ONE:There are, however, certain limitations even to the supposed universality of the custom. For the Roman jurists did not consider a re-conviction as a circumstance in itself which justified aggravation of punishment; and all that can be gathered from some fragments in the Pandects and Code is, that some particular cases of repeated crimes were punished more severely than a first offence. But they were crimes of the same kind; and a man whose first crime[91] was a theft and whose second was an assault would not have incurred an aggravated penalty. It is the same to-day in the Austrian, Tuscan, and a few other codes: a second crime is only punished more severely as a second crime when it is of the same kind as the first, so that it would not suffice to prove simply a previous conviction for felony irrespective of the particular sort. There is also another limitation that has sometimes been recognised, for in the Roman law the rule of an increased penalty fell to the ground, if three years elapsed without offence between the punishment for one crime and the commission of a second.[49]No inconvenience that may arise from a strict observance of the letter of penal laws is to be compared with the inconveniences of subjecting them to interpretation. The momentary inconvenience in the former case involves, indeed, correcting the words of the law which are the cause of the uncertainty, a task both easy and necessary; but the fatal licence of arguing, the source of so many arbitrary and venal disputes, is thereby prevented. When a fixed code of laws, which must be observed to the letter, leaves to the judge no further trouble than to inquire into the actions of citizens and to decide on their conformity to the written law; when the standard of just and[129] unjust, which should equally direct the actions of the ignorant citizen as of the philosophical one, is not a matter of controversy but of fact; then are people no longer subject to the petty tyrannies of many men, which are all the more cruel by reason of the smaller distance that separates the sufferer from the inflictor of suffering, and which are more pernicious than the tyrannies of a single man, inasmuch as the despotism of many is only curable by that of one, and a despots cruelty is proportioned, not to the power he possesses, but to the obstacles he encounters. Under a fixed code of laws citizens acquire that consciousness of personal security, which is just, because it is the object of social existence, and which is useful, because it enables them to calculate exactly the evil consequences of a misdeed. It is true they will also acquire a spirit of independence, but not such a spirit as will seek to shake the laws and prove rebellious against the chief magistrates, except against such of them as have dared to apply the sacred name of virtue to a spiritless submission to their own self-interested and capricious opinions. These principles will displease those who have assumed the right to transfer to their subordinates the strokes of tyranny they themselves have suffered from their superiors. I personally should have everything to fear, if the spirit of tyranny and the spirit of reading ever went together.
FORE:Some courts promise impunity to an accomplice in a serious crime who will expose his companions, an expedient that has its drawbacks as well as its advantages. Among the former must be counted the national authorisation of treachery, a practice which even criminals detest; for crimes of courage are less pernicious to a people than crimes of cowardice, courage being no ordinary quality, and needing only a beneficent directing force to make it conduce to the public welfare, whilst cowardice is more common and contagious, and always more self-concentrated than the other. Besides, a tribunal which calls for the aid of the law-breaker proclaims its own uncertainty and the weakness of the laws themselves. On the other hand, the advantages of the practice are, the prevention[164] of crimes and the intimidation of the people, owing to the fact that the results are visible whilst the authors remain hidden; moreover, it helps to show that a man who breaks his faith to the laws, that is, to the public, is likely also to break it in private life. I think that a general law promising impunity to an accomplice who exposes a crime would be preferable to a special declaration in a particular case, because in this way the mutual fear which each accomplice would have of his own risk would tend to prevent their association; the tribunal would not make criminals audacious by showing that their aid was called for in a particular case. Such a law, however, should accompany impunity with the banishment of the informer. But to no purpose do I torment myself to dissipate the remorse I feel in authorising the inviolable laws, the monument of public confidence, the basis of human morality, to resort to treachery and dissimulation. What an example to the nation it would be, were the promised impunity not observed, and were the man who had responded to the invitation of the laws dragged by learned quibbles to punishment, in spite of the public troth pledged to him! Such examples are not rare in different countries; neither, therefore, is the number small, of those who consider a nation in no other light than in that of a complicated machine, whose springs the cleverest and the strongest move at their will. Cold and insensible to all that forms the delight of[165] tender and sensitive minds, they arouse, with imperturbable sagacity, either the softest feelings or the strongest passions, as soon as they see them of service to the object they have in view, handling mens minds just as musicians do their instruments.
FORE:Lastly, the surest but most difficult means of preventing crimes is to improve educationa subject too vast for present discussion, and lying beyond the limits of my treatise; a subject, I will also say, too intimately connected with the nature of government for it ever to be aught but a barren field, only cultivated here and there by a few philosophers, down to the remotest ages of public prosperity. A great man, who enlightens the humanity that persecutes him, has shown in detail the chief educational maxims of real utility to mankind; namely, that it consists less in a barren multiplicity of subjects than in their choice selection; in substituting originals for copies in the moral as in the physical phenomena presented by chance or intention to the fresh minds of youth; in inclining them to virtue by the easy path of feeling;[251] and in deterring them from evil by the sure path of necessity and disadvantage, not by the uncertain method of command, which never obtains more than a simulated and transitory obedience.DEI DELITTI E DELLE PENE. TO THE READER.
FORE:A childs simple philosophy of punishment therefore is after all the correct one, when it tells you without hesitation that the reason a man is punished for a bad action is simply because he deserves it. The notion of desert in punishment is based entirely on feelings of the justice of resentment. So that the[83] primary aim of legal punishment is precisely the same as may be shown historically to have been its origin, namely, the regulation by society of the wrongs of individuals. In all early laws and societies distinct traces may be seen of the transition of the vendetta, or right of private revenge, from the control of the person or family injured by a crime to that of the community at large. The latter at first decided only the question of guilt, whilst leaving its punishment to the pleasure of the individuals directly concerned by it. Even to this day in Turkey sentences of death for murder run as follows: So-and-so is condemned to death at the demand of the victims heirs; and such sentences are sometimes directed to be carried out in their presence.[45] By degrees the community obtained control of the punishment as well, and thus private might became public right, and the resentment of individual injuries the Retributive Justice of the State.But ought such a crime to be let go unpunished in the case of a man who has no effects to lose? No: there are kinds of smuggling of so much importance to the revenue (which is so essential and so difficult a part of a good system of laws), that such a crime deserves a considerable punishment, even imprisonment or servitude; but imprisonment and servitude conformable to the nature of the crime itself. For example, the prison of the tobacco-smuggler ought not to be the same as that of the assassin or the thief; and the labours of the former, limited to the work and service of the very treasury he wished to defraud, will be the punishments most conformable to the nature of his crime.
