude. Domestic slavery appears to be very ancient, and to have been practically universal, and Millar judged it a perfectly comprehensible institution in rude ages. But now, with changed times, slavery appeared supremely inappropriate: “When a people become civilized, and when they have made considerable progress in commerce and manufactures, one would imagine they should entertain more liberal views, and be influenced by more extensive considerations of utility.”37
Millar’s views on slavery are in the mainstream of enlightened opinion. He expresses the usual doubts about its present-day legality, and the usual horror at its brutalizing consequences, which, he is shocked to note, affect even “persons of the weaker sex,” and this “in an age distinguished for humanity and politeness.” There can be no question: slavery is “inconsistent with the rights of humanity.”38
While these sentiments were irreproachable, Millar’s persistent emphasis on the economic disutility of slavery is rather more original. That its unprofitable nature has not been generally recognized, Millar suggests, is a tribute to human conservatism, to “that blind prepossession which is commonly acquired in favour of ancient usages: its inconveniences are overlooked, and every innovation, with respect to it, is considered as a dangerous measure.” Once this psychological resistance has been overcome, it will become apparent that slavery is not merely pernicious, but also “contrary to the true interest of the master.”39 Slavery is unprofitable, first of all, because slaves have never been encouraged to acquire either skills or discipline; hence they are wholly unfitted for any but the crudest labor. It is unprofitable, in the second place, because slaves are turned into resentful beasts of burden who will submit sullenly, revolt on occasion, and never work efficiently. “No conclusion seems more certain than this, that men will commonly exert more activity when they work for their own benefit, than when they are compelled to labour for the benefit merely of another. The introduction of personal liberty has therefore an infallible tendency to render the inhabitants of a country more industrious.”40 Slavery is unprofitable, finally, because it prevents the introduction of labor-saving devices and depresses productivity in general. While he cautiously admits that the matter has never been properly examined, Millar finds “ground to believe that the institution of slavery is the chief circumstance that has prevented those contrivances to shorten and facilitate the more laborious employments of the people, which take place in other countries where freedom has been introduced,”41 a belief directly contradicting the current view that slavery was the only way of forcing men to cultivate the soil in an untoward climate.
Millar’s book was a success: it had a second edition in 1773, and a third in 1779, under its new and better-known title, The Origin of the Distinction of Ranks. Millar’s conviction that slavery is “equally inconvenient and pernicious”42 thus found a sizable audience. But it was Adam Smith, Millar’s teacher, friend, and colleague, who gave the utilitarian argument its final form and widest hearing. Smith only glances at the institution of slavery, but his Wealth of Nations was so avidly read, its formulations seemed so authoritative, that a few sentences on the subject were incontrovertible obiter dicta, at least to those not blinded by what Millar had called “blind prepossession” in behalf of ancient usages. In harmony with, and, indeed, as part of, his general argument in favor of “the liberal reward of labour,” Smith asserts that a slave costs his master more than a free laborer. Both need subsistence pay, enough to perpetuate their kind; but a slave is likely to be in the hands of a “negligent master or careless overseer,” that is of men who waste the precious resource in their keeping, while a free man, managing himself, is likely to waste himself less. “It appears,” Smith concludes, and from “the experience of all ages and nations, I believe, that the work done by freemen comes cheaper in the end than that performed by slaves. It is found to do so,” he adds, with that insistent urge toward specificity that was part of his persuasiveness, “even at Boston, New York, and Philadelphia, where the wages of common labour are so very high.”43 Slavery is a special case of protectionism, a prominent instance of that supreme piece of bad reasoning that has for so long crippled economic growth. To reinforce this point, Smith advances the ironical paradox that slaves are better protected in despotisms than in free states, for the despot can intervene in the private affairs of the great planters and prevent the grossest cruelties. But this is no proof that the modern world needs despotism; it is proof rather that the modern world needs emancipation. The irony of slavery does not stop here. Adam Smith concedes that the profits of the sugar plantations in the West Indies are high, and those of the tobacco plantations, though smaller, still impressive, but this only means that these industries can “afford the expence of slave cultivation”—they are, economically speaking, wasteful and peculiar luxuries. For, as Smith reiterates, “the work done by slaves, though it appears to cost only their maintenance, is in the end the dearest of any.”44
Smith’s supporting arguments for this position are a mixture of economic analysis and deductive psychology: “A person who can acquire no property, can have no other interest but to eat as much, and to labour as little as possible. Whatever work he does beyond what is sufficient to purchase his own maintenance, can be squeezed out of him by violence only, and not by any interest of his own.” Slavery has been given up in Europe because it was palpably uneconomic; if it persists elsewhere, this is less for economic than for psychological reasons: “The pride of man makes him love to domineer, and nothing mortifies him so much as to be obliged to condescend to persuade his inferiors. Whenever the law allows it, and the nature of the work can afford it, therefore, he will generally prefer the service of slaves to that of freemen.”45 Obviously, the economy cannot afford to gratify the power drives of wealthy merchants.46
In the long run, though, it was humanity, an irresistible alliance of religious with secular enthusiasm, that brought the slave trade and, after that, slavery itself to its end. The change of temper was measurably aided by the shifting interests of merchants and industrialists, but this shift was at least in part a supple response to antislavery agitation, and the most eloquent spokesmen for abolition were, by and large, tenacious philanthropists like Granville Sharp, persistent philosophes like Condorcet, and obsessive evangelicals like Wilberforce. The utilitarian argument, at least in the eighteenth century, suffered visible liabilities; it was vastly offensive to potent vested interests, and it was, at least in its sweeping, generalized form, demonstrably false. Prudently, Adam Smith had admitted that slave industries like the sugar plantations were highly prosperous, but he, like his fellows, neglected to add that slavery showered profits on many related industries as well. In the middle of the eighteenth century, the three great ports, London, Bristol, and Liverpool, sent out about four hundred slave ships a year, and it was not slaves alone that guaranteed the prosperity of these harbor towns: shipbuilders, importers from the colonies, and furnishers of supplies for the vessels and their crews all shared in the blessings of the triangular trade. The agreement that gave the British a monopoly over the supply of slaves to the Spanish colonies imposed on Spain at the Peace of Utrecht, the much-debated asiento, had its drawbacks as a commercial instrument, but it underscores the importance of the slave trade to the British economy and in the British mind. Humanity was not at issue for anyone; the rivalry among the port towns, from which Liverpool eventually emerged triumphant, centered around the price of slaves, and Liverpool shippers, most of them hardened smugglers, managed to supply the goods—that is, African slaves—to the British West Indies at several pounds less than its rivals. Profits on each voyage could be as high as several thousand pounds sterling and several hundred per cent, although in the aggregate, what with commissions, costs, and inevitable losses, the profit amounted to a mere thirty to forty per cent—a return high enough to encourage the most determined defense of the trade. Not that such defense was needed, at least not until the 1770s or so. Slave traders were highly respected; besides, the slave trade was popular and thought vital to the British economy, just as it was thought vital to the French economy. In 1764, the prominent Bristol slave trader John Pinney expressed his conviction, and sought to convince others, that “Negroes,” which is, of course, to say, slaves, “are the Sinews of a Plantation, and it is as impossible for a Man to make Sugar without the assistance of Negroes, as to make Bricks without Straw.”47 There was no need for him to labor the point; others were as convinced as he was. A few years before, Malachy Postlethwayt, a prolific, thoroughly unoriginal publicist on economic matters who specialized in demonstrating the surpassing value of the slave trade to the British economy, said out loud what almost everyone in his time believed: the slave trade is “the first principle and foundation of all the rest, the mainspring of the machine which sets every wheel in motion.”48 Scruples—and many, even Postlethwayt, were not total strangers to scruples—melted away in the face of this reality.
