Of Crimes and Punishments
Cesare Beccaria
Page III
Of the Punishment of the Nobles.
What punishments shall be ordained for the nobles, whose privileges make so great a part of the laws of nations? I do not mean to inquire whether the hereditary distinction between nobles and commoners be useful in any government, or necessary in a monarchy; or whether it be true that they form an intermediate power, of use in moderating the excess of both extremes; or whether they be not rather slaves to to their own body, and to others, confining within a very small circle the natural effects and hopes of industry, like those little fruitful spots scattered here and there in the sandy deserts of Arabia; or whether it be true that a subordination of rank and condition is inevitable or useful in society; and, if so, whether this subordination should not rather subsist between individuals than particular bodies, whether it should not rather circulate through the whole body politic than be confined to one part, and, rather than be perpetual, should it not be incessantly produced and destroyed. Be these as they may, I assert that the punishment of a nobleman should in no wise differ from that of the lowest member of society.
Every lawful distinction, either in honours or riches, supposes previous equality, founded on the laws, on which all the members of society are considered as being equally dependent. We should suppose that men, in renouncing their natural despotism, said, The wisest and most industrious among us should obtain the greatest honours, and his dignity shall descend to his posterity. The fortunate and happy may hope for greater honours, but let him not therefore be less afraid than others of violating those conditions on which he is exalted. It is true indeed that no such degrees were ever made in a general diet of mankind, but they exist in the invariable relations of things; nor do they destroy the advantages which are supposed to be produced by the class of nobles, but prevent the inconveniences; and they make the laws respectable, by destroying all hopes of impunity.
It may be objected, that the same punishment inflicted on a nobleman and a plebeian becomes really different from the difference of their education, and from the infamy it reflects on an illustrious family: but I answer, that punishments are to be estimated, not by the sensibility of the criminal, but by the injury done to society, which injury is augmented by the high rank of the offender. The precise equality of a punishment can never be more than external, as it is in proportion to the degree of sensibility which differs in every individual. The infamy of an innocent family may be easily obliterated by some public demonstration of favour from the sovereign, and forms have always more influence than reason on the gazing multitude.
Of Robbery.
The punishment of robbery, not accompanied with violence, should be pecuniary. He who endeavours to enrich himself with the property of another should be deprived of part of his own. But this crime, alas! is commonly the effect of misery and despair; the crime of that unhappy part of mankind to whom the right of exclusive property, a terrible and perhaps unnecessary right, has left but a bare existence. Besides, as pecuniary punishments may increase the number of robbers, by increasing the number of poor, and may deprive an innocent family of subsistence, the most proper punishment will be that kind of slavery which alone can be called just; that is, which makes the society, for a time, absolute master of the person and labour of the criminal, in order to oblige him to repair, by this dependence, the unjust despotism he usurped over the property of another, and his violation of the social compact.
When robbery is attended with violence, corporal punishment should be added to slavery. Many writers have shown the evident disorder which must arise from not distinguishing the punishment due to robbery with violence, and that due to theft or robbery committed with dexterity, absurdly making a sum of money equivalent to a man's life. But it can never be superfluous to repeat, again and again, those truths of which mankind have not profited; for political machines preserve their motion much longer than others, and receive a new impulse with more difficulty. These crimes are in their nature absolutely different, and this axiom is as certain in politics as in mathematics, that between qualities of different natures there can be no similitude.
Of Infamy considered as a Punishment.
Those injuries which affect the honour, that is, that just portion of esteem which every citizen has a right to expect from others, should be punished with infamy. Infamy is a mark of the public disapprobation, which, deprives the object of all consideration in the eyes of his fellow-citizens, of the confidence of his country, and of that fraternity which exists between members of the same society. This is not always in the power of the laws. It is necessary that the infamy inflicted by the laws should be the same with that which results from the relations of things, from universal morality, or from that particular system, adopted by the nation, and the laws, which governs the opinion of the vulgar. If, on the contrary, one be different from the other, either the laws will no longer be respected, or the received notions of morality and probity will vanish, in spite of the declamations of moralists, which are always too weak to resist the force of example. If we declare those actions infamous which are in themselves indifferent. we lessen the infamy of those which are really infamous. The punishment of infamy should not be too frequent, for the power of opinion grows weaker by repetition; nor should it be inflicted on a number of persons at the same time, for the infamy of many resolves itself into the infamy of none.
