ONE:I conclude with this reflection, that the scale of punishments should be relative to the condition of a nation. On the hardened minds of a people scarcely emerged from the savage state the impressions made should be stronger and more sensible. One needs a[169] thunderbolt for the destruction of a fierce lion that faces round at the shot of a gun. But in proportion as mens minds become softened in the social state, their sensibility increases, and commensurate with that increase should be the diminution of the force of punishment, if it be desired to maintain any proportion between the object and the sensation that attends it.
TWO:In proportion as punishments become milder, clemency and pardon become less necessary. Happy the nation in which their exercise should be baneful! Clemency, therefore, that virtue, which has sometimes made up in a sovereign for failings in all the other duties of the throne, ought to be excluded in a perfect system of legislation, where punishments are mild and the method of trial regular and expeditious. This truth will appear a hard one to anybody living in the present chaotic state of the criminal law, where the necessity of pardon and favours accords with the absurdity of the laws and with the severity of sentences of punishment. This right of pardon is indeed the fairest prerogative of the throne, the most desirable attribute of sovereignty; it is, however, the tacit mark of disapproval that the beneficent dispensers of the public happiness exhibit towards a code, which with all its imperfections claims in its favour the prejudice of ages, the voluminous and imposing array of innumerable commentators, the weighty apparatus of unending formalities, and the adhesion of those persons of half-learning who, though less feared than real philosophers, are really more dangerous. But let it be remembered that clemency is the virtue of[191] the maker, not of the executor, of the laws; that it should be conspicuous in the code of laws rather than in particular judgments; that the showing to men, that crimes may be pardoned and that punishment is not their necessary consequence, encourages the hope of impunity, and creates the belief that sentences of condemnation, which might be remitted and are not, are rather violent exhibitions of force than emanations of justice. What shall be said then when the sovereign grants a pardon, that is, public immunity to an individual, and when a private act of unenlightened kindness constitutes a public decree of impunity? Let the laws therefore be inexorable and their administrators in particular cases inexorable, but let the law-maker be mild, merciful, and humane. Let him found his edifice, as a wise architect, on the basis of self-love; let the general interest be the sum of the interests of each, and he will no longer be constrained, by partial laws and violent remedies to separate at every moment the public welfare from that of individuals, and to raise the appearance of public security on fear and mistrust. As a profound and feeling philosopher let him allow men, that is, his brethren, to enjoy in peace that small share of happiness which is given them to enjoy in this corner of the universe, in that immense system established by the First Cause, by Him Who Is.
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TWO: It does not follow, because the laws do not punish intentions, that therefore a crime begun by some action, significative of the will to complete it, is undeserving of punishment, although it deserves less than a crime actually committed. The importance of preventing an attempt at a crime justifies a punishment; but, as there may be an interval between the attempt and the execution, the reservation of a greater punishment for a consummated crime may present a motive for its non-completion.Less dangerous personally than the theological criticism, but more pernicious to reform, was the hostile criticism that at once appeared from the thick phalanx of professional lawyers, the sound-thinking practical men. From whom only two short extracts need be rescued from oblivion, as illustrations of the objections once raised against ideas which have since become the common groundwork of all subsequent legislation, in America as well as in Europe. The first extract is from a work on criminal justice by a lawyer of Provence, who in 1770 wrote as follows:
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THREE:CHAPTER X. SUGGESTIVE INTERROGATIONSDEPOSITIONS.It is impossible to prevent all the disorders that may arise in the universal conflict of human passions. Their increase depends on that of population and on the crossings of private interests, which cannot be directed with geometrical exactness to the public welfare. In political arithmetic the calculation of probabilities must be substituted for mathematical exactness. Glance at the history of the world, and you will see disorders increase with the increase of the bounds of empire; thus national feeling being to the same extent diminished, the general inducement to crime increases with the greater interest of each individual in such disorders, and on this account the necessity for aggravating penalties ever continues to increase.
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THREE:Judgment must be nothing but the precise text of the law, and the office of the judge is only to pronounce whether the action is contrary or conformable to it.
FORE:A man cannot be called guilty before sentence has been passed on him by a judge, nor can society deprive him of its protection till it has been decided that he has broken the condition on which it was granted. What, then, is that right but one of mere might by which a judge is empowered to inflict a punishment on a citizen whilst his guilt or innocence are still undetermined? The following dilemma is no new one: either the crime is certain or uncertain; if certain, no other punishment is suitable for it than that affixed to it by law; and torture is useless, for the same reason that the criminals confession is useless. If it is uncertain, it is wrong to torture an[149] innocent person, such as the law adjudges him to be, whose crimes are not yet proved.
