Part 2

XXV. From what has been premised, it is evident that a Judge can never properly receive from a suitor any compliment or acknowledgment, on account of having dispatched his cause, because he cannot be supposed capable of doing him any favour, and consequently is not entitled to any recompence. The ministers of justice ought to resemble the heavenly bodies, who bestow great benefits on the earth, although they receive nothing from it; for it is their duty, and incumbent on them, to confer those benefits. They receive their reward and support from the great Sovereign of all, who has assigned them their stations and their duties, and the assistance of their light and their influence is a debt they owe to the inferior world; but the inferior world is not charged with obligations to them.

XXVI. Even the visit to return thanks, which after the suitor has got his cause, is made by him to the Judges, I look upon as superfluous. For what does he thank them? For having given him what belonged to him and was his own. They are entitled to no thanks for that; and if they have given him what was the property of another man, they deserve punishment.

XXVII. What has been said on the subject of brevity and dispatch, is equally pertinent to criminal as well as civil causes. The person accused has a right to be cleared if he is innocent, and his punishment is a debt due to the public if he is guilty; and it is generally expedient, for one or other of these parties to be pressing for dispatch. It is very clear, that proceeding with caution in criminal cases is necessary, lest you fall into the serious mischief, of punishing as guilty people those who are innocent. But standing still and doing nothing, is not proceeding with caution; neither is thinking no more of those in the dungeon, than of those in the grave.

XXVIII. Besides the reasons for dispatch, which are common to, and apply equally to both sorts of causes; there is one of special note, and great weight, which points out why it is most necessary in criminal ones; and that is, delay being frequently the cause of malefactors escaping without punishment. This happens by two ways: the first is, that by delaying the process, there is more time given to the culprits to contrive and execute their escape from prison, which when these fierce savages have effected, they are commonly seized with a rage, of recovering in a few days, the time they have been deprived of by their confinement, to commit outrages; and they fancy they have a right to revenge themselves by new schemes of roguery, for the punishment they have undergone by having been chained and fettered. There is scarce an innocent person whom they do not regard as their enemy, and those only who are their brethren in iniquity, are exempted from their fury and indignation.

XXIX. This is the common way of their revenging themselves in general, but their malice and resentment towards particular people is the most pernicious to the public; those who are most threatened with their vengeance, being such as have in any shape been instrumental in their confinement, or in having them brought to justice.

XXX. The second way, by which delays in criminal prosecutions afford occasions for delinquents to escape with impunity, is not so palpable, nor so obvious as the first, but in general is more successful, and oftener takes effect. I will explain what I mean. When a notorious crime is newly committed, all minds are sharpened against the offender, and filled with horror at the outrage. Even the most mild call out for punishment, and the injured person, invokes heaven and earth for it. The public in general seem filled with resentment, and breathe nothing but severity. All this indignation, in the course of a short space of time, begins to lessen, and by little and little, this fierce fire proceeds to vanish in smoak; and the further we advance from the æra of the fact, the less impression of the deed is left on the mind; and in our conversation on the subject, we begin to mix apophthegms of compassion with theorems of justice; and by so much the longer the cause is delayed, by so much the more our zeal abates; we pass from hot to lukewarm, and from lukewarm to actual cold. The suspension of half a year, changes the burning heats of July, to the cool air and frosts of January. People breathe nothing but pity, and every thing seems in favour of the culprit, except his crime. The supplicants in his behalf are numerous, many from compassion, and some from friendship or interest. When the tempers of people are brought to this disposition, the culprit, who but a little before, in the universal opinion, was deemed deserving of a halter, is released from prison, without undergoing a punishment that is equal to a pat with the open hand.

XXXI. I have often wondered at the favourable manner in which criminals are sometimes treated, when there does not appear any reason, or motive, for being favourable to them; but it should be remembered, there is always a motive for bringing them to justice. God commands it, and the public safety requires it; and the community has a right to demand, that delinquents should be chastised; for the impunity of evil deeds multiplies the number of evil doers. In consequence of saving one malefactor from the gallows who is deserving of death, many innocent people may afterwards lose their lives, or their fortunes. O mercy ill understood! O impious compassion! O tyrannic pity! O cruel pity!

XXXII. I do not deny that criminals should sometimes be pardoned; but then it should only be in those cases, where the public is as much, or more, interested in their forgiveness, than it is in their punishment. The public good is the true north, to which the wand of justice should always point. The services the guilty person has done to the commonwealth, or those which he may be expected to do to it, on account of his singular talents for doing them, are special and material considerations in such a case. The law furnishes precepts conducive to this end, in formal terms. Therefore, the death which Manlius Torquatus inflicted on his brave son, when he returned victorious, for having fought without orders, was contrary to the rules of equity. What more could have been done to one, who had returned vanquished, and who had no antecedent merit to plead which might entitle him to a pardon?