Painful and corporal punishments should never be applied to fanaticism; for, being founded on pride, it glories in persecution. Infamy and ridicule only should be employed against fanatics if the first, their pride will be overbalanced by the pride of the people; and we may judge of the power of the second, if we consider that even truth Is obliged to summon all her force when attacked by error armed with ridicule. Thus, by opposing one passion to another, and opinion to opinion, a wise legislator puts an end to the admiration of the populace occasioned by a false principle, the original absurdity of which is veiled by some well deduced consequences.
This is the method to avoid confounding the immutable relations of things, or opposing nature, whose actions, not being limited by time, but operating incessantly, overturn and destroy all those vain regulations which contradict her laws. It is not only in the fine arts that the imitation of nature is the fundamental principle; it is the same in sound policy, which is no other than the art of uniting and directing to the same end the natural and immutable sentiments of mankind.
Of Idleness.
A wise government will not suffer in the midst of labour and industry, that kind of political idleness which is confounded by rigid declaimers with the leisure attending riches acquired by industry, which is of use to an increasing society when confined within proper limits. I call those politically idle, who neither contribute to the good of society by their labour nor their riches; who continually accumulate, but never spend; who are reverenced by the vulgar with stupid admiration, and regarded by the wise with disdain; who, being victims to a monastic life, and deprived of all incitement to that activity which is necessary to preserve or increase its comforts, devote all their vigour to passions of the strongest kind, the passions of opinion. I call not him idle who enjoys the fruits of the virtues or vices of his ancestors, and, in exchange for his pleasures, supports the industrious poor. It is not then the narrow virtue of austere moralists, but the laws, that should determine what species of idleness deserves punishment.
Of Banishment and Confiscation.
He who disturbs the public tranquillity, who does not obey the laws, who violates the conditions on which men mutually support and defend each other, ought to be excluded from society, that is, banished.
It seems as if banishment should be the punishment of those who, being accused of an atrocious crime, are probably, but not certainly, guilty. For this purpose would be required a law the least arbitrary and the most precise possible; which should condemn to banishment those who have reduced the community to the fatal alternative either of fearing or punishing them unjustly, still, however, leaving them the sacred right of proving their innocence. The reasons ought to be stronger for banishing a citizen than a stranger, and for the first accusation than for one who hath been often accused.
Should the person who is excluded for ever from society be deprived of his property? This question may be considered in different lights. The confiscation of effects, added to banishment is a greater punishment than banishment alone; there ought then to be some cases, in which, according to the crime, either the whole fortune should be confiscated, or part only, or none at all. The whole should be forfeited, when the law which ordains banishment declares, at the same time, that all connections or relations between the society and the criminal are annihilated. In this case the citizen dies; the man only remains, and, with respect to a political body, the death of the citizen should have the same consequences with the death of the man. It seems to follow then, that in this case, the effects of the criminal should devolve to his lawful heirs. But it is not on account of this refinement that I disapprove of confiscations. If some have insisted, that they were a restraint to vengeance and the violence of particulars, they have not reflected, that, though punishments be productive of good, they are not, on that account, more just; to be just, they must be necessary. Even an useful injustice can never be allowed by a legislator, who means to guard against watchful tyranny, which, under the flattering pretext of momentary advantages, would establish permanent principles of destruction, and, to procure the ease of a few in a high station, would draw tears from thousands of the poor.
