Amendment I (Religion)

Document 12

Montesquieu, Spirit of Laws, bk. 12, CHS. 4, 5; BK. 24, CHS. 7, 8; BK. 25, CHS. 9, 10, 12

[Book 12]

4.--That Liberty is favored by the Nature and Proportion of Punishments

Liberty is in perfection when criminal laws derive each punishment from the particular nature of the crime. There are then no arbitrary decisions; the punishment does not flow from the capriciousness of the legislator, but from the very nature of the thing; and man uses no violence to man.

There are four sorts of crimes. Those of the first species are prejudicial to religion, the second to morals, the third to the public tranquillity, and the fourth to the security of the subject. The punishments inflicted for these crimes ought to proceed from the nature of each of these species.

In the class of crimes that concern religion, I rank only those which attack it directly, such as all simple sacrileges. For as to crimes that disturb the exercise of it, they are of the nature of those which prejudice the tranquillity or security of the subject, and ought to be referred to those classes.

In order to derive the punishment of simple sacrileges from the nature of the thing, it should consist in depriving people of the advantages conferred by religion in expelling them out of the temples, in a temporary or perpetual exclusion from the society of the faithful, in shunning their presence, in execrations, comminations, and conjurations.

In things that prejudice the tranquillity or security of the state, secret actions are subject to human jurisdiction. But in those which offend the Deity, where there is no public act, there can be no criminal matter, the whole passes between man and God, who knows the measure and time of His vengeance. Now if magistrates confounding things should inquire also into hidden sacrileges, this inquisition would be directed to a kind of action that does not at all require it: the liberty of the subject would be subverted by arming the zeal of timorous as well as of presumptuous consciences against him.

The mischief arises from a notion which some people have entertained of revenging the cause of the Deity. But we must honor the Deity and leave him to avenge his own cause. And, indeed, were we to be directed by such a notion, where would be the end of punishments? If human laws are to avenge the cause of an infinite Being, they will be directed by his infinity, and not by the weakness, ignorance, and caprice of man.

An historian of Provençe relates a fact which furnishes us with an excellent description of the consequences that may arise in weak capacities from the notion of avenging the Deity's cause. A Jew was accused of having blasphemed against the Virgin Mary; and upon conviction was condemned to be flayed alive. A strange spectacle was then exhibited: gentlemen masked, with knives in their hands, mounted the scaffold, and drove away the executioner, in order to be the avengers themselves of the honor of the blessed Virgin. I do not here choose to anticipate the reflections of the reader.

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5.--Of certain Accusations that require particular Moderation and Prudence

It is an important maxim, that we ought to be very circumspect in the prosecution of witchcraft and heresy. The accusation of these two crimes may be vastly injurious to liberty, and productive of infinite oppression, if the legislator knows not how to set bounds to it. For as it does not directly point at a person's actions, but at his character, it grows dangerous in proportion to the ignorance of the people; and then a man is sure to be always in danger, because the most exceptional conduct, the purest morals, and the constant practice of every duty in life are not a sufficient security against the suspicion of his being guilty of the like crimes.

Under Manuel Comnenus, the Protestator was accused of having conspired against the emperor, and of having employed for that purpose some secrets that render men invisible. It is mentioned in the life of this emperor that Aaron was detected, as he was poring over a book of Solomon's, the reading of which was sufficient to conjure up whole legions of devils. Now by supposing a power in witchcraft to rouse the infernal spirits to arms, people look upon a man whom they call a sorcerer as the person in the world most likely to disturb and subvert society; and, of course, they are disposed to punish him with the utmost severity.

But their indignation increases when witchcraft is supposed to have the power of subverting religion. The history of Constantinople informs us that in consequence of a revelation made to a bishop of a miracle having ceased because of the magic practices of a certain person, both that person and his son were put to death. On how many surprising things did not this single crime depend? That revelations should not be uncommon, that the bishop should be favored with one, that it was real, that there had been a miracle in the case, that this miracle had ceased, that there was an art magic, that magic could subvert religion, that this particular person was a magician, and, in fine, that he had committed that magic act.

The Emperor Theodorus Lascarus attributed his illness to witchcraft. Those who were accused of this crime had no other resource left than to handle a red-hot iron without being hurt. Thus among the Greeks a person ought to have been a sorcerer to be able to clear himself of the imputation of witchcraft. Such was the excess of their stupidity that to the most dubious crime in the world they joined the most dubious proofs of innocence.