THREE:There seem to be three principal reasons why, under our present system, crime still keeps its general level, irrespective of all changes in our degrees of punishment.But undoubtedly punishment, although in its origin and present intention vindictive, must exercise a certain preventive force against crime, and this preventive force can scarcely be estimated, for that which is prevented is, of course, not seen. But the efficiency of punishment as a deterrent is proportioned to its certainty, and there is a large element of uncertainty that can never be eliminated. For every malefactor there are two hopes: first, that he may escape detection or apprehension; secondly, that he may escape conviction. That his hopes of impunity are not without reason greater than his fears of punishment the following facts attest.
FORE:It were superfluous to enlighten the matter more thoroughly by mentioning the numberless instances of innocent persons who have confessed themselves guilty from the agonies of torture; no nation, no age, but can mention its own; but men neither change their natures nor draw conclusions. There is no man who has ever raised his ideas beyond the common needs of life but runs occasionally towards Nature, who with secret and confused voice calls him to herself; but custom, that tyrant of human minds, draws him back and frightens him.In such a zigzag path has our penal legislation been feeling, and is still feeling, its way, with evident misgiving of that principle of repression, as false as it is old, that an increase of crime can only be met by an increase of punishment.
THREE:Some persons have maintained that a crime, that is, an action contrary to the laws, is punishable wherever committed, as if the character of subject[193] were indelible, or, in other words, synonymous with, nay, worse than, the character of slave; as if a man could be the subject of one kingdom and the resident of another, or as if his actions could without contradiction be subordinate to two sovereign powers and to two legal systems often contradictory. So some think that a cruel action done, say, at Constantinople is punishable at Paris, for the abstract reason that he who offends humanity deserves to have collective humanity for his enemy, and merits universal execration; as if judges were the avengers of human sensibility in general, and not rather of the covenants that bind men together. The place of punishment is the place of the crime, because there, and there only, is it a compulsory duty to injure an individual, to prevent an injury to the public. A villain, but one who has not broken the covenants of the society of which he was not a member, may be an object of fear, and for that reason be expelled and exiled by the superior power of that society; but he cannot be legally and formally punished, since it is for the laws to avenge, not the intrinsic malice of particular actions, but the violation of compacts.
FORE:It would be possible to distinguish a case of fraud from a grave fault, a grave fault from a light one, and this again from perfect innocence; then to affix to the first the penalties due for crimes of falsification; to the second lesser penalties, but with the loss of personal liberty; and, reserving for the last degree the free choice of the means of recovery, to deprive the third degree of such liberty, whilst leaving it to a mans creditors. But the distinction between grave and light should be fixed by the blind impartiality of the laws, not by the dangerous and arbitrary wisdom of a judge. The fixings of limits are as necessary in politics as in mathematics, equally in the measurement[219] of the public welfare as in the measurement of magnitudes.[68]Or to take a stronger case. A deserter from the ranks escapes to his home, breaks into it at night, robs an infirm father of all the savings he has provided for his old age, and in a struggle for their possession so injures him that he dies. Must the law disclaim all indignation, all resentment, in the punishment it inflicts, and say to such a ruffian that it only deals hard with him in order to warn others by his example, and with the pious hope of making a good man of him in the future? If resentment is ever just, is it wrong to give it public expression? If it is natural and right in private life, why should it be a matter of shame in public life? If there is such a thing as just anger for a single man, does it become unjust when distributed among a million?
THREE:Ramsay argues that the penal laws of a particular country can only be considered with reference to the needs of a particular country, and not in the abstract; that the government of a country will always enforce laws with a view to its own security; and that nothing less than a general revolution will ever make the holders of political power listen for a moment to the claims of philosophers.
FORE:If we consult the human heart we shall therein discover the fundamental principles of the real right of the sovereign to punish crimes.What is the best way of preventing crimes?
THREE: Smuggling is a real crime against the sovereign and the nation; but its punishment should not be one of disgrace, because its commission incurs no disgrace in public opinion.
FORE:CHAPTER VI. IMPRISONMENT.
THREE:CHAPTER XIV. CRIMINAL ATTEMPTS, ACCOMPLICES, IMPUNITY.Is it possible, then, so beforehand to apportion punishments to crimes that when a crime is committed it shall be but necessary to refer to a code and at once detect its appropriate punishment? Or must the law be general in its language, and leave a wide margin to the discretion of the judge? Beccaria would have the judicial function confined solely to the ascertainment of the fact of a crime, its punishment preordained by the law. On the other hand it is said, that it is impossible to anticipate every case that may arise; that no two cases are ever alike; that it is better to leave the nice adjustment of penalties to the wisdom and impartiality of a judge, and only limit his discretion by rules of a most expansive description.
Perspiciatis unde omnis iste natus error sit voluptatem accu santium doloremque laudantium, totam rem aperiam, eaque ipsa quae ab illo inventore veritatis et quasi architecto beatae vitae dicta sunt explicabo.