The law which ordains confiscations sets a price on the head of the subject, with the guilty punishes the innocent, and, by reducing them to indigence and despair, tempts them to become criminal. Can there be a more melancholy spectacle than a whole family overwhelmed with infamy and misery from the crime of their chief? a crime, which, if it had been possible, they were restrained from preventing, by that submission which the laws themselves have ordained.
Of the Spirit of Family in States.
It is remarkable, that many fatal acts of injustice have been authorised and approved, even by the wisest and most experienced men, in the freest republics. This has been owing to their having considered the state rather as a society of families than of men. Let us suppose a nation composed of an hundred thousand men, divided into twenty thousand families of five persons each, including the head or master of the family, its representative. If it be an association of families, there will be twenty thousand men, and eighty thousand slaves; or if of men, there will be an hundred thousand citizens, and not one slave. In the first case we behold a republic, and twenty thousand little monarchies, of which the heads are the sovereigns: in the second the spirit of liberty will not only breath in every public place of the city, and in the assemblies of the nation, but in private houses, where men find the greatest part of their happiness or misery. As laws and customs are always the effect of the habitual sentiments of the members of a republic, if the society be an association of the heads of families, the spirit of monarchy will gradually make its way into the republic itself, as its effects will only be restrained by the opposite interests of each, and not by an universal spirit of liberty and equality. The private spirit of family is a spirit of minuteness, and confined to little concerns. Public spirit, on the contrary, is influenced by general principles, and from facts deduces general rules of utility to the greatest number.
In a republic of families, the children remain under the authority of the father as long as he lives, and are obliged to wait until his death for an existence dependent on the laws alone. Accustomed to kneel and tremble in their tender years, when their natural sentiments were less restrained by that caution, obtained by experience, which is called moderation, how should they resist those obstacles which vice always opposes to virtue in the languor and decline of age, when the despair of reaping the fruits is alone sufficient to damp the vigour of their resolutions?
In a republic, where every man is a citizen, family-subordination is not the effect of compulsion, but of contract; and the sons, disengaged from the natural dependence which the weakness of infancy and the necessity of education required, become free members of society, but remain subject to the head of the family for their own advantage, as in the great society.
In a republic of families, the young people, that is, the most numerous and most useful part of the nation, are at the discretion of their fathers: in a republic of men, they are attached to their parents by no other obligation than that sacred and inviolable one of mutual assistance, and of gratitude for the benefits they have received; a sentiment destroyed not so much by the wickedness of the human heart, as by a mistaken subjection prescribed by the laws.
These contradictions between the laws of families and the fundamental laws of a state are the source of many others between public and private morality, which produce a perpetual conflict in the mind. Domestic morality inspires submission and fear; the other courage and liberty. That instructs a man to confine his beneficence to a small number of persons, not of his own choice; this to extend it to all mankind. That commands a continual sacrifice of himself to a vain idol called the good of the family, which is often no real good to any one of those who compose it; this teaches him to consider his own advantage, without offending the laws, or excites him to sacrifice himself for the good of his country, by rewarding him beforehand with the fanaticism it inspires. Such contradictions are the reason that men neglect the pursuit of virtue, which they can hardly distinguish amidst the obscurity and confusion of natural and moral objects. How frequently are men, upon a retrospection of their actions, astonished to find themselves dishonest?
In proportion to the increase of society each member becomes a smaller part of the whole; and the republican spirit diminishes in the same proportion, if neglected by the laws. Political societies, like the human body, have their limits circumscribed, which they cannot exceed, without disturbing their economy. It seems as if the greatness of a state ought to be inversely as the sensibility and activity of the individuals; if, on the contrary, population and activity increase in the same proportion, the laws. will with difficulty prevent the crimes arising from the good they have produced. An overgrown republic can only be saved from despotism by subdividing it into a number of confederate republics. But how is this practicable? By a despotic dictator, who, with the courage of Sylla, has as much genius for building up as that Roman had for pulling down. If he be an ambitious man, his reward will be immortal glory? if a philosopher, the blessings of his fellow citizens will sufficiently console him for the loss of authority, though he should not be insensible to their ingratitude.