XXXIII. Princes have a larger discretionary power in these matters, than their ministers of justice; not because they can pardon according to their will and pleasure; for they must be guided by their obligations to God and the commonwealth; but because the general or common interests, are more proper objects for their consideration, than for that of particular Judges. With regard to a sovereign, not only the personal services of the guilty individual, but those also of his near relations, such as his father, his wife, his brothers, and his sons, may furnish motives for conciliating a pardon, or for mitigating the punishment; and this has always been the practice of the most illustrious princes. It is masterly policy, to inform generous minds by such instances of clemency, that they cannot only acquire merit for themselves, but for their relations also. Great benefit may be derived to the community from this incentive; and many other methods of deriving advantages to the public, by a judicious dispensation of lenity or pardon, may be hit upon by princes, although it is not easy for me to point out or enumerate them.

XXXIV. In crimes committed through inattention or weakness, there is a large scope allowed for the exercise of pity or forgiveness. The laws themselves allot less punishments for such offences, which punishments the prince, in some cases, may totally and consistently dispense with. I will give an example. It having come to the knowledge of Pyrrhus king of the Epirots, that some young fellows in their cups had murmured against, and cast sharp reflections upon him; he caused them to be brought into his presence, where he asked them, if it was true that they had said such and such things; to which one of them, who was a candid spirited lad, answered, Yes, sir, it is true, that after having drank plentifully, we did say what you have mentioned; and if we had drank more, we should have talked more in the same strain. Pyrrhus pardoned them, and in my opinion he acted wisely. It was a great mitigation of such a fault, that the offence was committed under a kind of perverted state of the understanding; and as it was entirely personal against the King, his pardoning it had an air of generosity, which tended to augment the love and respect of his subjects, a consideration of great importance in all kingdoms. By this mode of proceeding, the public gained a great deal more, than it was possible it could lose by such a crime going unpunished.

XXXV. But waiving the particular circumstance of their being in liquor, which lessened the offence of those young fellows; the shewing indulgence and lenity by Princes, to those who cast personal reflections on them, will always have a good effect; because by acting in this manner, they manifest their clemency, and cause the reflection itself to be discredited. The evil-speaking of a few subjects, cannot take from sovereigns any thing like the proportion of respect, which the opinion of their being clement and magnanimous, would gain them with all their other subjects. The delinquent himself would be put to shame by the pardon, because, if he considers it as an act of generosity and lenity, it proves to him that he murmured without reason; and if he thinks the gentleness proceeded from contempt, no other punishment could mortify him so much, or be better adapted; and this is the proper way of chastising insolencies of the tongue, because, by proceeding in any other manner, you would feed the vanity of murmurers, and beget in them a presumption that they were feared; you would also inflame their hatred, and stimulate their rashness. It has been remarked, that princes, who have been very solicitous in fishing out and punishing the murmurs of juntos of people, have increased those evils in their own time, and have eternized them to posterity. This is a Hydra, the number of whose heads is multiplied by vengeance and the knife, and who is suffocated by the fumes of contempt.

XXXVI. The behaviour of our gracious and magnanimous King Philip V. may serve as a pattern, for the application of this mixture of severity and clemency, which the virtue of justice requires of Princes. Inexorable with regard to those serious crimes that were to the prejudice of a third person, he always shewed a generous indulgence to those which only respected himself. In the civil wars of some years back, when the agitation of the winds was such, as to cause even the rocks and mountains to shake; when the constancy of many wavered, and they sought pretences for loyalty in desertion itself; he winked at many offences of deeds, and pardoned all those of words, which did not relate to, or were not connected with, the deeds themselves. This augmented the love of all those hearts who were faithful to him, and in the end was productive of fidelity in the hearts of all men.

XXXVII. But to return to the subject of severity in punishing crimes, and the duties of a magistrate in that respect; I say that severity is not only necessary for the good of the public, but that it is also beneficial to the criminal himself. It is a received opinion, that those who die by the hand of Justice, rarely go to a state of condemnation. All appearances persuade such a belief, and there are certain parts of written revelation, which seem to confirm the sentiment. What benefit then do you confer on a malefactor, who if he dies by the halter, takes his flight to a state of bliss; and who, if he afterwards loses his life in some of those adventures which are incident to his profession, is launched into perdition?