Under the reign of Philip the Long, the Jews were expelled from France, being accused of having poisoned the springs with their lepers. So absurd an accusation ought to make us doubt all those that are founded on public hatred.

I have not here asserted that heresy ought not to be punished; I said only that we ought to be extremely circumspect in punishing it.

[Book 24]

7.--Of the Laws of Perfection in Religion

Human laws, made to direct the will, ought to give precepts, and not counsels; religion, made to influence the heart, should give many counsels, and few precepts.

When, for instance, it gives rules, not for what is good, but for what is better; not to direct to what is right, but to what is perfect; it is expedient that these should be counsels, and not laws: for perfection can have no relation to the universality of men or things. Besides, if these were laws, there would be a necessity for an infinite number of others, to make people observe the first. Celibacy was advised by Christianity; when they made it a law in respect to a certain order of men, it became necessary to make new ones every day, in order to oblige those men to observe it. The legislator wearied himself, and he wearied society, to make men execute by precept what those who love perfection would have executed as counsel.

8.--Of the Connection between the moral Laws and those of Religion

In a country so unfortunate as to have a religion that God has not revealed, it is necessary for it to be agreeable to morality; because even a false religion is the best security we can have of the probity of men.

The principal points of religion of the inhabitants of Pegu are, not to commit murder, not to steal, to avoid uncleanliness, not to give the least uneasiness to their neighbor, but to do him, on the contrary, all the good in their power. With these rules they think they should be saved in any religion whatsoever. Hence it proceeds that those people, though poor and proud, behave with gentleness and compassion to the unhappy.

[Book 25]

9.--Of Toleration in point of Religion

We are here politicians, and not divines; but the divines themselves must allow that there is a great difference between tolerating and approving a religion.

When the legislator has believed it a duty to permit the exercise of many religions, it is necessary that he should enforce also a toleration among these religions themselves. It is a principle that every religion which is persecuted becomes itself persecuting; for as soon as by some accidental turn it arises from persecution, it attacks the religion which persecuted it; not as religion, but as tyranny.

It is necessary, then, that the laws require from the several religions, not only that they shall not embroil the state, but that they shall not raise disturbances among themselves. A citizen does not fulfil the laws by not disturbing the government; it is requisite that he should not trouble any citizen whomsoever.

10.--The same Subject continued

As there are scarcely any but persecuting religions that have an extraordinary zeal for being established in other places (because a religion that can tolerate others seldom thinks of its own propagation), it must, therefore, be a very good civil law, when the state is already satisfied with the established religion, not to suffer the establishment of another.

This is then a fundamental principle of the political laws in regard to religion; that when the state is at liberty to receive or to reject a new religion it ought to be rejected; when it is received it ought to be tolerated.

. . . . .

12.--Of penal Laws

Penal laws ought to be avoided in respect to religion: they imprint fear, it is true; but as religion has also penal laws which inspire the same passion, the one is effaced by the other, and between these two different kinds of fear the mind becomes hardened.

The threatenings of religion are so terrible, and its promises so great, that when they actuate the mind, whatever efforts the magistrate may use to oblige us to renounce it, he seems to leave us nothing when he deprives us of the exercise of our religion, and to bereave us of nothing when we are allowed to profess it.

It is not, therefore, by filling the soul with the idea of this great object, by hastening her approach to that critical moment in which it ought to be of the highest importance, that religion can be most successfully attacked: a more certain way is, to tempt her by favors, by the conveniences of life, by hopes of fortune; not by that which revives, but by that which extinguishes the sense of her duty; not by that which shocks her, but by that which throws her into indifference at the time when other passions actuate the mind, and those which religion inspires are hushed into silence. As a general rule in changing a religion the invitations should be much stronger than the penalties.

The temper of the human mind has appeared even in the nature of punishments. If we take a survey of the persecutions in Japan, we shall find that they were more shocked at cruel torments than at long sufferings, which rather weary than affright, which are the more difficult to surmount, from their appearing less difficult.

In a word, history sufficiently informs us that penal laws have never had any other effect than to destroy.

The Founders' Constitution
Volume 5, Amendment I (Religion), Document 12
http://press-pubs.uchicago.edu/founders/documents/amendI_religions12.html
The University of Chicago Press

The Spirit of Laws. 1748. Translated by Thomas Nugent, 1750.

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