While some abolitionists were later to complain that enlightened men of the eighteenth century had failed to make abolition into a crusade, they underestimated the radicalism of the philosophes’ writings for their time, and the persistence, the sheer strength of traditional opinion. As late as the 1770s, while the voice of antislavery agitation was rising in Britain, it was still the voice of a distinct and not particularly potent minority; in France the sustained and furious assaults by the abbé Raynal was a rare and, it seemed to most, a cranky outburst.49 The rather peculiar debate between Johnson and Boswell—if debate it can be called—shows that the hold of the complacent, self-serving proslavery position on even informed opinion remained strong. Samuel Johnson was a passionate adversary of slavery. Boswell, much to his regret, was constrained to report that Johnson, “upon one occasion, when in company with some very grave men at Oxford,” had offered the toast: “ ‘Here’s to the next insurrection of the negroes in the West Indies.’ ”50 Johnson deeply resented the clamor of American colonists for freedom as nothing less than revolting hypocrisy: “How is it,” he asked, “that we hear the loudest yelps for liberty among the drivers of negroes?”51 But British colonials elsewhere were no better; their rapacity and callousness toward their black victims made them nothing better than “English barbarians.”52 With all his passion for travel and exploration, Johnson even professed fear of new discoveries since they always seemed to “end in conquest and robbery.”53
Johnson’s abolitionism rose above a humane and angry sympathy for particular victims to general principles, and his expression of those principles sounded practically like a plagiarism from a writer whom he detested almost as much as he detested slavery: Jean-Jacques Rousseau. In 1777, joining in the legal struggle initiated by Granville Sharp to have slavery declared illegal in Britain, Johnson dictated a memorandum to Boswell in which he expressed his doubts “whether slavery can ever be supposed the natural condition of man. It is impossible not to conceive that men in their original state were equal.” The legal situation of slaves everywhere is deplorable and itself illegal under higher law; it is intolerable to see that in Jamaica, for example, the laws “afford a Negro no redress. His colour is considered as a sufficient testimony against him.” Yet, even if the slave’s lot were less wretched, it would be no less unnatural: “An individual may, indeed, forfeit his liberty by a crime; but he cannot by that crime forfeit the liberty of his children. What is true of a criminal seems true likewise of a captive.” There may have been a time when slavery was the justified condition of one Negro, but this condition cannot be handed down to his descendant: “He is certainly subject by no law, but that of violence, to his present master.” Slavery, in a word, is both lamentable and against the “rights of nature.”54 Nothing, Johnson thought, could be plainer than this.
Boswell did not think it plain at all. Ever the faithful biographer, he recorded Johnson’s opinions, but he stoutly refused to be instructed by his master on this vital question; he treated Johnson’s reasoning against slavery with a kind of respectful condescension, convinced that they must be “owing to prejudice, and imperfect or false information.” The attempt to “abolish so very important and necessary a branch of commercial interest” was nothing less than “wild and dangerous”; it constituted not merely “robbery to an innumerable class of our fellow-subjects,” not merely an assault on a “status, which in all ages GOD has sanctioned,” but also “extreme cruelty to the African Savages, a portion of whom it saves from massacre, or intolerable bondage in their own country, and introduces into a much happier state of life.” As Boswell poetically concluded, quoting from Gray’s Elegy in a breathtaking display of moral earnestness and confusion: “To abolish that trade would be to ‘—shut the gates of mercy on mankind.’ ”55
In treating abolitionist sentiment as uninformed, irresponsible, immoral, almost a kind of treason, and in rationalizing imperialism as a divine dispensation, Boswell was speaking for the well-meaning respectable majority in his time. Placed within its historical context, the debate between Boswell and Johnson was less a debate between callousness and decency, or darkness against light; it was a debate between the present and the future. Slavery as an institution seemed so natural, so normal, so inevitable to most that the slaveholders among the philosophes like Thomas Jefferson—who was a persistent and troubled advocate of abolition—lived with slavery and traded in slaves as though nothing else were possible. It is plausible to charge that the philosophes did not do enough to secure the future for which Johnson and Raynal and Condorcet spoke so movingly; it is likely that they could have done more; and it is certain that there was much to do.
WHILE THE PHILOSOPHES’ EFFORTS to aid victims of Western civilization in remote parts of the world were compromised by a certain tepidness of will, their indignation against injustices closer to home was less ambivalent and more effective. The philosophes’ crusade for legal reform bears all the marks of their splenetic empiricism, their urge to exploit incidents and translate discontent into action; satisfied neither with rescuing this or that victim of judicial injustice, nor with proposing improvements in this or that procedure, the philosophes embodied in their legal writings all their political ideals. Strangely enough, the philosophes discovered the horrors of the criminal law rather late. Had they been alert to them, they would have found spectacular instances of injustice everywhere at all times. But then, they were men of their day as well as prophets of a new day, and, in obedience to the economy that compels reformers to concentrate on some grievances at the expense of others, they simply accepted for decades the legal systems under which they lived. Once they saw, they acted as if they had never been blind—insights are great amnesiacs—and fell on the defects of the criminal law with nothing less than a convert’s ferocity, anticipating by two centuries Marc Bloch’s dictum that the most reliable touchstone of a social system is the manner in which men are judged in court.56
In the age of the Enlightenment, the criminal law of civilized countries everywhere was ferocious, and, in direct conflict with new notions of philanthropy, humanity, and good sense, generally grew more ferocious decade by decade. Here and there the law responded to the demands of the new philosophy; upon his accession in 1740, Frederick of Prussia confirmed the good name which, as crown prince, he had acquired among the philosophes: he ordered an end to torture in cases of high treason and mass murder and by 1755 he had suppressed torture altogether. In 1743, acting on the same impulse, he abolished the death penalty for theft and eliminated a series of humiliating and brutal punishments, such as mutilation. But in general, the new humaneness worked, where it worked at all, in the interstices of the written law and bent the old letter to the new spirit: in 1774, Frederick instructed his courts that “in criminalibus” sentences should be “too lenient rather than too strict.”57 In France, although the parlements would hand the philosophes some splendid cases of stubbornness, stupidity, and sheer sadism, the courts were often inclined to be moderate in their sentences, especially if the convicted person was a member neither of that hunted minority, the Huguenots, nor of that silent majority, the poor. In the Dutch Republic, torture was not officially suppressed until 1798, but the practice of torture was abandoned at the beginning of the eighteenth century. In England, accused persons found guilty and in fact obviously guilty were sometimes allowed to escape the rigor of the law: judges could recommend a reprieve, an act that stayed and often prevented execution; the king could—and in hundreds of cases did—exercise his prerogative by commuting the death sentence, usually to transportation; lawyers could save defendants (with the connivance of the judge) by discovering some technical flaw in the indictment; juries, appalled at the sentence that would follow conviction, sometimes insisted on acquitting a guilty defendant or (once again with the connivance of the judge) find him guilty of a lesser offense than the one for which he was being tried. The old severity had many champions, but they found formidable adversaries in the ingenuity of decent men.
These instances of humanity, though, common as they were, were like flashes of lightning that illuminated, for a few dazzling moments, the bleak landscape of criminal procedure. In most civilized countries—Prussia was a notable exception—laws became more vindictive than ever. Human life was still cheap, especially if it was the life of the lowly, and men were executed without qualms and with dispatch, normally after rapid and perfunctory proceedings:
The hungry judges soon the sentence sign,
And wretches hang that jurymen may dine.58
It was property that was worth a court’s time.