XXXVIII. With respect to certain sorts of crimes, in some instances where I have wished to see Judges very solicitous to inflict punishment, I have observed them very indulgent. I speak of those faults in the practice of the law, which are committed by people of the profession, and those who know the true state and secrets of causes, and who intervene as instruments in the prosecution of them; such as the advocate, the solicitor, or the attorney, to which we may add the witnesses also. The tribunal is a whole of such delicate contexture, that there is no integral part of it whatever, which is not essential. It is a machine, in which, a failure, false construction, or weakness of the most minute wheel, disorders all its movements. Of what avail is it, that the Judges are upright, if the proceedings and informations come adulterated to their hands and ears? The greater their integrity, the more certain in the issue would be the pronunciation of a false and unjust sentence; because the judgment would be founded, on the vitiated proceedings and testimony which had been laid before them. Among the Japanese, they punish with the utmost severity, all false information which is given to Judges with respect to causes they are trying, even when it is preferred by a party interested. This appears to me excellent policy. The way to make the road to justice smooth and secure, is to disincumber it of all impediments to the advancement of truth; and to do this, there is no alternative, but that of punishing lyes with the utmost severity.

XXXIX. If it is objected, that this would be excess of rigour, because the punishment might exceed the proportion of the crime; I answer, that Lawyers should weigh crimes in a different manner from Theologians. The Theologian examines the intrinsic malice or evil of the act: the lawyer attends to the consequences that may result to the public; and these may be important, although the fault may at first sight appear light and trifling. It is true, that the Theologian considers the consequences also, when it appears that the delinquent foresaw them, and in that case regards this circumstance as a proportionable aggravation of the crime _in foro conscientiæ_. The Lawyer cannot, nor does it belong to him, to enquire whether the culprit foresaw them; for he is only to apply the remedy the law has prescribed to prevent the mischief; and thus, for the sake of example to the world at large, the offender is punished in the same manner as if he had actually foreseen the mischief.

XL. Let us now consider, that the falsehoods and deceits, with which tribunals are environed, make the investigation of truth so difficult, that in some causes it is come at late, and in others never. This is a most pernicious injury to the public, for the tediousness and difficulty of the verification, gives breathing-time for the ill intentioned, to devise and concert all sorts of wickedness. What remedy then can you apply to this evil, but that of punishing rigorously every kind of judicial deceit? The most pernicious loss or disadvantage to a commonwealth, does not consist so much in there being a great number of members in it who do not fear God, as it does in those members who do not fear God, not fearing the magistrate neither.

XLI. I am not surprized that there are so many false witnesses, when I observe the lenity that is shewn to them. Among the eastern nations, according to Strabo, they used to cut off their feet and their hands. And Heraclides says, that among the Lycians, they used to confiscate all their effects, and sell them for slaves. Alexander of Alexandria relates, that the Pysidians threw them headlong from a high precipice. In the Helvetic history, we read, that the magistrates of Bern put to death two witnesses by boiling them in oil, for having deposed falsely, that one citizen owed another a large sum of money.

XLII. When I contemplate how necessary rigour is in such matters, none of these punishments strike me with horror. The most just and reasonable punishment for this mischief, and the best adapted for the purpose, is the Lex Talionis, which was dictated by the Divine mouth, and which God ordained to be established among the people of Israel, and which is also recommended by various texts of the civil law. It was in use in Spain, according to the practice of the antient law, called the law of Toro. But ultimately, on account of its not being adapted to all cases, Philip the IId. leaving it in its full vigour with respect to capital cases, where the false witness was to suffer the same punishment, which, if his evidence had taken effect, was to have been inflicted on the person accused; I say, with this exception, he ordained for all other cases of perjury, that the delinquent should be exposed to public shame and disgrace, and condemned to perpetual imprisonment in the gallies. But when will these laws be put in execution? I don’t know whether in the long course of my life, I have once seen the application of them. What most commonly happens is, that just as they are on the point of determining on the sentence, Pity violently and abruptly enters, and makes her appearance in the court; and upon contemplation of this most serene lady, the Judges, instead of public shame and perpetual confinement in the gallies, decree a fine or pecuniary punishment.

XLIII. The words of God to Moses, when he spoke to him of false witnesses, as related in the ninth chapter of Deuteronomy, are very remarkable; he says, _non misereberis ejus_. No, Moses; have no tenderness, no compassion, nor any bowels or pity for such. The decree seems rigid, and so it does; but it is absolutely necessary also. With a false witness, all should be rigour, without the least mixture of clemency: _non misereberis ejus_. And so it is fit it should be; for if it was otherwise, who would be safe in their property, their honour, or their lives? This is not in reality abandoning or losing sight of compassion, but fixing your attention to it on the proper objects; it is turning the eyes of pity from a guilty individual, and placing them on an innocent multitude.