THREE:The very severity of a punishment leads men to dare so much the more to escape it, according to the greatness of the evil in prospect; and many crimes are thus committed to avoid the penalty of a single one. Countries and times where punishments have been most severe have ever been those where the bloodiest and most inhuman deeds have been committed, the same spirit of ferocity that guided the hand of the legislator having guided also that of the parricide and assassin; on the throne dictating iron[168] laws for the villanous souls of slaves to obey, and in the obscurity of private life urging to the slaughter of tyrants, only to create fresh ones in their stead.CHAPTER XV. THE MILDNESS OF PUNISHMENTS.
Perspiciatis unde omnis iste natus error sit voluptatem accu santium doloremque laudantium, totam rem aperiam, eaque ipsa quae ab illo inventore veritatis et quasi architecto beatae vitae dicta sunt explicabo.
THREE:Given the necessity of the aggregation of mankind, and given the covenants which necessarily result from the very opposition of private interests, a scale of offences may be traced, beginning with those which tend directly to the destruction of society, and ending with acts of the smallest possible injustice committed against individual members of it. Between these extremes are comprised all the actions opposed to the public welfare which are called crimes, and which by imperceptible degrees decrease in enormity from the highest to the lowest. If the infinite and obscure combinations of human actions admitted of mathematical treatment, there ought to be a corresponding scale of punishments, varying from the severest to the slightest penalty. If there were an exact and universal scale of crimes and punishments, we should have an approximate and general test by[199] which to gauge the degrees of tyranny and liberty in different governments, the relative state of the humanity or wickedness of different nations. But the wise legislator will rest satisfied with marking out the principal divisions in such a scale, so as not to invert their order, nor to affix to crimes of the first degree punishments due to those of the last.
Perspiciatis unde omnis iste natus error sit voluptatem accu santium doloremque laudantium, totam rem aperiam, eaque ipsa quae ab illo inventore veritatis et quasi architecto beatae vitae dicta sunt explicabo.
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FORE:Some crimes are injuries to a mans person, others to his property, and the former should certainly be punished by corporal punishments.
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FORE: The more speedily and the more nearly in connection with the crime committed punishment shall follow, the more just and useful it will be. I say more just, because a criminal is thereby spared those useless and fierce torments of suspense which are all the greater in a person of vigorous imagination and fully conscious of his own weakness; more just also, because the privation of liberty, in itself a punishment, can only precede the sentence by the shortest possible interval compatible with the requirements of necessity. Imprisonment, therefore, is simply the safe custody of a citizen pending the verdict of his guilt; and this custody, being essentially disagreeable, ought to be as brief and easy as possible. The shortness of the time should be measured both by the necessary length of the preparations for the trial and by the seniority of claim to a judgment. The strictness of confinement should be no more than is necessary either for the prevention of escape or for guarding against the concealment of the proof of crimes. The trial itself should be finished in the shortest time possible. What contrast[186] more cruel than that between a judges ease and a defendants anguish? between the comforts and pleasures of an unfeeling magistrate on the one hand, and the tears and wretchedness of a prisoner on the other? In general, the weight of a punishment and the consequence of a crime should be as efficacious as possible for the restraint of other men and as little hard as possible for the individual who is punished; for one cannot call that a proper form of society, where it is not an infallible principle, that its members intended, in constituting it, to subject themselves to as few evils as possible. I lead a tranquil and solitary life, if a select company of friends in which the heart and mind are in continual movement can be called solitude. This is my consolation, and prevents me feeling in my own country as if I were in exile.
[22]The question, therefore, arises, Does crime depend to any appreciable extent on imprisonment at all, or on the length or shortness of sentences?But whatever tendency might have been arising in theory or in practice about this time to mitigate the severity of our laws was destined to receive a dead check from the publication in 1784 and 1785 respectively of two books which deserve historical recollection. The first was Madans Thoughts on Executive Justice, in which the author, adopting Beccarias principle of the certainty of punishment as the best check on crime, advocated an unflinching carrying out of the laws as they stood. It was, says Romilly, a strong and vehement censure upon the judges and the ministers for their mode of administering the law, and for the frequency of the pardons which they granted. It was very much read, and certainly was followed by the sacrifice of many lives.It would, therefore, be a mistake to ascribe to one, who only discusses social conventions and their consequences, principles contrary either to natural law or to revelation, for the reason that he does not discuss them. It would be a mistake, when he speaks of a state of war as anterior to a state of society, to understand it in the sense of Hobbes, as meaning that no obligation nor duty is prior to the existence of society, instead of understanding it as a fact due to the corruption of human nature and the want of any expressed sanction. It would be a mistake to impute it as a fault to a writer who is considering the results of the social compact[115] that he does not admit them as pre-existent to the formation of the compact itself.
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