Like the law’s haste in criminal cases, the law’s delay in cases involving property was a source of injustice. Only those with adequate resources could afford the cost of litigation. By the time cases were decided in the German Imperial Court (as Goethe recalled with some amusement), the original cause had disappeared, the parties had changed their minds, or had died. Goethe found nothing untoward in this situation; he was, after all, speaking for those for whom this system seemed to be expressly designed: “The state is interested only in seeing that property is certain and secure; whether it is lawfully held concerns it less.”59 In the absence of effective police forces, the possessing orders protected their property by adding to the list of crimes and increasing the severity of punishments. In continental states, with their powerful aristocracies, courts rendered class justice and readily suffered their verdicts to be overturned by edicts from above: a nobleman in favor at court or with a duke’s mistress was, if not always immune from prosecution, usually safe from punishment, while peasants or poor laborers had no recourse against savage prosecutions or capricious and cruel penalties. In France, eighteenth-century courts proceeded under Colbert’s Criminal Ordinance of 1670, which was a timidly modernized version of the Code of 1539. Its only modern feature was its severity with crimes against property; for the rest it read much the earlier code from which it was derived. Its catalogue of crimes was long, the identification of sin and crime was left untouched, torture remained a permissible method of interrogation, everything—the mode of investigation, the role of the judge, the limitations on the accused, the favor shown to the most dubious testimony—conspired to make a French trial an inquisition that seemed like a predictable gladiatorial contest in which one combatant holds all the weapons: the defendant appeared like an outcast from society; to have incurred sufficient suspicion to be prosecuted was almost enough to make one a criminal. This Ordinance was sometimes evaded, but normally it was enforced: once Voltaire and other critics of the French law began their crusade for reform, they could draw material to support their cause from hundreds of lurid trials.
The history of the British law in the eighteenth century is one of the most unpleasant paradoxes in the age of the Enlightenment. British procedure seemed to continental reformers worthy of envy and imitation: did it not permit the defendent counsel? did it not give him the protection of trial by his peers? do without torture? allow for appeals? manipulate a whole elaborate machinery of mercy? Yet even Britain—in fact, especially Britain—participated in the widespread eighteenth-century tendency to make repression more repressive. The position of a defendant was anything but enviable: persons under arrest often languished in jail until their cases came up for trial, and even after acquittal the poor found themselves back in detention until they could raise the money to pay their fees. This was bad enough; what was worse was the progressive aggravation of penalties for crimes against property. The list of death penalties for such crimes grew, in the age of the Enlightenment, with astounding rapidity. In the mid-1760s, Blackstone estimated the number of capital crimes at 160, of which more than a hundred had been added to the books since the Glorious Revolution; around 1820, the number had risen to perhaps 220. This luxuriating jungle of retribution was increasingly made up of painstaking and piecemeal statutes against theft, highway robbery, pickpocketing, forgery, and similar assaults on the comfortable orders. This list is an instructive guide to new industries, new sources of prosperity, new luxuries. Roads and canals were protected by a series of enactments imposing the death penalty for the destruction of locks, floodgates, bridges, and turnpikes; respectable importers, by similar laws against smuggling; farmers, manufacturers, shop keepers, and householders, by statutes exacting the death penalty for grand larceny (which was defined as stealing an object worth more than twelve pence), for thefts of cattle or merchandise, forgery of bank notes, embezzlement of funds. Every year, perhaps more than once a year, the wall around property was raised still higher.
These statutes were a reliable guide to practice: it is significant that while in Prussia, between 1775 and 1778, two executions out of forty-six were for crimes against property, in London and Middlesex, in 1785, at least 89 out of 97 executions were for such crimes, including two for “personating others to obtain prize money.”60 As I have said, it seemed a little strange, and more than a little depressing to men of good will, but in the age of Enlightenment, in the teeth of a prospering movement toward humanity, the law grew more stringent, religiously safeguarding property—or, rather, safeguarding property as though it were a new religion. What was true of the slave trade was true, with quite as much force, of the law: there was a great deal to do.
Montesquieu, showing the Enlightenment the way once again, rejected this prevailing conception of law in detail and in principle early, in his first book. As everyone knows, the Lettres persanes is a frivolous book, a fragile vessel to carry so much heavy freight, and important precisely for that reason: with its urbane tone and light touch, it was a singularly apt vehicle for serious propaganda. One of its letters is devoted to a principled and, significantly enough, wholly utilitarian defense of leniency: the most reasonable, most perfect government, Montesquieu argues, is the one that “reaches its goal with a minimum of cost.” Since people are just as docile under a mild as under a harsh regime—“In countries where penalties are moderate, they are feared as much as they are in those where they are tyrannical and horrible”—a lenient code of laws is to be preferred to a harsh one.61 Really drastic punishments should therefore be reserved for really great crimes. In other letters, he calls for the incorporation of religious toleration in the laws of the land, and expresses his sympathy with the victims of persecution: to “torment the conscience of others” is, quite simply, inhuman.62
In De l’esprit des lois, notably in book XII, which has been called, with understandable enthusiasm, “the Magna Carta of the citizen,”63 Montesquieu codified these generalities. Political liberty—this is his fundamental principle which he elaborates with lawyerlike specificity—“consists in security,” or, at least, in the feeling of security, and security in turn “depends on the good quality of the criminal laws.”64 The most insidious enemies of security are “public or private accusations”65; hence trials must give the accused a hearing, false witnesses should be punished, informers are to be discouraged, no one should be condemned to death on the deposition of a single witness, and specific punishments should be prescribed for specific crimes, so that legal and judicial caprice are eliminated. With these few simple but far-reaching proposals, Montesquieu sought to convert trials from a one-sided, largely ritualistic combat into a humane inquiry for truth and search for justice.
From his radical attack on court procedure Montesquieu moves to the definition of crime. Traditionally, he writes, lawyers have divided crimes into four kinds: crimes against religion, morals, public tranquillity, and the security of the subject. But some of these “crimes” are not crimes at all: sacrilege that remains locked within a man’s mind, for one, is not a concern of the state—it is between man and God. Some people have the idea that “one must avenge the Deity. But one must honor the Deity, and never avenge it.” Montesquieu lends force to this dictum with a characteristic story: “A historian of Provence relates an incident which gives us an excellent idea what effect this notion of avenging the Deity can have on weak minds: a Jew, accused of having blasphemed the Holy Virgin, was sentenced to be flayed alive. Then some masked gentlemen climbed on the scaffold, knife in hand, and drove the executioner away, that they themselves might avenge the honor of the Holy Virgin.… I do not want to anticipate the reflection of the reader.”66 Again, the man who commits sacrilege publicly may be expelled from his religious community either for a time or permanently, he may be shunned and cursed, but, once again, none of this concerns the judicial arm of the government. The separation of church and state, and the subjection of church to state, are implied in these few impassioned paragraphs.
Montesquieu is willing to describe crimes against morals as true crimes, but of a lesser order, to be repressed, partly as blasphemy should be repressed, by symbolic action, private disapproval, and ostracism, and partly by fines or exile imposed by the state. Crimes against public tranquillity are more serious still, but the only class of crimes to which, Montesquieu thinks, really drastic punishments are ever appropriate, are large-scale thefts, and, above all, murder. Yet even here, as always, Montesquieu insists that distinctions and degrees of punishment should be “founded in nature.” Punishment of felonies is “a kind of retaliation” by which “society refuses security to a citizen who has deprived, or intends to deprive, another of it. This punishment is drawn from the nature of the thing, drawn from reason and the very sources of good and evil. A citizen deserves death when he has violated security to the point of taking life, or having undertaken to take life. This death penalty is, so to speak, like the remedy of a sick society.” Theft is another matter: the death penalty may sometimes be appropriate then, but “perhaps it would be better, and closer to nature, to punish crimes against the security of property by loss of property.”67 In a bold and enlightened departure from prevailing standards, Montesquieu dares to place a higher value on life than on property, a transvaluation hardly welcome to a society in which the repression of the property-less furnished the propertied with their sense of security. But to advocate leniency was, for Montesquieu, more than a daring foray into novelty, more than the expression of a private taste for humanity. “Everything I have said,” he noted with some pride, “is drawn from nature and highly favorable to the liberty of the citizen.”68
“Drawn from nature” meant “intertwined with the rest of my philosophy.” In fact, Montesquieu places his call for leniency squarely into his political sociology; he has no hesitation in connecting modes of punishment with forms of government. “The severity of punishment suits despotic governments, whose principle is terror, better than monarchies and republics, whose inner springs are honor and virtue.”69 Severity, which is merely a euphemism for cruelty, is natural in a form of government which is, in Montesquieu’s political thought, vicious by its very nature: severity is evil in its own right and, at the same time, a revealing and depressing symptom of the system with which it is so properly associated. Montesquieu claims that liberty and leniency vary in direct proportion to one another: as one flourishes the other flourishes, as one decays the other decays; the more virtuous a nation, the fewer and milder can the authorities permit penalties to be. Besides, the habit of leniency brings its own rewards: “Experience suggests that in countries where punishments are mild, the citizen there is affected by them quite as much as he is elsewhere by greater severity.” Men should be managed not by extreme, but by moderate, methods. “When we examine the causes of all moral laxity, we will discover that it springs from the impunity of the criminal, not from the moderateness of punishment.”70 Of course—Montesquieu insists on this—crimes vary in degree; hence punishments must vary with them. Developing a hint which he had first thrown out in the Lettres persanes and which was to emerge as a principal point in the philosophes’ case for legal reform, Montesquieu called for a “just proportion between punishment and crime.” It is essential, he wrote, “that punishments maintain a certain proportion with one another, because it is essential to avoid a greater crime rather than a smaller one”—if all penalties are Draconian, men would rather hang for a murder than for a theft.71 Montesquieu’s humanity was part of his rationalist analysis of society.