XLIV. The same sort of punishment, which is inflicted on a false witness, having regard to proportioning the quantum of it to the nature or degree of the offence, should be applied to all those, who deceive, or in any shape procure deceit to be practised on Judges, in the business of trying a cause. It is necessary, in order to insure justice, to smooth the way by which truth is to advance to the tribunal, although it should be done with fire and sword. All that would be expended in rigour on this side, would be saved with interest on the other. By so much the more the proof of offences is facilitated, by so much the less will the number of them be; and the less frequent the sad spectacle of executions is, so much the less will the innocent suffer. Dispatch in civil causes, is also a matter of great importance, and should be added to the catalogue of these utilities.

XLV. On this account, I am of opinion, that no indulgence, or remission whatever, should be allowed at the instance of an advocate, upon a suggestion of false citations, or mistakes in terms of law (leaving however such cases to discretion, which may be attributed to the equivocal meaning of words, or accidental omissions); but abstracted from this exception, such attempts, if you consider them, are contrary to the virtue and essence of justice, and should not be permitted to succeed.

XLVI. Neither should the advocate escape without severe punishment, who espouses causes which are evidently unjust; and I think the most proper penalty which could be inflicted in such cases, would be a long suspension from the exercise of his function; and a Solicitor should be treated in the same manner, who raises impertinent difficulties, and makes frivolous objections, with a view of creating delay. But, O pernicious lenity! already these serious offences, which are contrary to good faith, and the true spirit of law, are judged to be sufficiently punished by a verbal reprehension. This is a weak bridle, to curb and restrain the impulses of avarice, ambition, love, fear and hatred, five enemies of justice, who alternately, according to the power or influence of the parties to the cause, incite judicial ministers to violate the chastity of their office.

XLVII. We in all parts hear complaints against the proceedings of Justices, their clerks, and other attendants on them. I believe, if all the delinquents of this class were punished according to their deserts, we should see an infinite number of the wands and pens of Spain converted to oars. These people are accused of, and supposed to make a trade of their profession. If all be true that is said of them, it seems as if the Devil, who after his own manner is always endeavouring to imitate the works of piety and benevolence, upon seeing the church had founded some convents of religious Mendicants, for the benefit and salvation of souls, had a mind to found in these gentry, a Mendicant irreligion, for the perdition of them. Their duty is to apprehend, or cause to be apprehended, thieves and robbers; their practice is, instead of taking the thief, to take something of or from him; and there are few delinquents who are not suffered to go at large, and with impunity, provided they have something large to bestow for being winked at. It is very difficult to detect collusions of this sort; but in proportion to this difficulty, should be the rigour of punishing them. If out of a great number who practise these iniquities, you should be only able to prove the guilt of one, it would be necessary to proceed with such severity against that one, as might terrify all the rest; that if they are not alarmed by the frequency of the punishment, they should be made to dread the weight of it.

XLVIII. Having before touched upon mulcts or pecuniary punishments, I will here frankly make known to you a reflection, which many years ago occurred to me on this mode of punishing, and which occasioned me to look upon it in no very favourable light. I say, I have considered that the burden of the mulct is not only loaded on the shoulders of the guilty, but many times sits equally, if not more heavy, on those of the innocent. A father of a family, with a scanty income, commits a crime, and by way of chastising him, he is fined a hundred ducats. The substraction of this sum, is not felt by him only who was guilty of the offence, but by his wife and his children also; and they are those who commonly suffer the most; for as every one loves himself better than his nearest relations, and the delinquent being master of the house, he keeps as large a share of the good things it contains for his own use as he thinks proper, and seldom curtails himself of the gratifications he enjoyed before, either with respect to food, raiment, or diversions. The saving to make good the sum taken from him is pinched out of the rest of his household. His own expences are the same, and the inconvenience occasioned by the deduction is chiefly borne by his wife and children. Don’t be surprized then, that I look with an unfavourable eye on a punishment, the greatest portion of which falls more on the innocent than the guilty. I confess, however, that many times this is unavoidable, and the levying pecuniary penalties established by law, for certain offences and neglects, is inevitable; besides which, there is a necessity to distrain for money, to defray the expences of law charges. What can be done then in this case? Why, you can only determine, to reduce this mode of punishment, within as narrow a compass as possible.