In proportion as the sentiments which unite us to the state grow weaker, those which attach us to the objects which more immediately surround us grow stronger; therefore, in the most despotic government, friendships are more durable, and domestic virtues (which are always of the lowest class) are the most common, or the only virtues, existing. Hence it appears how confined have been the views of the greatest number of legislators.
Of the Mildness of Punishments.
The course of my ideas has carried me away from my subject, to the elucidation of which I now return. Crimes are more effectually prevented by the certainty than the severity of punishment. Hence in a magistrate the necessity of vigilance, and in a judge of implacability, which, that it may become an useful virtue, should be joined to a mild legislation. The certainty of a small punishment will make a stronger impression than the fear of one more severe, if attended with the hopes of escaping; for it is the nature of mankind to be terrified at the approach of the smallest inevitable evil, whilst hope, the best gift of Heaven hath the power of dispelling the apprehension of a greater, especially if supported by examples of impunity, which weakness or avarice too frequently afford.
If punishments be very severe, men are naturally led to the perpetration of other crimes, to avoid the punishment due to the first. The countries and times most notorious for severity of punishments were always those in which the most bloody and inhuman actions and the most atrocious crimes were committed; for the hand of the legislator and the assassin were directed by the same spirit of ferocity, which on the throne dictated laws of iron to slaves and savages, and in private instigated the subject to sacrifice one tyrant to make room for another.
In proportion as punishments become more cruel, the minds of men, as a fluid rises to the same height with that which surrounds it, grow hardened and insensible; and the force of the passions still continuing, in the space of an hundred years the wheel terrifies no more than formerly the prison. That a punishment may produce the effect required, it is sufficient that the evil it occasions should exceed the good expected from the crime, including in the calculation the certainty of the punishment, and the privation of the expected advantage. All severity beyond this is superfluous, and therefore tyrannical.
Men regulate their conduct by the repeated impression of evils they know, and not by those with which they are unacquainted. Let us, for example, suppose two nations, in one of which the greatest punishment is perpetual slavery, and in the other the wheel: I say, that both will inspire the same degree of terror, and that their can be no reasons for increasing the punishments of the first, which are not equally valid for augmenting those of the second to more lasting and more ingenious modes of tormenting, and so on to the most exquisite refinements of a science too well known to tyrants.
There are yet two other consequences of cruel punishments, which counteract the purpose of their institution, which was, to prevent crimes. The first arises from the impossibility of establishing an exact proportion between the crime and punishment; for though ingenious cruelty hath greatly multiplied the variety of torments, yet the human frame can suffer only to a certain degree, beyond which it is impossible to proceed, be the enormity of the crime ever so great. The second consequence is impunity. Human nature is limited no less in evil than in good. Excessive barbarity can never be more than temporary, it being impossible that it should be supported by a permanent system of legislation; for if the laws be too cruel, they must be altered, or anarchy and impunity will succeed.
Is it possible without shuddering with horror, to read in history of the barbarous and useless torments that were cooly invented and executed by men who were called sages? Who does not tremble at the thoughts of thousands of wretches, whom their misery, either caused or tolerated by the laws, which favoured the few and outraged the many, had forced in despair to return to a state of nature, or accused of impossible crimes, the fabric of ignorance and superstition, or guilty only of having been faithful to their own principles; who, I say, can, without horror, think of their being torn to pieces, with slow and studied barbarity, by men endowed with the same passions and the same feelings? A delightful spectacle to a fanatic multitude!
Of the Punishment of Death.
The useless profusion of punishments, which has never made men better induces me to inquire, whether the punishment of death be really just or useful in a well governed state? What right, I ask, have men to cut the throats of their fellow-creatures? Certainly not that on which the sovereignty and laws are founded. The laws, as I have said before, are only the sum of the smallest portions of the private liberty of each individual, and represent the general will, which is the aggregate of that of each individual. Did any one ever give to others the right of taking away his life? Is it possible that, in the smallest portions of the liberty of each, sacrificed to the good of the public, can be contained the greatest of all good, life? If it were so, how shall it be reconciled to the maxim which tells us, that a man has no right to kill himself, which he certainly must have, if he could give it away to another?