All these were safeguards for the innocent, for defendants guilty of crimes smaller than the crimes of which they had been accused, or for criminals who deserved milder punishments than was customary. But Montesquieu was not content with placing only one fence around ever-endangered human life; he found it important to surround this line of defense with additional bulwarks. One inexhaustible source of mischief, he noted, was the rage to punish, whether motivated by religious zeal, or by sadism, or by the desire for advancement in an administrative or judicial career. The classification of crimes, therefore, must be supplemented with an earnest warning to prosecutors and judges to be extremely circumspect in finding that a crime has been committed, for many “notorious” crimes never took place at all. Witchcraft is one of those imaginary crimes; heresy is another—a vague accusation untenable in court, since almost anything can be called heretical; and the felonies supposedly committed by despised outsiders are nearly always pure invention. “Under the reign of Philip the Long, the Jews were expelled from France, accused of having poisoned the wells with lepers. This absurd accusation should make us doubt all those accusations founded on public hatred.”72 Acts openly admitted but actually not criminal, like “the crime against nature,” deserve the same care.73 Montesquieu professes all the proper abhorrence for homosexuality which, he concedes, is condemned with equal severity by religion, morality, and law. It should be proscribed, but society should entrust educational institutions like the family with discouraging such a detestable habit; to punish it with the customary cruelty is to act in excess. This was not an abstract argument: in 1750 two Parisian workers were publicly executed for homosexuality. “The parlement of Paris,” Raynal reported, “which rarely makes examples of severity in certain genres, has had two men burned for the sin of nonconformity, and, in the same week, seven or eight women publicly whipped for the contrary sin.”74 As with stealing, so with special tastes in sex: only the privileged could indulge themselves with impunity.
There was one offense on the statute books that seemed to Montesquieu to epitomize the defects of all existing codes—high treason. Like the poisoning of wells, treason was usually an imaginary crime; like buggery, it was sometimes a real crime of relatively minor importance, magnified into a vicious felony. The very word “treason,” Montesquieu warned, was being used far too loosely: counterfeiting coins is not treason. In their frantic search for traitors, suspicious rulers often manage to create what they tremble to find. They employ agents provocateurs to stir up treacherous talk and hound their courtiers into discovering disaffection in high places. Treason, in short, must be defined with statesmanlike self-restraint: “If the crime of lèse-majesté is vague, that is enough to have the government degenerate into despotism.”75 Once again Montesquieu ties his analysis of the criminal law to the dynamics of his political sociology.
Montesquieu’s treatment of treason is instructive because it emphasizes and specifies the distinction between public and private, which Montesquieu had already drawn in his treatment of sexual deviation, private blasphemy, and religious heterodoxy. Thoughts are not treason: to punish men for thinking treacherous thoughts is characteristic only of despotism. “The laws undertake to punish only overt acts.”76 Speech, even an indiscreet utterance, is not treason: it lies open to the most varied interpretations and often has no influence on action at all. Wherever words are converted into the crime of lèse-majesté, “not only liberty, but its very shadow, is no more.”77 Even words reduced to writing are not treason: most states repress satires, even criticism of the government, severely, but if the written word does not actually prepare the way for treason, treason is not what it should be called. True, words, whether spoken or written, may be direct incitements to treacherous actions, and then they must be punished. But then—and the distinction may seem a quibble but is actually of the highest importance—the crime lies not in the words but the actions. Montesquieu was not yet ready to draw an absolute distinction between public and private; in his writings the separation of church and state and the toleration of sexual deviance are, as I have said, incomplete, partially rather than wholly explicit. But in delimiting thoughts from words and words from acts, Montesquieu was translating the old ideal of the private sphere in which no public agency, neither guild nor church nor state, has any business, into the modern form that it has had ever since in liberal political thought.
Montesquieu’s De l’esprit des lois aroused immediate controversy, and its pious critics did not overlook Montesquieu’s legal ideas: one objected to Montesquieu’s demand that men cease to try avenging the deity; another, that his legal, like his political principles, must lead to toleration, that most unfortunate of social consequences. Not unexpectedly, the philosophic family welcomed these very principles and treated them with respect, but they had no immediate effect on its work or its preoccupations. I have said that the philosophes turned legal reformers because they were empiricists, because they found the need for reform appallingly apparent in their immediate experience—that is, once it was apparent. They had to be educated by spectacular cases before their latent, rhetorical humanity would become manifest and practical. The Calas case—endlessly described, yet worth describing just once more—is a critical moment, for Voltaire, for French justice, and for the Enlightenment, precisely because it was the dramatic event that supplied the needed specificity, and the needed timeliness, for Montesquieu’s generalizations on the law. It made the letter spirit.
Voltaire first heard about the Calas case in the middle of March 1762, when it was too late to do anything about it—at least about Jean Calas. Voltaire was nearing sixty-eight, he was rich and famous, he was still writing furiously, and he had just begun to publish, after decades of concealment and careful preparations, his outrageous attacks on Christianity in all its forms. The story about Calas, which a French visitor told him at Ferney, propelled him into still another career: he had said a few perfunctory things in favor of justice and leniency before this, he would say many passionate things about both from now on, to the end of his life sixteen years later.78
From his visitor’s report, and from inquiries he promptly undertook on his own, Voltaire gathered these facts: on the evening of October 13, 1761, Marc-Antoine Calas, eldest son of Jean Calas, a Huguenot cloth merchant in Toulouse, had been found hanged in his father’s shop. At first the Calas family had claimed that the young man must have been murdered by a stranger; upon further interrogation, all of them changed their story and insisted that he had actually committed suicide. The case captured the imagination of Toulouse: though normally the Huguenots there found the dominant Roman Catholic majority tolerant and even indulgent, in times of war and distress—and 1761 was a year of both—economic and political anxieties were distorted into paranoid suspicion of “outsiders.” The old, repeatedly discredited charge of ritual murder was now revived against Jean Calas: the rumor went about the town that Marc-Antoine had been about to convert to the True Faith, and that his fanatical father, to prevent this defection, had killed him. The authorities did their utmost to find the truth. They questioned scores of witnesses, interrogated the accused Calas family with all the methods at their disposal, involved the church in the investigations by having local clergymen read from the pulpit a monitoire—a public admonition to all who had information to come forward and testify. A leading local magistrate, David de Beaudrigue, pursued the case with zealous diligence. The conclusion was as predictable as the end of a well-planned tragedy: on March 9, 1762, the parlement of Toulouse, in its capacity of appellate court, condemned Jean Calas to death at the stake, and on March 10, in accord with regular procedures, Jean Calas was put through what was euphemistically known as the “ordinary question” and the “extraordinary question”—that is, torture of several kinds—designed to extract the confession he had stoutly refused to make, and to inculpate his accomplices. The question produced no answers: through his entire ordeal, even when he was broken on the wheel, Jean Calas continued to profess his innocence; when Beaudrigue entreated his victim to confess at the last moment, in the presence of death, Calas turned his head away without a word. A few minutes later, he was strangled by the executioner.
