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to the imagination, if it have a resemblance, an analogy, a common character with the offence. The law of retaliation is admirable in this respect,“ eye for eye, tooth for tooth,” &c. the most dull understanding is capable of connecting these ideas. But retaliation is rarely practicable, and, in many cases, it would be a punishment too expensive.
There are other modes of analogy. Search, for instance, for the motive in which the offence originated: you may generally encounter the ruling passion of the delinquent, and may, according to the proverbial expression, punish him in
the offending part. The offences of avarice will be properly by punished by pecuniary punishments, if admissible from the
situation of the delinquent :-offences of insolence by humiliation :-offences of laziness, by labour or compulsory inactivity *.
5. Examplary.--. real punishment, which is not an apparent punishinent, is lost to the public ; the great art consists in augmenting the apparent punishment, without augmenting the real punishment. This is attained either by the choice of the punishments, or by the striking solemnities attendant upon their execution.
The Auto de Fé's would have been one of the most useful inventions of jurisprudence, if instead of being for acts of faith, they had been for acts of justice. What is a publie
.*-Montesquieu has suffered himself to be dazzled, when, from a single perception of this quality in punishments, he thought that all arbitrary punishment might be taken away. “It is the triumph of liberty,” he says, 66 when criminal laws derive each punishment from the particular nature of the crime : all that is arbitrary is at an end : the punishment does not depend upon the caprice of the legislator, but upon the nature of the thing; and it
execution ? it is a solemn tragedy which the legislator presents to the assembled community; a tragedy truly important, truly pathetic, by its sad reality, and by the grandeur of its object; the dress, the scene, the decorations, cannot be too much studied, because the principal effect depends upon them. The tribunal, the scaffold, the robes of the officers of justice, the garments of the culprits themselves, religious ceremonies, retinues of all sorts, every thing ought to bear a seri. ous and mournful character. Why should not the executioners themselves be covered with a mourning crape? it would augment the terror of the scene, and protect these useful servants of the state from the unjust hatred of the people. If the illusion be undiscovered, the whole might pass in effigy. The reality of punishment is necessary only to support the appearance.
6. Economical.—The punishment ought to be economical; that is, it ought to have only the degree of severity which is absolutely necessary for attaining its object. Every thing which exceeds the necessity is not only so much superfluous evil, but produces a multitude of inconveniences that defeat the ends of justice.
Pecuniary punishments possess this quality in an eminent degree, because all the evil felt by him who pays, converts itself into advantage for him who receives.
is not man that commits violence upon man.”--L. xii. chap. 4. The same page contains a striking example of the errors into which he is led by this false idea: for offences against religion, he proposes religious punishments; that is to say, punishments which shall have no effect; for to punish sacrilege, in an impious man by expulsion from the church, is not to punish him; it is to take from him a thing upon which he sets no value.
7. Remissible.—The punishment ought to be remissible. It is requisite that the suffering should not be absolutely irreparable in cases in which it may happen to be discovered, that it was inflicted without lawful cause. So long as proofs are susceptible of imperfection, so long as appearances may
be deceitful, so long as men have no certain criterion for distinguishing truth from falshood, one of the first securities which they reciprocally owe to each other, is not to admit, without absolute necessity, punishments absolutely irreparable. Have we not seen all the appearances of the crime heaped upon the head of the accused, where innocence has been proved when it was too late to do more than lament over the errors of a presumptuous precipitation? Feeble and short sighted as we are, we judge as limited beings, and punish as if we were infallible.
1. To these important qualities of punishment, three other qualities, of less extensive utility may be added, and which ought not to be neglected if they can be attained without injury to the great object of example. It is one quality of punishment to be able to serve in reforming the delinquent ; I do not say only by the fear of a repetition of the punishment, but by a change in his character and in his habits. We shall attain this end by discovering the motive which produced the crime, and by applying a punishment which tends to enfeeble this motive. A house of correction for this purpose should be separated for delinquents of different
classes; to that different modes of education may be adapted to their different moral states.
2. To take away the power of injuring. ---This is an end which may be more easily attained than the correction of delinquents. Mutilations, perpetual imprisonment, have this effect : but the spirit of this maxim leads to an excessive rigour in punishment. To this may be traced the frequency of capital punishment.
If cases can be found in which the power of injuring can be destroyed only by taking away life, they are very extraordinary cases ; for instance, in civil wars, when the name of a chief, so long as he lives, is sufficient to inflame the passions of a multitude : and even death, applied to actions of such a problematical nature, should be considered rather as an act of hostility than as a punishment.
3. To furnish a recompence to the injured party is another useful quality in a punishment. This is a mode of producing two effects at the same time ; to punish an offence, and to repair it ; to take away all the evil of the first order, and to tranquillize all the alarm. This is a characteristic advantage of pecuniary punishments.
I shall conclude this chapter with a general observation of great importance. In the choice of punishments the legislator ought carefully lo avoid those which offend established prejudices. If a decided aversion be formed in the mind of the people, against any kind of punishment, although it possess every other requisite quality, it ought not to be admitted into the penal code, because it will produce more evil than good. At first it is an evil to inflict the public with a painful sentiment by the establishment of an unpopular punish:ment. It is not the guilty alone whom it punishes : but the most innocent and mild members of the community endure a very real although nameless punishment, in the wounds which violence and tryanny inflict upon their sensibility. What can result from conduct so little founded in judgment, but that the contempt, shewn by the legislator for the public sentiments, is secretly reflected upon himself? He loses the assistance voluntarily lent by society to the execution of a law which it approves; it has the people no longer for an ally, but an enemy: some endeayour to facilitate the
of the guilty; others are scrupulous with respect to prosecuting ; wit
hesses are unwilling, and suppress the truth : a baneful prejudice insensibly increases; whilst shame and reproach are attached to the execution of the law. The general dissatisfaction may be carried to a greater extent : it sometimes bursts forth into open resistance either to the officers of justice, or to the execution of the sentences. Success against authority appears to be a victory to the people; and the unpunished delinquent triumphs over the feebleness of the kumiliated laws.
It is by the bad choice of punishments that they are almost always rendered unpopular. The more the penal code is conformable to the rules which we have laid down, the more it will insure the enlightened estecm of intelligence, and the sentimental approbation of the multitude. Punishments so framed will be found to be just and moderate : we shall above all be struck with their fitness; with their analogy to the offences; with that scale of gradation, in which we shall see an aggravated offence correspond with an aggravated punishment, an extenuated offence with an extenuated punishment. This kind of merit, founded upon domestic and familiar notions, is intelligible to the meanest understanding. Nothing is more proper to give the idea of a paternal government, to inspire confidence, and to make the public opinion go hand in hand with authority. When laws are approved by the people the chances of escape are reduced to their lowest term.
+ This title, from page 216, instead of being Dumont, ought to have been Bentham. The Extracts are taken from a work enti. tled “ Traités de Législation, par Mr. Jérémie Bentham. Juris. consulte Anglois publies en François par E. Dumont de Genève, d'après les manuscrits confiés par l'Auteur.