But the punishment of death is not authorised by any right; for I have demonstrated that no such right exists. It is therefore a war of a whole nation against a citizen whose destruction they consider as necessary or useful to the general good. But if I can further demonstrate that it is neither necessary nor useful, I shall have gained the cause of humanity.
The death of a citizen cannot be necessary but in one case: when, though deprived of his liberty, he has such power and connections as may endanger the security of the nation; when his existence may produce a dangerous revolution in the established form of government. But, even in this case, it can only be necessary when a nation is on the verge of recovering or losing its liberty, or in times of absolute anarchy, when the disorders themselves hold the place of laws: but in a reign of tranquillity, in a form of government approved by the united wishes of the nation, in a state well fortified from enemies without and supported by strength within, and opinion, perhaps more efficacious, where all power is lodged in the hands of a true sovereign, where riches can purchase pleasures and not authority, there can be no necessity for taking away the life of a subject.
If the experience of all ages be not sufficient to prove, that the punishment of death has never prevented determined men from injuring society, if the example of the Romans, if twenty years' reign of Elizabeth, empress of Russia, in which she gave the fathers of their country an example more illustrious than many conquests bought with blood; if, I say, all this be not sufficient to persuade mankind, who always suspect the voice of reason, and who choose rather to be led by authority, let us consult human nature in proof of my assertion.
It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance; for our sensibility is more easily and more powerfully affected by weak but repeated impressions, than by a violent but momentary impulse. The power of habit is universal over every sensible being. As it is by that we learn to speak, to walk, and to satisfy our necessities, so the ideas of morality are stamped on our minds by repeated impression. The death of a criminal is a terrible but momentary spectacle, and therefore a less efficacious method of deterring others than the continued example of a man deprived of his liberty, condemned, as a beast of burden, to repair, by his labour, the injury he has done to society, If I commit such a crime, says the spectator to himself, I shall be reduced to that miserable condition for the rest of my life. A much more powerful preventive than the fear of death which men always behold in distant obscurity.
The terrors of death make so slight an impression, that it has not force enough to withstand the forgetfulness natural to mankind, even in the most essential things, especially when assisted by the passions. Violent impressions surprise us, but their effect is momentary; they are fit to produce those revolutions which instantly transform a common man into a Lacedaemonian or a Persian; but in a free and quiet government they ought to be rather frequent than strong.
The execution of a criminal is to the multitude a spectacle which in some excites compassion mixed with indignation. These sentiments occupy the mind much more than that salutary terror which the laws endeavor to inspire; but, in the contemplation of continued suffering, terror is the only, or at least predominant sensation. The severity of a punishment should be just sufficient to excite compassion in the spectators, as it is intended more for them than for the criminal.
A punishment, to be just, should have only that degree of severity which is sufficient to deter others. Now there is no man whop upon the least reflection, would put in competition the total and perpetual loss of his liberty, with the greatest advantages he could possibly obtain in consequence of a crime. Perpetual slavery, then, has in it all that is necessary to deter the most hardened and determined, as much as the punishment of death. I say it has more. There are many who can look upon death with intrepidity and firmness, some through fanaticism, and others through vanity, which attends us even to the grave; others from a desperate resolution, either to get rid of their misery, or cease to live: but fanaticism and vanity forsake the criminal in slavery, in chains and fetters, in an iron cage, and despair seems rather the beginning than the end of their misery. The mind, by collecting itself and uniting all its force, can, for a moment, repel assailing grief; but its most vigorous efforts are insufficient to resist perpetual wretchedness.