The case was horrible but, for Voltaire, perfect. His response was characteristic: here was a riddle worthy of the most avid intelligence, and, better, it represented a concatenation of events discrediting l’infâme which he had just begun to belabor in print. If Calas had murdered his son, this was a splendid specimen of Protestant fanaticism; if the authorities had murdered Calas, this was a splendid specimen of Catholic fanaticism: in either case, the philosophes could only profit. “Was he guilty or innocent?” Voltaire inquired soon after he had heard of the case, with a mixture of fascination, enjoyment, and rage. “One way or the other, this is the most horrible fanaticism in the most enlightened century. My tragedies are not so tragic.”79
But his humanity soon won out over the desire to parade evidence of human wickedness and stupidity for the sake of scoring points against l’infâme. Calas obsessed Voltaire. He begged for information; he made inquiries in Toulouse and Paris; he disregarded the well-meaning warnings of his friends to stay away from a case that had been decided correctly, and, moreover, in accord with the legal code. Voltaire became convinced that Calas had been innocent and that the case had been nothing less than a monstrous miscarriage of justice. With the energy that characterized him to the last, he threw himself into the effort of rehabilitating Calas’s memory, and the good repute of the Calas family. He was doing what he had learned to do incomparably well: to move men by the written word, with his inimitable combination of clarity, oversimplification, and a kind of witty fury. In his hands, the Calas case became the most celebrated case in Europe. His reputation did not suffer. In August 1762, Diderot accorded to Voltaire the reformer the praise he usually reserved for Voltaire the dramatist: “It’s Voltaire who is writing in behalf of this unhappy family,” he wrote to Sophie Volland. “Oh! my friend, what a splendid use of genius! That man must have spirit, sensibility; injustice must be revolting to him; he must feel the charms of virtue. For what are the Calas to him? What is it that can interest him in them? What reason has he to suspend labors he loves, to occupy himself in their defense? If there were a Christ, I assure you that Voltaire would be saved.”80 It was a warm but deserved tribute. Voltaire felt unable to continue work on a tragedy of his own, he said, until the tragedy of Toulouse had been resolved; and he importuned his friends to help him. “Shout everywhere, I beg you, for the Calas,” he wrote to d’Alembert in September 1762, “and against fanaticism, for it’s l’infâme that has caused their misery.”81 His success was rapid and dramatic: aided by fellow philosophes and by others of good will, including those whose Christian faith was unimpeachable but whose names are little known, Voltaire managed to reverse the verdict of the parlement of Toulouse, and to reunite and rehabilitate the scattered members of the Calas family. On March 9, 1765, on the third anniversary of Jean Calas’s conviction, a royal tribunal declared the victim innocent, and ordered his conviction, as well as the convictions of other members of the family, stricken from the record. It was now official: Marc-Antoine Calas had committed suicide.
“It’s l’infâme that has caused their misery”—this was Voltaire’s first conclusion. Not unexpectedly, he was inclined to dwell on the religious causes of this terrible miscarriage of justice. Yet, as other cases were brought to him, now that he was becoming l’homme aux Calas, and as he studied the memoranda that prominent lawyers submitted to him at his request, it dawned on him that it was the French legal system as such that was on trial. Every aspect of the Calas case disclosed a glaring defect in the Criminal Ordinance of 1670. Why had the Calas family lied at first, denying that Marc-Antoine had committed suicide? Because under French law, a suicide was a felon who was subjected to an ignominious mock trial, dragged through the streets naked by the heels, and hanged. Why had the judges lent credence to so much improbable testimony? Because the Ordinance permitted the most outrageous rumors, hearsay upon hearsay, to be accepted into the record. Why were there so few who had come forward in behalf of Calas? Because the intervention of the church in the case with its inflammatory language had spurred on witnesses for the prosecution and intimidated witnesses for the defense. Why had highly placed judges resorted to the abomination of torturing an old man? Because this was the accepted legal method of extorting confessions from an obdurate but obviously guilty defendant, and of discovering the accomplices he hoped to shield by his professions of innocence. To be sure, the Calas case had implications outside the law itself: in his moving Traité sur la tolérance of 1763, written in the midst of his efforts in behalf of the Calas family, Voltaire pleaded for toleration of religious minorities as a policy both humane and practical. “Doubtless,” he wrote, as usual hitting two targets with one shot, “like us, the Huguenots have been intoxicated with fanaticism and sullied with blood; but is the present generation as barbarous as its parents? Time, reason which is making so much progress, good books, the decent manners of society—have they not penetrated at all among those who guide the souls of these people? And do we not see that almost all of Europe has changed its face during the last fifty years or so?”82 But even this tract, so eloquently directed against persecution, begins with a long, typically tendentious account of the Calas case: the French legal system was now in the center of Voltaire’s attention.
In the fall of 1765, in the mood for generalizations and in search of principles, Voltaire was singularly fortunate to encounter an eloquent general treatise on the criminal law, Beccaria’s Dei delitti e delle pene. This powerful little book is a characteristic product of the free trade in ideas so widespread in the Enlightenment, and would have been unthinkable without it. Beccaria, the Milanese aristocrat who ascribed his “conversion to philosophy” to Montesquieu’s Lettres persanes and who had erased what he regarded as the baleful effects of his “fanatical” Jesuit education by studying Helvétius, Buffon, Diderot, Hume, d’Alembert, Condillac, and Rousseau, now repaid his masters, with interest.83 He developed their hints into ideas, their ideas into sustained arguments, and influenced some of the very men who had liberated him. He was deeply indebted to the Enlightenment; the Enlightenment came to be deeply indebted to him.
Nothing in Dei delitti e delle pene is new; its governing ideas had been formulated, though often in tentative or fragmentary shape, by the teachers whom Beccaria so freely acknowledged; the legal philosophy of “the immortal Montesquieu,”84 the libertarian passion of Rousseau’s Contrat social, the rationalist yet humane calculations of Helvétius are the visible raw materials of his book. Yet Dei delitti e delle pene impressed its readers as a splendid innovation and earned its author the kind of extravagant epithet of which the eighteenth century was so fond: Beccaria was, for Voltaire, a laborer “in behalf of reason and humanity,”85 and, for the German Aufklärer Hommel, the “Socrates of our epoch.”86 What lent Beccaria’s treatise the appearance of an originality he never claimed for it was the energy of its language, the cumulative logic of its case, the economy of its formulations, and the apparent singlemindedness of its author.87 Dei delitti was like a drawing by a master: every line counted and every line was right. Diderot, highly sensitive to the music of language, noted a kind of rhythm in Beccaria’s treatise which led the author, and with him the reader, from calm reflection to passionate sympathy and back again, a “melody of sentiment”88 that revealed, and by revealing induced, enthusiasm for its enlightened teachings.
