Des effets particuliers à chacun des principaux éléments de force dont une loi se compose ; et de l’

CHAP. 19: > Of the particular effects of each of the principal elements of force of which a law is composed; and of the influence that knowledge of these effects exercises on the judgment of the causes that produce them.

A law, in the most general sense of the word, is a power that is composed of the union of several diverse forces, and that acts in the same way, in all similar cases. In this sense, one can say that economy is a law among an enlightened nation, where justice is administered in an impartial manner. The forces of which this law is composed are, on the one hand, all the advantages that result from this habit: these are the rewards attached to its observance. They are, on the other hand, the privations and sufferings that follow in the wake of prodigality: these are the punishments attached to its violation. The pains and rewards whose concurrence forms the law are as infallible in this case as they can be in any. They are distributed over all the members of society, without distinction of rank or birth, of ignorance or instruction. None has to fear either the delays of chicanery or the partiality of magistrates: justice and equality reign without opposition and without obstacle.

But, in usual language, one does not give to the word law such a general sense; it is indeed a union of forces analogous to those of which I have just spoken, and whose concurrence tends to form our habits; but, for these forces to take the name of law, in the sense that one ordinarily gives to this word, other forces must be joined to them: these are those that result from the regular action of the government, taking this word in its most extended sense. Thus, the same forces whose union forms our moral habits become a part of the law, whenever the government lends it its support; economy, for example, would be a law in the vulgar sense of this word, if the force of public authority were employed to oblige citizens to make savings; prodigality would be a law, if the same force were employed to render more active the causes that act in favor of this habit.

It results from this that the elements of calculation that enter into the assessment of a law cannot be different from those that enter into the assessment of a habit or an action: they are exactly the same phenomena to consider, plus those that result from the application of the force of public authority. Suppose, for example, that a government makes a duty of economy; that it orders that every individual enjoying such a fortune shall be obliged to set aside annually from his revenues such a sum, and to deposit it in a savings bank: it is clear that, to assess this law, one will have only to take all the elements that enter into the assessment of the habit of economy, and to add to them the goods and evils that result from the use of public force. The calculation would be still simpler, if one were to set aside the pleasures and pains that are the natural result of the habit, and if one were to calculate separately the sum of goods and evils that result exclusively from the application of the forces at the government's disposal. These two procedures must evidently lead to the same result; the latter is, however, the simpler and the surer.

The diverse forces whose union forms the power to which we give the name of law may not all produce an equal quantity of goods and evils; some may produce a little more good, others a little more evil. We have seen, for example, what are the natural results of economy, when no artificial force disturbs them; the pleasures exceed the pains in an immense proportion. Suppose they are as twenty is to five, the benefit will be fifteen; if the government comes to add its forces to those that naturally tend to form the same habit, the good that this increment of force will produce may be only two, while the harm may be twelve; the loss will then be ten, and the fifteen one had of benefit will be reduced to five. However, if one considers the force of the government as the sole acting cause, if one attributes to this cause all the goods and all the evils, one will still judge it salutary, since the former will be to the latter as twenty-two is to seventeen; thus, one will attribute a benefit of five to a measure that, in reality, produces a loss of ten. As this distinction between the goods and evils produced by the interests or by the inclinations natural to man, and the goods and evils produced by the public force, with the aid of which one seconds or thwarts these interests or these inclinations, is of the highest importance, I will try to make it better understood by a remarkable example.

The laws of all the peoples of Europe make it a duty for parents to feed, maintain, and raise their children; they punish infanticide with very severe penalties. These laws, like all the others, are a power that is composed of a multitude of forces; and, among the number of these forces, we must count those that the government employs to render the others more effective. In considering the general effects that these laws produce, one finds them to be immense; they are composed of a multitude of evils and goods. The evils consist in the pains that parents are obliged to take to raise their children; the goods consist in the enjoyments that the ones and the others experience during the course of their lives. One could even say, in more general terms, that all the evils to which men are subject, and all the goods they enjoy, are the consequences of these laws; since, if the species were not preserved, there would exist neither good nor evil for individuals.