In all nations, where death is used as a punishment, every example supposes a new crime committed; whereas, in perpetual slavery, every criminal affords a frequent and lasting example; and if it be necessary that men should often be witnesses of the power of the laws, criminals should often be put to death: but this supposes a frequency of crimes; and from hence this punishment will cease to have its effect, so that it must be useful and useless at the same time.
I shall be told that perpetual slavery is as painful a punishment as death, and therefore as cruel. I answer, that if all the miserable moments in the life of a slave were collected into one point, it would be a more cruel punishment than any other; but these are scattered through his whole life, whilst the pain of death exerts all its force in a moment. There is also another advantage in the punishment of slavery, which is, that it is more terrible to the spectator than to the sufferer himself; for the spectator considers the sum of all his wretched moments whilst the sufferer, by the misery of the present, is prevented from thinking of the future. All evils are increased by the imagination, and the sufferer finds resources and consolations of which the spectators are ignorant, who judge by their own sensibility of what passes in a mind by habit grown callous to misfortune.
Let us, for a moment, attend to the reasoning of a robber or assassin, who is deterred from violating the laws by the gibbet or the wheel. I am sensible, that to develop the sentiments of one's own heart is an art which education only can teach; but although a villain may not be able to give a clear account of his principles, they nevertheless influence his conduct. He reasons thus: "What are these laws that I am bound to respect, which make so great a difference between me and the rich man? He refuses me the farthing I ask of him, and excuses himself by bidding me have recourse to labour, with which he is unacquainted."
"Who made these laws? The rich and the great, who never deigned to visit the miserable hut of the poor, who have never seen him dividing a piece of mouldy bread, amidst the cries of his famished children and the tears of his wife. Let us break those ties, fatal to the greatest part of mankind, and only useful to a few indolent tyrants. Let us attack injustice at its source. I will return to my natural state of independence. I shall live free and happy on the fruits of my courage and industry. A day of pain and repentance may come, but it will be short; and for an hour of grief I shall enjoy years of pleasure and liberty. King of a small number as determined as myself, I will correct the mistakes of fortune, and I shall see those tyrants grow pale and tremble at the sight of him, whom, with insulting pride, they would not suffer to rank with their dogs and horses."
Religion then presents itself to the mind of this lawless villain, and, promising him almost a certainty of eternal happiness upon the easy terms of repentance, contributes much to lessen the horror of the last scene of the tragedy.
But he who foresees that he must pass a great number of years, even his whole life, in pain and slavery, a slave to those laws by which he, was protected, in sight of his fellow-citizens, with whom he lives in freedom and society, makes an useful comparison between those evils, the uncertainty of his success, and the shortness of the time in which he shall enjoy the fruits of his transgression. The example of those wretches, continually before his eyes, makes a much greater impression on him than a punishment, which instead of correcting, makes him more obdurate.
The punishment of death is pernicious to society, from the example of barbarity it affords. If the passions, or the necessity of war, have taught men to shed the blood of their fellow creatures, the laws, which are intended to moderate the ferocity of mankind, should not increase it by examples of barbarity, the more horrible as this punishment is usually attended with formal pageantry. Is it not absurd, that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves? What are the true and most useful laws? Those compacts and conditions which all would propose and observe in those moments when private interest is silent, or combined with that of the public. What are the natural sentiments of every person concerning the punishment of death? We may read them in the contempt and indignation with which every one looks on the executioner, who is nevertheless an innocent executor of the public will, a good citizen, who contributes to the advantage of society, the instrument of the general security within, as good soldiers are without. What then is the origin of this contradiction? Why is this sentiment of mankind indelible to the scandal of reason? It is, that, in a secret corner of the mind, in which the original impressions of nature are still preserved, men discover a sentiment which tells them, that their lives are not lawfully in the power of any one, but of that necessity only which with its iron sceptre rules the universe.