While the appeal of Beccaria’s treatise was in the main emotional, Beccaria hoped that it was scientific; he presents Dei delitti as a product of the science of man. The laws under which men live in the eighteenth century are “the dregs of the most barbarous of centuries”89; their fatal flaw lies not so much in their specifically medieval origins as in their slavish dependence on tradition. These laws were first made by caprice and fortune, generally in favor of the very men and groups whose interest it is to set themselves against rational or progressive legislation; and these laws have been changed, when they have been changed at all, through half-blind trial and error, and in response to the demands and needs of the powerful. Men need a dispassionate study of human nature, but precisely what they need they have not had. Yet it is in their grasp: the modern science of government has at its disposal the principle by which all law must be judged: “La massima felicità divisa nel maggior numero—the greatest happiness divided among the greatest number.”90
It is evident from Beccaria’s rhetoric, his appeal to a single principle and its corollaries, and his infatuation with geometry that his science of law was rather less empirical and more deductive than the comparative sociology of Montesquieu and of the Scottish school. Indeed, Beccaria relied more heavily on logical coherence and verbal vehemence than on detailed case histories; not that he invented judicial cruelty, indifference, irrationality—they were all there, in abundance—but he offered partial observations as total history. And Beccaria’s science was less than scientific in another respect. Like the other philosophes, Beccaria sought to make his legal science objective without making it indifferent to man; its very objectivity was to guarantee its humanity. But in actuality, when Beccaria found objectivity and humanity in conflict, humanity won out. Beccaria’s emotions are never in doubt; they inform every page of his work and guide his most theoretical questions: is torture just and effective? Is the death penalty necessary and useful to an orderly society? How do we prevent crime? What is the influence of punishment on behavior? What is a reasonable scale of penalties? These questions, Beccaria insists, deserve not metaphysics, “sophisms,” or “seductive eloquence,” but “geometric precision.”91
Since one man’s right to punish another is by no means self-evident, Beccaria seeks the basis of that right in the nature of political organization and the nature of man himself. His discoveries are, if not simpleminded, at least simplistic, but what they lose in subtlety they gain in clarity: in political theory, Beccaria belongs to the social contract school; in psychology, among the hedonists. Yet his simplicity does not lead him into naïve optimism: he refuses to believe that men voluntarily surrendered their freedom for the common good. “That chimera exists only in romances.”92 Quite the contrary: men, especially the multitude, excited by prospects of short-range advantages and private profit, often seek to escape the obligations that an ordered society must impose on them, and to plunge it back into the chaos of the state of nature. Hence punishments are absolutely indispensable, a conclusion Beccaria obviously adopts with reluctance, in obedience to his self-proclaimed realism. Let others write “romances”; he aspires to writing the science of justice.
But while punishment is an indispensable element in all societies, it must be minimal for the objective it is intended to achieve. “Every act of authority of man over man which does not derive from absolute necessity,” Beccaria writes, generalizing a dictum of Montesquieu’s, “is tyrannical”93; penalties justify themselves, as it were, to the degree that the sovereign guarantees his subjects liberty and security. Here is the counterpart of Beccaria’s utilitarian principle prescribing the greatest happiness for the greatest number: the law must parcel out for the smallest possible amount of suffering for the smallest possible number.
Having established the right to punishment in, and through, a rational and enlightened jurisprudence, Beccaria in effect draws two corollaries, each of them an aspect of what we have come to call the rule of law. Punishment can be decreed only by the law and judges have no right to interpret the law under which they decide a case; and if the severity of a certain punishment can be shown to be useless, then it is irrational, contrary to justice, fit not for happy free men but for a “herd of slaves.”94 These corollaries shape the rest of Beccaria’s treatise; they appear and reappear as leading themes with recognizable, well-disciplined variations.
First: the rule of law in a state produces the life of reason for the citizen, and Beccaria devotes much effort to discovering the conditions under which such a life can flourish. Reason depends on prediction. It follows that the laws must be written in the ordinary language of the country; they must be clear and open, a “solemn and public book” rather than a private possession. In full agreement with the other philosophes, Beccaria rejoiced in the invention of printing, which, he thought, had been responsible for the decline of superstition and barbarity. Publicity and accessibility reduce crime as, and because, they increase the range of reason: “The larger the number of those who understand, and hold in their hands, the sacred code of the laws, the rarer crimes will become, for there can be no doubt that ignorance about, and uncertainty of, punishments enhance the eloquence of the passions.”95
Inevitably, of course, in the best-regulated and most humane legal systems, some men will find themselves in court, and the life of reason must function there as well. Since it is essential that men be enabled to calculate the consequences of their actions, only that conduct specifically prohibited by law can draw penalties of any sort, penalties must be specified in the law, and judges must be restricted to finding facts. To give them greater leeway than that, to permit them to imprison accused men, set penalties, or interpret the laws on their own authority is to make them into tyrants who subject their victims to their moods, their prejudices, their changes of opinion. Judges are not legislators and must not become legislators; conversely, the sovereign is not a judge and must not become a judge; he must restrict himself to framing general laws that bind all citizens alike. When all these conditions have been observed, “citizens acquire personal security, just, because it is the reason why men are in society, and useful, because it allows them to calculate with precision the inconveniencies attaching to a misdeed.”96
To find facts on a rational basis, the judge must be guided by rational procedures. In this sensitive region, procedure, Beccaria finds the courts of Europe sadly wanting, and his dismay leads him to some of his most pointed observations. They are even more pointed than they appear to be: a judge in Beccaria’s Lombardy, or elsewhere in the Italian states, or across the civilized world, could recognize his remarks as directed against himself. Beccaria was too sweeping in his indictment, severe with the lapses and forgetful of the merits of current practice. Yet his enthusiastic and, to his opponents, ungenerous criticisms were not a fantasy; they directly contradicted the legal assumptions and courtroom procedures of his day. A defendant must be presumed innocent until he is proved guilty—generally, he was presumed guilty until he was found innocent and not free of suspicion even then; judicial inquiries must be short—they were long; imprisonment before trial must count as part of the sentence—it was normally ignored after conviction; self-incrimination, extorted confessions, and torture are as inhumane as they are unreliable—both were perfectly standard everywhere; the more atrocious the crime, the more reliable the testimony must be—current practice, in its avidity to find culprits, became less and less stringent in its demands for truthfulness or even probability the more heinous the alleged offense; accusations and trials must be public—the use of secret informers and trials behind closed doors were widespread. The very abuses to which Beccaria most fiercely objected as most manifest—the extortion of confession, the free employment of secret calumniators, the caprice of incompetent judges whose only qualification was that they had bought their place, and, worst of all, torture, to which Beccaria devotes a brilliant, vehement, wholly uncompromising chapter—were the very props of justice in Beccaria’s time. When Beccaria laments “the moans of the weak, sacrificed to cruel ignorance and opulent laziness; the barbarous torments, multiplied with lavish and useless severity, for crimes either not proved or imaginary; the squalor and horrors of a prison, increased by that cruellest tormentor of the miserable, uncertainty,”97 he was addressing the men who ruled his Lombardy; the liberalism of Count Firmian, the Hapsburg governor, and of his chief, Count Kaunitz, did not reach into the courts and the prisons.
Beccaria’s second corollary, that punishment must be rational, is the counterpart to the first, that criminal law and procedure must be rational: reasonableness is, for Beccaria, the pervasive, dominant ideal. The sole purpose of punishment, he argues, is to reduce the harm to which society is exposed by crime; in a radical break with older conceptions and in wholehearted agreement with Montesquieu, Beccaria sees punishment not as a measure of vengeance but as a measure of prevention. “It is better to prevent crimes than to punish them,”98 better to educate people and give them greater liberty than to seek conformity by repression. The logic of leniency follows from these considerations without strain: a crime is an act that harms society; the more harmful the act the greater is the stake of society in its prevention; hence “there must be a proportion between crimes and punishments.”99 The only proper test of a penalty is a pragmatic one: if it deters crime at minimum expense to all, it is justifiable—all else is tyranny. And the only proper guide to a penalty is man’s psychological make-up: since man seeks pleasure and shuns pain, the legislator must, in laying down his scale of punishments, proportion pain to the pleasure that a crime would give the potential offender. Once again following Montesquieu, Beccaria insists that if punishments are all equally savage, men will prefer the greater crime to the lesser one. Proportionality and its chosen companion, leniency, are desirable because they work. With all his cautious estimate of human nature, Beccaria never wholly freed himself from the optimistic expectation that men reason about consequences and will permit themselves to be deterred from a criminal act by appropriate punishment. Yet his rationalism is far from facile or complete: “It is impossible,” he noted with some caution, “to prevent all disorders in the universal combat of human passions. They increase in a ratio compounded of population and the conflicts of private interests, which it is not possible to turn with geometric precision in the direction of public utility. For mathematical exactitude we must substitute, in the arithmetic of politics, the calculus of probabilities.”100 Like the other philosophes, Beccaria-thought of the science of society as less exact than the science of nature.