But, in these two immense sums of goods and evils, what is the share of each that must be attributed to the portion of forces that is inherent in human nature, and that acts independently of the government? What is the portion that belongs to the direct and immediate action that public authority exercises on parents, whether to oblige them to take care of their children, or to prevent them from destroying them? The persons who imagine that nothing moves in society except by the impulse of public authority, and that the object of the acts to which they exclusively give the name of laws is to repress the strongest inclinations of man, will not doubt that the portion of forces that belongs to the government is the most active and the most powerful. One could not oppose to these persons the small number of cases in which it is necessary to resort to the action of public authority to oblige parents to take care of their children, or to repress the attacks they make on their safety or their life; since they would answer that it is enough for the action of public force to be employed in a single case to prevent that case from recurring. One must therefore judge the influence of this action, not by what happens in the countries where it is exercised, but by what takes place in the countries where it has not been admitted [92].

In studying the history of legislation, one perceives that the excesses committed by parents on their children were the last that governments felt the need to repress. The action of parents on their children did not, for a long time, have other limits than those given to it by their affections and their forces. Not only does no public authority watch over their preservation among barbarous peoples, but even among peoples whom we are accustomed to consider as civilized, it is only very late that magistrates have believed it necessary to intervene to regulate the relations that must exist between parents and children. A Roman, in the time of the republic, could dispose of his descendants in as absolute a manner as of any kind of property; he could sell them, give them away, kill them, without the authority finding anything to object to. His power had no more limits in this regard than has the power of the African barbarian, who sells his son to the no less barbarian trafficker of Europe, whenever the latter consents to pay him the price for it. We do not see, however, that the abuse of this power was an obstacle to the growth of the Roman republic, to the preservation and prosperity of families. The first attacks on paternal power were encroachments of despotism. The emperors substituted themselves for the parents, and the peoples are far from having gained by it [93].

In China, no limit is placed by the government on paternal authority; no act represses the exposure of children, each can abandon his own and let them perish from misery. According to the most exact documents we have on this country, the capital alone contains three million inhabitants [94], and the entire population of the empire rises to three hundred fifty-three million [95]. Police officers patrol, every morning, the streets of Pekin, to remove the children who have been exposed during the night, and as all these children are carried to the same place, to be doomed to destruction there, nothing has been easier than to ascertain their number. In Pekin alone, this number rises, on average, to twenty-four, about nine thousand in the course of the year. The number of those who are exposed in the rest of the empire is estimated at only an equal number; so that the three million of the capital furnish a number similar to that given by the three hundred fifty million who inhabit the provinces [96].

The number of children exposed annually throughout China is therefore estimated at eighteen thousand. But, in this number, one must include stillborn children, those who die in childbirth, those who die in the first months of their birth and whom the parents do not have the means or do not want to take the trouble to have buried, those who are born malformed, and whom the parents' care could not preserve, those, finally, who belong to parents so poor that they would die of misery a few moments after their birth, even if they were not exposed [97]. There is no doubt that the greatest number of abandoned children is in one of these cases: it cannot be otherwise in a country where the lowest classes of the population live in the most frightful misery, devouring the remains of putrefied animals that are thrown on the refuse heap or into the rivers, the chrysalises of silkworms, the worms and larvae of insects they seek in the earth, and even the vermin by which they themselves are gnawed [98].

Suppose now that the Chinese government, instead of leaving to parents a discretionary power over their children, imitates the European governments; that it declares that the father and mother are bound to feed, maintain, and raise their children; that it pronounces severe penalties against exposure; that it even establishes the death penalty against infanticide; that it employs the force at its disposal to have the declarations it will have made, the penalties it will have created, put into execution: what will be the sum of good and the sum of evil that must be attributed to the use of its authority or its force in such a circumstance?