What must men think, when they see wise magistrates and grave ministers of justice, with indifference and tranquillity, dragging a criminal to death, and whilst a wretch trembles with agony, expecting the fatal stroke, the judge, who has condemned him, with the coldest insensibility, and perhaps with no small gratification from the exertion of his authority, quits his tribunal, to enjoy the comforts and pleasures of life? They will say, "Ah! those cruel formalities of justice are a cloak to tyranny, they are a secret language, a solemn veil, intended to conceal the sword by which we are sacrificed to the insatiable idol of despotism. Murder, which they would represent to us an horrible crime, we see practised by them without repugnance or remorse. Let us follow their example. A violent death appeared terrible in their descriptions, but we see that it is the affair of a moment. It will be still less terrible to him who, not expecting it, escapes almost all the pain." Such is the fatal though absurd reasonings of men who are disposed to commit crimes, on whom the abuse of religion has more influence than religion itself.
If it be objected, that almost all nations in all ages have punished certain crimes with death, I answer, that the force of these examples vanishes when opposed to truth, against which prescription is urged in vain. The history of mankind is an immense sea of errors, in which a few obscure truths may here and there be found.
But human sacrifices have also been common in almost all nations. That some societies only it either few in number, or for a very short time, abstained from the punishment of death, is rather favourable to my argument; for such is the fate of great truths, that their duration is only as a flash of lightning in the long and dark night of error. The happy time is not yet arrived, when truth, as falsehood has been hitherto, shall be the portion of the greatest number.
I am sensible that the voice of one philosopher is too weak to be heard amidst the clamours of a multitude, blindly influenced by custom; but there is a small number of sages scattered on the face of the earth, who will echo to me from the bottom of their hearts; and if these truths should happily force their way to the thrones of princes be it known to them, that they come attended with the secret wishes of all mankind; and tell the sovereign who deigns them a gracious reception, that his fame shall outshine the glory of conquerors, and that equitable posterity will exalt his peaceful trophies above those of a Titus, an Antoninus, or a Trajan.
How happy were mankind if laws were now to be first formed! now that we see on the thrones of Europe benevolent monarchs, friends to the virtues of peace, to the arts and sciences, fathers of their people, though crowned, yet citizens; the increase of whose authority augments the happiness of their subjects, by destroying that inter. mediate despotism which intercepts the prayers of the people to the throne. If these humane princes have suffered the old laws to subsist, it is doubtless because they are deterred by the numberless obstacles which oppose the subversion of errors established by the sanction of many ages; and therefore every wise citizen will wish for the increase of their authority.
Of imprisonment.
That a magistrate, the executor of the laws, should have a power to imprison a citizen, to deprive the man he hates of his liberty, upon frivolous pretences, and to leave his friend unpunished, notwithstanding the strongest proofs of his guilt, is an error as common as it is contrary to the end of society, which is personal security.
Imprisonment is a punishment which differs from all others in this particular, that it necessarily precedes conviction; but this difference does not destroy a circumstance which is essential and common to it with all other punishments, viz. that it should never be inflicted but when ordained by the law. The law should therefore determine the crime, the presumption, and the evidence sufficient to subject the accused to imprisonment and examination. Public report, his flight, his extrajudicial confession, that of an accomplice, menaces, and his constant enmity with the person injured, the circumstances of the crime, and such other evidence, may be sufficient to justify the imprisonment of a citizen. But the nature of this evidence should be determined by the laws, and not by the magistrates, whose decrees are always contrary to political liberty, when they are not particular applications of a general maxim of the public code. When punishments become less severe, and prisons less horrible, when compassion and humanity shall penetrate the iron gates of dungeons, and direct the obdurate and inexorable ministers of justice, the laws may then be satisfied with weaker evidence for imprisonment.