In repeatedly defining a crime as an act that does harm to society, Beccaria took “harm” quite literally. What matters is not the intention of the offender, but his effect on society. The rank of the criminal is irrelevant: an aristocrat must be punished for his crimes quite as much as a commoner. The state has limited interest in injuries to honor, little interest in sexual offenses, and no interest in suicide; like Montesquieu, Beccaria finds it essential to reduce not merely the severity of punishments but the list of offenses by redefining the very nature of crime. Once again, he resorts to the principles of the rule of law: any act not explicitly interdicted is permitted; a vague word like “vice” must never be invoked to punish an individual for doing what no one has forbidden.
While the humane intentions of this utilitarian philosophy are obvious on every page of Dei delitti, they are nowhere more dramatically in evidence than in Beccaria’s passionate attack on the death penalty. This chapter is, with the chapter on torture, the longest chapter in his treatise. The death penalty, Beccaria argues, is not a right but a usurpation; it is, in his felicitous phrase, “the war of a nation against a citizen because it has judged that the destruction of his being is necessary or useful.”101 But the death penalty, presumed to be both, is neither. The only possible exceptions are a time of anarchy, or a time of national peril when a prominent citizen, even in prison, can continue his dangerous machinations. At all other times, there can be no excuse for it. Setting aside his rationalism, Beccaria now insists that the death penalty is not a deterrent: it is so extreme, so quickly over with, that a potential criminal will not be frightened by its specter. Besides, it is a mere entertainment for some and a source of mixed contempt and compassion for others: witnesses do not experience the beneficial fear that it is supposed to arouse. Finally, the death penalty gives the public an example of barbarity; it is a crime committed by dignified public officials, it induces disrespect for law and a cynical estimate of public policy, and invites imitation. There must be an end to such needless and repulsive cruelty.
Beccaria had some sense of his cause, but limited confidence in his effectiveness: “A philosopher’s voice is too weak for the tumults and the shouting of so many men guided by blind habit. But the few wise men scattered over the face of the earth will echo me in their hearts.”102 It was for these wise men that Beccaria professed to write, but diffident, often depressed, always reluctant to enter public controversy, he wrote, it seems, mainly for himself. In an autobiographical passage, he poured out once again the passion that had really driven him—not science but humanity: “If I have no other merit than to have been the first to offer Italy, with some good evidence, what other nations have dared to write and are beginning to practice, I should consider myself fortunate; but if, by upholding the rights of man and of unconquerable truth, I should contribute to saving, from the spasms and agonies of death, some miserable victim of tyranny or of equally fatal ignorance, the thanks and tears of one innocent man in his transports of joy would console me for the disdain of all mankind.”103
Beccaria’s timid aspiration was touching but needlessly self-deprecating. His book aroused immediate attention and caused widespread controversy in Italy; only two years after its publication it was in its sixth printing. It was greeted in France, especially by the philosophes, with authentic and unreserved applause; it was extensively and enthusiastically reviewed in both learned and popular journals. Grimm hinted in the couse of an extensive exposition that it would be most desirable “if all the legislators of Europe would take M. Beccaria’s ideas into consideration.”104 D’Alembert, for whom Beccaria in his turn professed the highest esteem, let it be known that he was “enchanted” and “enthusiastic,” and that he had spread news of the book, “which should give its author an immortal reputation,” among a number of philosophes.105 Voltaire supplied Dei delitti with a commentary in which he accepted Beccaria’s reform program point by point, and applied it to France. It was a good time for such application: Voltaire was in the midst of another cause célèbre, the case of the adolescent chevalier de la Barre, tortured and executed for blasphemy. Morellet’s French translation of late 1765 was widely criticized for its arbitrary reshuffling of Beccaria’s chapters, but it made the book accessible to those who did not read Italian. In Great Britain, Jeremy Bentham credited Beccaria for setting him “on the principle of utility” and for suggesting the calculus of pleasures.106 Other British legal reformers admired his humanity, copied his reasoning, and made it relevant to their domestic legal scene. In the American colonies, where young Jefferson copied passages from Dei delitti by the page and became an outspoken opponent of the death penalty, it was the same story: wide popularity and largely uncritical admiration. Catherine of Russia professed herself a follower: her famous Nakaz of 1768, the instructions to her Commission to draw up a legal code, reproduced substantial portions of Dei delitti.
Much of this shower of adulation may be discounted as a product of the eighteenth-century capacity for facile enthusiasm. Talk was cheap: Catherine of Russia, for one, received credit for reforms she did not intend to carry out; nothing at all came of Catherine’s well-advertised enterprise of reforming the legal code, and it is notorious that the peasants, the vast majority of Russians, found themselves more deeply in slavery during, and after, than before, the reign of that philosophical Tsarina, admirer of Montesquieu, friend of Voltaire, patron of Diderot but servant, first and last, of her own pleasures and her own power. Everywhere, men found it easier to praise Beccaria than to put his program into action. Still, Beccaria’s practical impact remained gratifying and extensive. He educated prolific and influential reformers like Bentham and Eden and Romilly in England, and through them his ideas gradually but drastically reformed the English law. His vast reputation and the many editions and translations of his book made the idea of reform popular, palatable, respectable, almost fashionable.
Nor is this all. When in 1772 Gustavus III abolished torture in Sweden—the very year that the Lombard Senate voted to retain it—he explicitly credited Beccaria’s influence; whatever slow, halting improvements were made in the Austrian lands under Maria Theresa and Joseph II at least indirectly reflected Beccaria’s work. But the finest monument to Beccaria is the Tuscan code promulgated in 1786 by Beccaria’s declared disciple, Archduke Leopold. In its Preamble, Leopold claimed that he had been interested in legal reform since his accession in 1765, and he reminded his people that he had already abolished torture and the death penalty by special edict. But whatever the origins of Leopold’s concern, the code mirrored the mind and followed the prescriptions of Beccaria. It reiterated, in grave and general language, Leopold’s earlier edicts: it prohibited torture, eliminated the crime of lèse-majesté from the statute books, removed confiscation as an unjust burden on the family of a convicted criminal, and confirmed the abolition of the death penalty. In obedience to Beccaria’s philosophy, the code directed itself at the prevention rather than the avenging of crime, sought to proportion punishment to offense, and to protect accused persons from irresponsible denunciation and inquisitorial procedures. Doubtless, the code reflected not simply the theories of Beccaria, but Leopold’s successful experiments with leniency, and his humane and reformist temper as well. But precisely this combination of philosophical theory, administrative experience, and royal temperament suited the philosophes’ political ideas to perfection. That such a combination was desirable was a point on which the men of the Enlightenment could agree without hesitation, as they could agree on the contents of their political program. But such a combination was rare; it was, in fact, uniquely embodied in Archduke Leopold of Tuscany. What was to be done in the other countries? That was a question on which the philosophes found that no agreement was possible.
1 See above, chap. iv, section 1.
2 Sengle: Wieland, 299.
3 Lettre VI, Lettres philosophiques, I, 74. To reiterate a formula I advanced in the first volume of this essay: “Relativism, Eclecticism, and toleration are so intimately related that they cannot be strictly separated even in thought. Relativism is a way of looking at the world, the recognition that no single set of convictions has absolute validity; Eclecticism is the philosophical method consequent on relativism—since no system has the whole truth, and most systems have some truth, discriminating selection among systems is the only valid procedure. Toleration, finally, is the political counterpart of this world view and this method: it is a policy for a large and varied society.” The Rise of Modern Paganism, 163.
4 See below, 459–60.
5 See Paul Rilla: Lessing und sein Zeitalter (1960), 74–5.
6 To Madame de Maux (?) (beginning of November 1769). Correspondance, IX, 196–7.
7 An Essay on the History of Civil Society, 103.
8 Quoted in Kettler: Social and Political Thought of Adam Ferguson, 207–8.
9 Wealth of Nations, 872, 878.
10 Considérations sur le gouvernement de Pologne et sur sa réformation projetée, in Œuvres, III, 1013.
11 “Que l’état de guerre naît de l’état social,” a fragment in ibid., 607.