Will all the children of the Chinese empire be better fed, better clothed, better raised? No, assuredly; for the declaration of the government and the force that, on this occasion, it will make use of, will not increase by a grain of wheat or a thread of linen the revenues of the parents; and without an increase in revenue, they could not live more at ease. In China, as in Europe, the well-being of children is in proportion to the fortune, the enlightenment, and the moral dispositions of their parents, and not in proportion to the surveillance and the force of public authority. When a child lacks clothing, food, medicine, a father consults the resources he possesses to know what must be done, but he inquires little about what the ordinances of the prince prescribe to him. If, in such a circumstance, he does not do all that he can, it is not possible for a magistrate to make up for it; since he cannot at every instant be judge, either of the father's resources, or of the children's needs. The declaration and the force of the government could therefore have no influence on the well-being of the children whom the parents have resolved to preserve if they have the means. Nor could they have any influence on their preservation, since they are preserved without the government meddling in it.

The benefits of public authority must therefore be restricted to the approximately eighteen thousand whom the parents expose annually. But these benefits are still null for those who died before being born, for those who die in the labor of childbirth, for those who are not born viable or who survive only a few days after their birth. In estimating at two-thirds the number of children who are in one of these cases, one remains far below the truth, since, all things being in proportion, this number would be much greater in Europe; there remain, therefore, about six thousand individuals in whose favor the government's protection might be good for something.

But one must still subtract from this number those whose parents do not have the means to sustain their existence; to order, in such a case, parents to feed and raise their children, and not to furnish them the means, is to give a useless order; one might as well order sick people to be well, or beggars, to whom one refuses alms, to have good clothes, healthy food, and comfortable lodgings. The prohibition of exposure, in such a case, can have no other effect than to change the place of a deathbed: the child who would have perished on rags before the door of a house will perish on rags inside. The number of those whom misery thus condemns to death from their birth must be very great, in a country where the population is immense, where the lowest class is excessively numerous and miserable, and where there exist no hospitals to receive the children whose mothers die in childbirth, or a short time after delivery, and whose fathers do not have the means to pay a wet nurse. Finally, one must subtract from the number of those for whom the government's action would be useful, all those who would be exposed or destroyed despite the prohibitions of public authority. This number would still be rather large, comparatively to the number of those whom the parents would wish not to raise, in a country where an immense population is gathered in a very restricted space, where the investigation and discovery of offenses would, consequently, be very difficult, where the magistrates would have very little interest in investigating them, and where misery and despotism greatly weaken the fear of punishments [99].The benefit resulting from the government’s action is thus confined to an excessively small number, compared to the total number of the population. To appreciate this benefit, four things are to be considered: the evils that are, for the children, the consequence of exposure, and from which public authority delivers them; the probable number of years they have to live; the goods and evils that will be their lot in the course of life; the pains and enjoyments that result, for their parents, from their preservation.

The pains that are the natural consequence of exposure are purely physical; for a newborn child can have neither foresight, nor fear, nor affection. The intensity of these pains can be measured only by the degree and by the duration of sensitivity: if it is difficult to evaluate the degree of sensitivity, it is easy, at least, to measure its duration. The Chinese do not appear to rate either one very highly:

“Habit,” says Lord Macartney, “seems to have taught them to believe that life only becomes truly precious, and the lack of attention to it criminal, after it has lasted long enough to give the soul and the sentiments time to develop; but that existence, at its dawn, can be sacrificed without scruple, although not without reluctance [100].”

The probability of the duration of life must be calculated by the weakness of the constitution that children bring at birth, and by the diseases they inherit from their parents. This weakness and these diseases must be considerable, if one is to judge by the constitution of those who gave them life. Among the poorest classes, among the fishermen, misery announces itself by thinness, pallor, and scrofulous diseases [101]. Such unhealthy and weak individuals could not give birth to robust children. The probability of the duration of life must be calculated, moreover, by the influence exercised, on unhealthy and poorly constituted children, by the diseases natural to childhood, by food that is not abundant and often harmful, and by the lack of attention, cleanliness, and medicine. Famines are not rare in China, and the first individuals that such calamities carry off, in all countries, are always those who are the weakest, the most poorly constituted, and the poorest. The mortality produced among children by this single cause must be greater, in this country, than in any of the countries of Europe, since the number of the poor there is immense, since begging is unknown there, and since no aid is granted to the unfortunate, except by the members of their families [102].