A person accused, imprisoned, tried, and acquitted, ought not to be branded with any degree of infamy. Among the Romans we see that many accused of very great crimes, and afterwards declared innocent, were respected by the people, and honoured with employments in the state. But why is the fate of an innocent person so different in this age? It is because the present system of penal laws presents to our minds an idea of power rather than of justice: it is because the accused and convicted are thrown indiscriminately into the same prison? because imprisonment is rather a punishment than a means of securing the person of the accused; and because the interior power, which defends the laws, and the exterior, which defends the throne and kingdom, are separate, when they should be united. If the first were (under the common authority of the laws) combined with the right of judging, but not however immediately dependent on the magistrate, the pomp that attends a military corps would take off the infamy, which, like all popular opinions, is more attached to the manner and form than to the thing itself, as may be seen in military imprisonment, which, in the common opinion, is not so disgraceful as the civil. But the barbarity and ferocity of our ancestors, the hunters of the north, still subsist among the people in our customs and our laws, which are always several ages behind the actual refinements of a nation.
Of Prosecution and Prescription.
The proofs of the crime being obtained, and the certainty of it determined, it is necessary to allow the criminal time and means for his justification; but a time so short as not to diminish that promptitude of punishment, which, as we have shewn, is one of the most powerful means of preventing crimes. A mistaken humanity may object to the shortness of the time, but the force of the objection will vanish if we consider that the danger of the innocent increases with the defects of the legislation.
The time for inquiry and for justification should be fixed by the laws, and not by the judge, who, in that case, would become legislator. With regard to atrocious crimes, which are long remembered, when they are once proved, if the criminal have fled, no time should be allowed; but in less considerable and more obscure crimes, a time should be fixed, after which the delinquent should be no longer uncertain of his fate: for, in the latter case, the length of time, in which the crime is almost forgotten, prevents the example of impunity, and allows the criminal to amend, and become a better member of society.
General principles will here be sufficient, it being impossible to fix precisely the limits of time for any given legislation, or for any society in any particular circumstance. I shall only add, that, in a nation willing to prove the utility of moderate punishment, laws which, according to the nature of the crime, increase or diminish the time of inquiry and justification, considering the imprisonment or the voluntary exile of the criminal as a part of the punishment, will form an easy division of a small number of mild punishments for a great number of crimes.
But it must be observed, the time for inquiry and justification should not increase in direct proportion to the atrociousness of crimes; for the probability of such crimes having been committed is inversely as their atrociousness. Therefore the time for inquiring ought, in some cases, to be diminished, and that for justification increased, et vice versa. This may appear to contradict what I have said above, namely, that equal punishments may be decreed by unequal crimes, by considering the time allowed the criminal or the prison as a punishment.
In order to explain this idea, I shall divide crimes into two classes. The first comprehends homicide, and all greater crimes; the second crimes of an inferior degree. This distinction is founded in human nature. The preservation of life is a natural right; the preservation of property is a right of society. The motives that induce men to shake off the natural sentiment of compassion, which must be destroyed before great crimes can be committed, are much less in number than those by which, from the natural desire of being happy, they are instigated to violate a right which is not founded in the heart of man, but is the work of society. The different degrees of probability in these two classes, require that they should be regulated on different principles. In the greatest crimes, as they are less frequent, and the probability of the innocence of the accused being greater, the time allowed him for his justification should be greater, and the time of inquiry less. For by hastening the definitive sentence, the flattering hopes of impunity are destroyed, which are more dangerous as the crime is more atrocious. On the contrary, in crimes of less importance, the probability of the innocence being less, the time of inquiry should be greater, and that of justification less, as impunity is not so dangerous.
But this division of crimes into two classes should not be admitted, if the consequences of impunity were in proportion to the probability of the crime. It should be considered, that a person accused, whose guilt or innocence is not determined for want of proofs, may be again imprisoned for the same crime, and be subject to a new trial, if fresh evidence arises within the time fixed.
This is, in my opinion, the best method of providing at the same time for the security and liberty of the subject, without favouring one at the expense of the other; which may easily happen, since both these blessings, the unalienable and equal patrimony of every citizen, are liable to be invaded, the one by open or disguised despotism, and the other by tumultuous and popular anarchy.
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