12 Quoted in Merle L. Perkins: Voltaire’s Concept of International Order, VS, XXXVI (1965), 104. Despite these reservations, Voltaire thought well of the abbé’s humanitarianism (see above, 37).
13 Kant: Zum ewigen Frieden, in Werke, VI, 427. “Zum” in Zum ewigen Frieden means both “to” and “at the.”
14 Ibid., VI, 431.
15 Ibid., 428.
16 Ibid., 436.
17 Ibid., 456.
18 The phrase is David Brion Davis’s: The Problem of Slavery in Western Culture (1966), 294.
19 The Origin of the Distinction of Ranks (2d edn., 1779, reprinted in its entirety in William C. Lehmann: John Millar of Glasgow, 1735–1801 [1960]), 311.
20 February 17, 1773. Letters, VIII, 241.
21 Walpole to Rev. William Mason, February 14, 1774. Ibid., 423.
22 Henri Sée: La France économique et sociale au XVIIIe siècle (5th edn., 1952), 121.
23 Lettres persanes, No. 75, in Œuvres, I, part 3, 155–6.
24 Ibid., No. 118, in Œuvres, I, part 3, 236–7.
25 See Shackleton: Montesquieu, 237.
26 De l’esprit des lois, Book XV, chap. v, in Œuvres, I, part 1, 330–1.
27 Commentaire sur quelques principales maximes de l’Esprit des lois (1777), in Œuvres, XXX, 445.
28 Quoted in Hans Wolpe: Raynal et sa machine de guerre, 155.
29 Arthur M. Wilson, who quotes this passage from the Encyclopédie article “Humaine espèce,” says that it is “probably” by Diderot. See “The Development and Scope of Diderot’s Political Thought,” VS, XXVII (1963), 1883.
30 “Esclave,” Questions sur l’Encyclopédie, in Œuvres, XVIII, 599–606.
31 “Traité des Nègres,” Encyclopédie, quoted in Davis: Problem of Slavery in Western Culture, 416.
32 Du Contrat social, in Œuvres, III, 353.
33 Ibid., 356.
34 Ibid.
35 See Lettres persanes, Nos. 115 and 122, in Œuvres, I, part 3, 229–30, 244–5.
36 “Of the Populousness of Ancient Nations,” Works, III, 384; for Hume’s general discussion of slavery, see 384–97.
37 Distinction of Ranks, in Lehmann: Millar, 299.
38 Ibid., 303, 302.
39 Ibid., 302.
40 Ibid., 316–17.
41 Ibid., 320.
42 Ibid., 316.
43 Wealth of Nations, 81.
44 Ibid., 365.
45 Ibid.
46 In his Theory of Moral Sentiments, 299–300, Adam Smith sentimentalized the African, singled him out for his “magnanimity,” and spoke of African slaves transported to American as “nations of heroes,” subjected to “sordid masters,” to “the refuse of the gaols of Europe, to wretches who possess the virtues neither of the countries which they came from, nor of those which they go to.”
47 Quoted in C. M. MacInnes: A Gateway to Empire (1939), 193.
48 Quoted in Eric Williams: Capitalism and Slavery (1944), 51.
49 “In our country, the abbé Raynal remains a far more isolated figure than the group of English antislavery advocates.” Gaston-Martin: Nantes au XVIIIe siècle: L’ère des Négriers (1714–1774) (1931), 427. On the other hand, Raynal’s History was widely read in England, and seems to have had considerable effect there.
50 Life of Johnson, III, 200. Under September 23, 1777.
51 Ibid., 201.
52 Quoted in Donald J. Greene: The Politics of Samuel Johnson (1960), 270.
53 See Life of Johnson, II, 477, where this letter of March 4, 1773, is quoted.
54 Ibid., III, 202–3. Under September 23, 1777.
55 Ibid., 201–4.
56 See La Société féodale, 2 vols. (1939–40), II, 117.
57 Quoted in Leon Radzinowicz: A History of English Criminal Law and Its Administration from 1750, 3 vols. (1948–56), I, 288 n.
58 Alexander Pope: Rape of the Lock, III, 21–2.
59 Dichtung und Wahrheit, in Gedenkausgabe, X, 576.
60 Radzinowicz: History of English Criminal Law, I, 148.
61 Lettres persanes, No. 80, in Œuvres, I, part 3, 164.
62 Ibid., No. 85, in Œuvres, I, part 3, 174.
63 Franz Neumann: “Introduction,” to Montesquieu’s Spirit of the Laws, lix.
64De l’esprit des lois, book XII, chap. ii, in Œuvres, I, part 1, 251.
65 Ibid.
66 Ibid., book XII, chap. iv, in Œuvres, I, part 1, 254.
67 Ibid., 255–6.
68 Ibid., 256.
69 Ibid., book VI, chap. ix, in Œuvres, I, part 1, 109.
70 Ibid., chap. xii, in Œuvres, part 1, 113–14.
71 Ibid., chap. xvi, in Œuvres, part 1, 121.
72 Ibid., book XII, chap. v, in Œuvres, part 1, 257–8.
73 Ibid., chap. vi, in Œuvres, part 1, 258.
74 Correspondance littéraire, I, 450.
75 De l’esprit des lois, book XII, chap. vii, in Œuvres, I, part 1, 260.
76 Ibid., chap. xi, in Œuvres, I, part 1, 264.
77 Ibid., chap. xii, in Œuvres, I, part 1, 265.
78 On May 25, 1778, five days before his death, when the end was obviously near, Voltaire received word that one of his many legal battles, this one in behalf of General Lally, whose name he had struggled to clear for ten years, had been won at last. The old man roused himself from his dying torpor for a final effort to congratulate the general’s son; now, he wrote, he was ready to die content. It was his last letter. See May 26 (1778). Correspondence, XCVIII, 247.
79 Voltaire to Camp, March 27 (1762). Ibid., XLVIII, 173.
80 (August 8, 1762). Correspondance, IV, 97.
81 See ibid., 97 n.; and Voltaire to d’Alembert, September 15 (1762). Correspondence, L, 29.
82 Traité sur la tolérance … (1763), in Œuvres, XXV, 31.
83 See my earlier discussion of Beccaria in The Rise of Modern Paganism, 10–22.
84 See above, 325.
85 Voltaire to Beccaria, May 30, 1768. Correspondence, LXIX, 159.
86 Quoted in Dei delitti, 623.
87 That singlemindedness was more apparent than real; Beccaria had to be driven into his achievement by his close associates, the Verri brothers. See below, 444–5.
88 See Diderot: Œuvres, IV, 60; in Dei delitti, 405.
89 Dei delitti, 31.
90 Ibid., 9.
91 Ibid., 30.
92 Ibid., 12.
93 Ibid.
94 Ibid., 15. While Beccaria speaks of “four corollaries,” I have combined them into two for the sake of clarity.
95 Ibid., 18.
96 Ibid., 17.
97 Ibid., 10.
98 Ibid., 96.
99 Ibid., 19.
100 Ibid., 19–20.
101 Ibid., 62.
102 Ibid., 69.
103 Ibid., 30–1. John Adams was apparently so deeply impressed with this formulation that he used most of it (omitting, of course, the references to Italy) when he defended the British soldiers involved in the Boston Massacre. See Henry Paolucci’s translation and edition of Beccaria’s On Crimes and Punishments (1963), xxi.
104 See Dei delitti, 320.
105 See ibid., 313.
106 See Mary P. Mack: Jeremy Bentham: An Odyssey of Ideas (1963), 104; Beccaria was, to be sure, in good company, including among others Montesquieu and above all Helvétius, but Beccaria’s importance to Bentham remained great: he did not scruple to call Beccaria “My master, first evangelist of reason, who hast raised thy Italy so much above England and also France.…” Coleman Phillipson: Three Criminal Law Reformers: Beccaria, Bentham, Romilly (1923), 92.