The pains and enjoyments of the individuals who are not carried off, in the first years of their childhood, by these diverse causes of mortality, can be evaluated by the pleasures and by the sorrows that, in the great cities of Europe, are the lot of the most miserable classes. It is permissible, at least, to doubt whether the sum of the enjoyments they experience and cause to be experienced exceeds the sum of the evils to which they are subject or which they occasion to others, and whether, consequently, their existence is a good or an evil.

The pains attached to the forced preservation of a child whom one believes one does not have the means or the strength to raise would seem to exceed the pleasures that must be its consequence, if one were to rely on the judgment of the individuals on whom the government’s action is necessary. But this would be a bad means of assessment: the individual on whom public authority acts may be frightened by the immediate pains and difficulties to which he is obliged to submit, and not perceive the distant enjoyments that will be their result. Family affections, like affections of all kinds, develop and strengthen at the same time as the individuals who are their object; but when the pains they occasion become excessive, and are at the same time believed to be fruitless, they greatly diminish their intensity and often even their duration.

Thus, in calculating the advantages that would be produced in a country such as China, populated by three hundred fifty-three million inhabitants, by the action of the government employed either to compel parents to feed and raise their children, or to repress exposure and infanticide, one finds that these advantages would be felt at most by a few hundred individuals of the most miserable class. This good would be reduced to a simple prolongation of existence, a prolongation that would almost always be accompanied by more evils than goods. This good would perhaps not be felt by one single individual out of two hundred thousand, and it would be reduced to almost nothing [103].

Such are the advantages that the government’s action could produce if it came to join the diverse sentiments that act upon men and determine them to watch over the preservation of their species. It remains to know what is the sum of evil at the price of which this good would be bought, and without which there would be no way to obtain it.

The codes of all the peoples of Europe declare that fathers and mothers are bound to feed and raise their children, according to their means; but, in all countries, the government’s action is completely null as long as the children cannot, by themselves, make any claim. It is, I believe, without example that a magistrate has ever introduced himself into the interior of a family to examine whether the children were fed, housed, clothed, and raised in conformity with their parents’ means. Magistrates may very often encounter poorly clothed children, feeding on bad food; none has yet taken it into his head to bring a father or a mother to justice to have them condemned to mend their clothes, or to give them better bread. If, then, the declarations of governments do no good, they do no harm either, and we are in this respect as free as the Chinese. The action of authority begins only when it is a question of repressing infanticide, or the suppression or substitution of a legitimate child's status; thus, it is solely the evil produced by this action that must be evaluated.

To make this evaluation, let us suppose that the Chinese government establishes against infanticide and the exposure of children penalties similar or analogous to those that exist in most European States. It will first be necessary to give magistrates the faculty to investigate and prosecute offenses, to have the individuals they believe guilty arrested, to summon and question witnesses. It will be necessary to institute procedures, to judge the accused, to inflict a punishment on the condemned.

The first evil that will result from such an establishment is a diminution of security for all persons who will be in a position to be accused, or merely suspected. The intensity and extent of this evil will be in proportion to the greater or lesser corruption of the magistrates, their partiality or their ignorance; in proportion to the corruption or partiality of the individuals capable of being called as witnesses, and finally, in proportion to the more or less grave vices of the procedure. This evil may affect more or less the entire part of the population endowed with some foresight.

The second evil will consist in that which will be produced by the errors, the caprices, the arbitrariness of the magistrates; and the same circumstances that will aggravate the first will serve to make the second more grave. This second kind of evil will be felt all the more keenly as it will fall on more developed individuals; it will spread to their relatives, to their friends, and may even affect the entire society, if doubts arise as to their guilt.

