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PublishED IN THE YEAR 1799.
After having considered offences as diseases in the bo:ly politic, we are led by analogy to consider, as remedies, the modes of preventing and repairing them.
These remedies may be arranged under four heads :
1. Preventive remedies,
If the evil of the punishment exceed the evil of the offence, the legislator will have produced more suffering than he has prevented. He will have purchased the excmption from one evil, at the price of a greater evil.
Place two tables before you; one representing the evil of the offence; the other the evil of the punishment.
The evils produced by a penal law are, 1st. The evil of coercion. It imposes a privation more or less painful according to the degree of pleasure which may be given by the thing prohibited. 2dly. The sufferings occasioned by the punishment, when the offenders are punished. 3dly. The evil of 1
apprehension, suffered by him who has violated the law, or, who fears that he will be accused of having violated it. Athly, Evil of false prosecutions : this inconvenience, attached to all penal laws, is particularly attendant upon obscure laws, and offences of imaginary evil: a general antipathy produces an alarming disposition to prosecute and condemn upon suspicions or appearances. 5thly, Derivative evil, suffered by the relations or friends of him who is exposed to the rigor of the law.
Such is the table of evil, or of the expense, which ought to be considered by the legislator every time he enacts a punishment.
OF THE PROPORTION BETWEEN CRIMES AND
llor. L. 1. Sat. 111. line 118.
Montesquieu perceived the necessity of a proportion between crimes and punishments : Beccaria insisted upon its importance : they however, have rather recommended than explained it. Let us endeavour to give the chief rules of this moral arithmetic.
First Rule.--Let the evil of the punishment exceed the advantage of the offence.
To prevent the offence, it is necessary that the repulsive motive should be stronger than the attractive motive : more
fear ought to be excited from the punishment, than desire from the crime.
Second Rule.—The severity must be increased as the certainty is diminished.
No person engages in crime, but from the hope of impunity: if the punishment consisted merely in depriving the offender of the spoil which he has gained, and this punishment were invariably inflicted, such crimes would no longer exist.
The more the certainty can be increased, the more the severity may be diminished.
Punishment ought to be inflicted soon after the crime is committed : the impression upon the mind is weakened by the distance: and the distance of the punishment adds to its uncertainty, by giving new chances of escape.
Third Rule.--If two offencës happen to concur, the most injurious ought to be subjecied to the greatest punishment.
Two offences may be said to concur when a man has the power and the inclination to commit both.-A robber may content himself with robbing; or he may begin by assassination, and end by robbing. The assassination ought to be punished with greater severity than the robbery.
This rule would be perfect, if every portion of evil were attended by a correspondent portion of punishment. When the punishment for stealing ten pounds, is the same as for stealing twenty pounds, who would steal the smaller sam? An equal punishment for unequal offences is often a motive in favour of the greater offence.
Fourth Rule.--The greater the offence, the more severe may be the punishment adopted for the chance of its pre. Tention.
Punishment is a certain expense for the purchase of an uncertain advantage : to apply great punishments to small offences, is to pay extravagantly for the chance of exemption from a trifling evil.
Fifth Rule.--The same punishment ought not, without exception, to be inflicted for the same offence, upon different delinquents : but circumstances which influence the sensibility ought to be taken into consideration.
The same nominal punishments, are not the same real punishments : age, sex, rank, fortune, and many other cir. cumstances, ought to modify the punishment for offences of the same nature.
There is no necessity to weigh the proportion with mathematical precision, so as to render the laws subtle, complicated and obscure. Conciseness and simplicity are to be first considered. Something of the proportion may be sacrificed to make the punishment more awful, more adapted to excite a sentiment of a version from vices which lead to crimes.
OF THE CHOICE OF PUNISHMENTS.
A punishment, to adapt itself to the rules of proportion which we have established, should have the following qua. lities.
1. It ought to be susceptible of increase and diminution, so as to conform itself to the variations in the degree of
offences. The chronic punishments, such as imprisonment and banishment, eminently possess this quality. They are divisible into portions of different magnitude. It is the same with respect to pecuniary punishment.
2. Uniform.—It is necessary that, a quantity being given, it should be the same to different offenders guilty of the same offence, so as to correspond with their different degrees of sensibility. This requires attention to be paid to age, to sex, to condition, to fortune, to the habits of individuals, and to many other circumstances ; otherwise the same nominal punishment, being too great for one, too small for another, may exceed or fall short of its object. A fine fixed by the law, can never be an uniformn punishment, according to the difference of fortunes. Banishment may be attended with the same inconvenience : for one too severe ; for another too mild.
3. Commensurable. If a man have two offences in contemplation, the law ought to give him a motive to abstain from the greatest. He will have this motive, if he can see that the greatest offence will draw down upon him the greatest punishment. It is necessary then that he should be able to compare these punishments with each other, to measure their cifferent degrees.
There are two modes of attaining this object.
Ist. By adding to a certain punishment another quantity of the same sort: for instance, to five years imprisonment for such an offence, two years more for such an aggravation. 2dly. By adding a puriishment of a different kind; for instance, to five years imprisonment for such an offence, a public ignominy for such an aggravation.
4. Analogous to the offence, the punishment will imprint itself on the memory, it will present itself more forcibly