The third kind of evil will be in the pains suffered by the accused who are actually guilty, by the members of their family and by their friends; it will spread particularly to the children and to the ascendants who are still living.

The last kind of evil will consist in the pains and losses of time to which the magistrates, judicial agents, and witnesses will be subject, if their functions are gratuitous, or in the taxes that will have to be established, if they receive an indemnity proportionate to the sacrifices imposed on them.

I have not spoken of the accidental evils that all procedures occasion, such as perjuries, false testimonies, corruption and prevarication of magistrates, and the procedures and penalties that these evils render necessary, and which are all the more considerable as the population is more corrupt.

Thus, to analyze the power that watches over the preservation of the human race, and to which we give the name of law, it is necessary to decompose this power, and to consider separately the good and bad effects that result from each of the forces of which it is composed. There exist in man forces that determine him to feed and raise his children; these forces act on individuals of all races, under all forms of government, in all temperatures; they exist in Asia as in Europe, and everywhere they produce a mixture of goods and evils; but they do not act, in all circumstances, with equal energy; they are sometimes paralyzed by contrary forces. If, to give them more energy, a government comes to add its own forces, it will doubtless produce an increment of goods and evils; but it is not certain that the sum of the former will exceed that of the latter; the sum of the former may be only two, while the sum of the latter will be ten; there will then be a loss of eight, although the general result of all the forces is advantageous. If the Chinese government, for example, established penalties to prevent the exposure of children and to repress infanticide, one may doubt, without slandering it, whether the sum of good it would produce would not be exceeded by the sum of evil that would be an inevitable consequence of its measures.

I could have applied to other laws or even to political institutions the observations I have made on the law that determines parents to take care of their children, and, in many cases, the results would have been the same. I have chosen by preference an example where the action of public authority tends to second the forces that carry the human race toward its preservation. One has seen how small, in this case, is the influence of this action on the prosperity of peoples; it is a grain of sand carried to the seashore to contain its limits. The result would have been very different if I had chosen an example where the forces of authority tend to second bad inclinations, and find themselves in opposition to the forces that carry the human race toward its prosperity. One would have seen then that governments, so weak when they wish to do good, sometimes possess an immense influence for doing evil. From which one could draw the consequence that the less they make themselves felt, the more peoples prosper.

We have seen that, to judge the nature and effects of a law, one must decompose it, examine separately each of the forces of which it is formed, and investigate the consequences that are proper to each of these forces. These consequences can be only goods or evils; the question is to know whether, in the assessment of the ones and the others, peoples, when they are enlightened, bring into play the same elements of calculation that we have encountered in the assessment of our moral actions. To resolve this question, we have only to follow the method we previously employed to discover the elements that enter into the assessment of our habits; that is to say, we must first examine the effects of a law formerly judged good, and later abandoned as bad, and then expound the consequences of a law that has been established and strengthened as peoples have become more enlightened.

In order to better make understood how it is necessary to decompose a law to judge the effects that are proper to each of the principal elements of which it is formed, I have taken for an example the case where the government of an immense people has not judged it necessary to add its force to that which leads parents to raise their children. I will now take for an example a case where several governments have thought, on the contrary, that they ought to second, by their force, a tendency that leads peoples toward their prosperity.

Several ancient and modern governments, struck by the advantages of economy and the evils that prodigality entails, have wished to add the forces that are their own to those that are found in the nature of man, and which direct him toward the prosperity of his species. They have attempted to combat the inclination that leads peoples toward dissipation and ruin: they have, in consequence, forbidden to certain classes of the population foodstuffs, clothing, and dwellings that they judged too expensive; they have established what have been called sumptuary laws.

We can judge the effects that laws of this kind produce only by decomposing, as we have done previously, the diverse forces of which they are composed, and by examining separately the consequences that belong to each of these forces. The quantity of wealth whose preservation must be attributed to the precautions the government takes to prevent proprietors from consuming it, and the quantity of that which individuals preserve of their own accord, cannot be ascertained with the same exactitude as the number of children whose preservation is due to the direct action of the government, and the number of those whom parents preserve without the authority meddling in it. It is, however, easy for us to convince ourselves that the proportion is nearly the same in both cases.

Several governments of Greece had attempted to repress the expenses of private individuals, to oblige them to preserve their wealth. The Romans followed their example, and their sumptuary laws still existed at the end of the republic. It was by virtue of these laws that Caesar forbade several classes of citizens the use of litters, purple, and pearls, that he had prohibited foodstuffs seized in the markets and brought to his home by his spies, and that he even had them seized in the citizens’ homes by soldiers or by lictors [104].

Almost all the governments of Europe formerly took analogous measures to watch over the preservation of the wealth of their States. Charles VII had forbidden serving more than two dishes with the soup at a meal. Louis XII forbade the use of gold- and silverware; but he was obliged to revoke his ordinance. François I forbade fabrics of gold and silk. Under Henri II, silk clothes and shoes were permitted only to bishops, princes, and princesses [105]. Similar regulations were made at various times by the government of England [106].

Finally, the government of China still believes, in our day, that its cares are indispensable for its subjects not to dissipate their wealth in foolish expenses. It forbids the greatest number of them grand hotels, gardens, carriages, and every kind of external splendor and magnificence [107].

What is the portion of wealth whose preservation is due to the advantages that naturally result from economy, and to the evils that are the natural consequence of dissipation? What is the portion whose preservation must be attributed to the prohibitions of governments? In other words, what are the goods that result from the action of governments, and the evils at the price of which these goods are bought?

At the moment when governments believed it necessary to restrict the expenses of their subjects to oblige them to preserve their property, there doubtless already existed a very considerable quantity of wealth that had been preserved without the authority meddling in it; and since these regulations have been abolished throughout Europe, one has not observed that the peoples have become poorer. An author of the fourteenth century already complains of the progress of dissipation; he regrets the time when, in Milan, the wax candle was unknown; when the tallow candle was a luxury; when, among the best citizens, one used pieces of dry, lit wood for light; when one ate hot meat only three times a week; when shirts were of serge and not of linen; when the dowry of the most considerable bourgeois women was one hundred livres at most.

Table linen, says Voltaire, was then very rare in England; wine was sold there only at the apothecaries, as a cordial: all the houses of private individuals were of a coarse wood, covered with a kind of mortar called wattle and daub; the doors low and narrow, the windows small and almost without light: to be drawn in a cart through the streets of Paris, barely paved and covered with mud, was a luxury; and three times this luxury was forbidden by Philip the Fair to bourgeois women [108].The regulations that had for their object to oblige individuals to restrict their expenses, and thus to preserve their riches, have fallen away for centuries in all the States of Europe. Today, each can enjoy and dispose of his properties in the most absolute manner; and the faculty that every person who has reached the age of majority has, of dissipating his fortune in foolish expenses, has no more ruined the European nations, than the faculty that Chinese parents have of exposing their children has depopulated China. Europeans are as jealous of increasing and preserving their fortune, as the Chinese can be of multiplying and preserving their children: the ones no more than the others feel the need for the government’s action.

It is not impossible, however, that several individuals may ruin themselves by profusions or by ill-conceived expenses. The examples are not very numerous, comparatively to the population of each country; but several exist nonetheless. Let us suppose, therefore, that a government, to prevent misfortunes of this kind, renews the regulations that existed of old, and attempts to set limits to the expenses that private individuals make. As it is possible to ruin oneself by a multitude of means, it will be necessary for public authority to determine what are the foods with which it will be permitted to be nourished, the clothing with which one may be covered, the houses one may inhabit. Let us suppose all that determined, and let us examine what will be the elements of calculation that will enter into the assessment of this regulation [109].

It would be no more reasonable to attribute to such a regulation the preservation of all existing riches, than it would be reasonable to attribute the preservation of the human race to the penalties pronounced against individuals convicted of infanticide. The good would be restricted to the preservation of the riches that would have been foolishly spent if public authority had not prevented their dissipation. The difficulty consists in evaluating these riches, and it is much easier to say what they do not consist of, than to determine what they do consist of. The government can hardly exercise its influence except on enjoyments of ostentation; but, when those become impossible, they are replaced by secret enjoyments, which are neither less expensive, nor more moral; the individual who cannot consume his riches in one form, consumes them in another. The sumptuary laws of the Romans did not prevent a fish from being sold for more than an ox, when people were found who had the means to pay for it and the desire to buy it [110]; and the Chinese, who are forbidden to consume their riches on gardens and carriages, consume them in secret pleasures [111]. The sum of riches that a sumptuary law is capable of preserving is therefore infinitely small, if not null. It would be to exaggerate it greatly to put it at the thousandth part of that which is preserved by the sole force of customs or personal interests. The good is therefore infinitely small; it is, moreover, uncertain and in a way inappreciable; finally, it presents itself only in the distance, since it is not felt by those for whom the government’s action is useless, and since those on whom it is exercised experience only privations from it.

The evils, on the contrary, spread over the entire society; and they are very grave, since no one can any longer be safe in his home, and escape the arbitrariness of the magistrates. They consist in the anxieties inspired in all citizens; in the necessity of exposing the state of their fortune to justify their expenses; in the unjust prosecutions to which the errors, prejudices, malevolence, and cupidity of the magistrates and their agents can give rise; in the prosecutions and in the penalties that are applied to the accused, every time they have infringed upon the prohibitions of the authority; in the creation of new magistracies, and in the pains and expenses that are its consequence. One must also put on the account of the same regulation, the tendency it gives toward secret enjoyments, always more susceptible to becoming vicious than those that can only take place publicly.

Thus, the evils exceed the goods in an immense proportion by the number of persons they affect, by the intensity, by the certainty, by the proximity, and even by the duration, since they act in a constant manner, and since some can still be felt when the cause that produced them has ceased to exist. These regulations or these laws have therefore been proscribed as vicious, and they have been so for the reason that the sum of evil they produced exceeded the sum of good that could be its consequence.

In seeking to distinguish, among the effects of a law, those that must be attributed to the sole force of customs, and those that belong to the action of the government, I have purposely taken two examples where these forces and this action tend toward the same goal: the preservation and prosperity of nations. I was determined in this choice by two motives. The first was not to have to concern myself with the intention of governments or their secret views. The second was to show that their action can sometimes be baneful, even when it tends to second the most useful inclinations of the human race. This will make understood the extent of the evil it can cause, when it tends to reinforce vicious inclinations; this will also show that there are evils that governments must know how to tolerate, if they do not wish to cause more serious ones. A government that wished to extirpate all evils by force would be hardly less oppressive than one that would not wish to suffer any good [112].

It now remains for us only to examine what are the elements of calculation that enter into the assessment of an act of authority judged useful. A government, I suppose, orders the collection of such a tax to pay the salaries of the magistrates charged with rendering justice, and of the officers charged with ensuring the execution of their judgments, and with watching over the maintenance of public order. This act or this law will produce an evil; it will take from each individual a small part of his revenues. This evil will have an intensity proportionate to the privations that each will have to impose on himself to pay his share of the tax. It will be renewed every year, and will be felt as long as these same privations; it will have every possible degree of certainty; it will closely follow the formation of the law. It will affect almost everyone, since each will have to pay according to the extent of his faculties.

But this law will produce several kinds of good: it will contribute to guaranteeing to each the security of his person and his properties, and the security that will result from this guarantee will be a good infinitely greater than the evil at the price of which it will have been bought. If this security did not exist, not only would all other enjoyments be disturbed, but one would not even have the certainty of seeing born or of collecting the small portion of one's revenues, with the aid of which one pays one's taxes. If the good has infinitely more intensity than the evil, it also extends over a greater number of persons: those who have no means to pay the tax, and those who are not obliged to, such as foreigners, enjoy it no less than the citizens. The good also has more duration; one no longer thinks of the sacrifice one has made, when one has paid a light tax; but one enjoys security at every instant of life, and even during sleep. The certainty is equal on both sides; it is enough, to be convinced of it, to compare the state of a country where justice is poorly administered, to a country where it is administered regularly. Finally, the good is equal to the evil in proximity; it is even sometimes closer, since one sometimes suspends the payment of the tax, without ceasing to enjoy the security that a good administration of justice gives [113].

We therefore find here, in the assessment of a law or an act of government, the elements that we have encountered in the assessment of our habits or our actions: the consequences that result from them are composed of a mixture of goods and evils; but the former exceed the latter by the intensity, by the duration, and by the number of persons over whom they spread; the former at least equal the latter in certainty and in proximity.

One sees, by what precedes, that it is impossible to assess a law well, if one does not consider separately each of the elements of force of which it is composed, and if one does not examine what are the effects proper to each of these forces. But also, when one follows this procedure, one is astonished at how little good the direct and immediate action of public authority produces, comparatively to that which results from the power of customs. If one were to subject most of the laws that exist in a nation to such a test, one would be surprised at the smallness of the results one obtains with the aid of immense taxes, of a multitude of public officers, of innumerable armies, and of all that constitutes the material force of public authority; perhaps one would arrive at this consequence, that a people already civilized needs, to be happy, only not to be pillaged, and to be abandoned to itself. It would do better by the sole force of its customs, by the instinct that carries it toward its preservation and its prosperity, than our learned politicians can do, with their systems supported by their armies and by their innumerable agents.

If we now apply to the action of public authority what we have said of private habits, and if we give to this action the name of law, it will be easy for us to see what distinguishes a vicious law from a good law: it will suffice to transport here the definitions that are found in the preceding chapter, and to substitute the words law or institution, for the word habit.

Thus, a vicious law is one that produces an immediate advantage, but which is followed by considerable evils though distant: such was the law that established in England a tax in favor of all the poor indiscriminately. A law is vicious, when it produces certain evils, to obtain doubtful and distant advantages; or when it sacrifices the interest of a considerable number of persons to the interest of a smaller number. Finally, a law is vicious when, to obtain a passing good, it produces an evil equal in intensity, and more considerable in duration.

A useful or advantageous law, is one in which one encounters contrary circumstances: it is one, for example, by which a people or a government submits to a present evil to avoid more serious evils though distant, or to acquire more considerable advantages; it is one that, at the price of some individual evils, produces a good for the entire society; it is one, in a word, whose effects in good surpass its effects in evil, giving to these words the most extended sense.

In analyzing the effects that habits, actions, human institutions produce on our physical, moral, and intellectual faculties; in showing what are the causes that determine peoples in the judgment they pass on these habits or these actions, I have wished simply to expound the manner in which things happen. If, for example, economy, temperance, generosity, probity, sincerity, produce, for the human race, a sum of good infinitely more considerable than the sum of evil that results from them, and if peoples honor these habits, every time they perceive their consequences, it is not because it has pleased such and such an individual to make it a duty for them, it is because it is not in their nature to do otherwise. Likewise, if prodigality, intemperance, vengeance, perfidy, improbity, produce for the human race a sum of evils more considerable than the sum of goods that can result from them, and if the peoples who see the consequences of these habits brand them with dishonorable qualifications, it is not because the moralists, the philosophers or the ministers of the various religions have so willed it, it is because it is in the nature of man to feel and to judge in this manner.

Thus, we can say, with the Stoics, that the most virtuous men are those who live in the manner most conformable to the laws of their own nature; and that those, on the contrary, who have the most vices, are those who most frequently violate these laws, and who draw their penalties upon themselves, or upon others.