The Sphere and Duties of Government/Chapter 13
ON THE SOLICITUDE FOR SECURITY AS MANIFESTED IN THE PUNISHMENT OF TRANSGRESSIONS OF THE STATE'S LAWS.
The last, and perhaps the most important, of the means adopted for preserving the security of the citizens, is the punishment of transgression of the State's laws; and, in pursuance of the plan I proposed to myself, it now becomes me to apply to this also the fundamental principles we have already agreed on. Now the first question which presents itself here is this: what are the actions which the State can punish and brand as crimes? The answer readily suggests itself from what we have before observed. For as the State is not allowed to propose any other end to its activity than the security of its subjects, it may not impose restrictions on any other actions than those which run counter to this ultimate object. But it also follows as clearly that all such actions deserve a just measure of punishment. For (seeing that they disturb and destroy that which is most essential to human enjoyment as well as development) not only is their hurtfulness too serious, that we should not resist their influence by every means consistent with the end and accordant with morality, but it follows, further, from the principles of right, that every one must suffer the punishment so far to invade the province of his own right as the crime he has committed has penetrated into that of the other. But to punish actions, on the contrary, which relate to the agent only, or which are done with the consent of the person who is affected by them, is manifestly forbidden by the same principles that do not allow of their limitation; and hence none of the so-called carnal crimes (rape excepted), whether creating offence or not, attempted suicide, etc. ought to be punished, and even the taking away a man's life with his own consent should be exempt from punishment, unless the dangerous abuse of this exemption should seem to necessitate a criminal law. Besides those laws which prohibit immediate violations of the rights of others, there are still others of a different kind which we have already partly discussed, and must now again consider. Since, however, with regard to the ultimate object we have prescribed to the State, these laws (although only mediately) conduce to the attainment of that design, State punishments can apply to these in so far as this punishment is not implied in the transgression itself; as, for instance, in the breach of the prohibition of fidei commissa, the invalidity of the dispositions follows as a consequence. This is the more necessary, as there would otherwise be an utter want of coercive means for securing due obedience to the laws. From these considerations on the cases to which punishment is to be applied, I shall now proceed to consider the measure in which it is to be inflicted. I believe it to be impossible in general reasoning, which has no absolute reference to any particular local circumstances, to prescribe its due measure even within ample limits, or to fix on the point beyond which it should never go. Punishments must be evils which deter and intimidate the criminals. Now, their degrees must be as infinitely varying as the difference of physical and moral feeling, according to the difference of the zones and ages. That which may be justly called cruelty in one case may be positively demanded by necessity in another. Thus much alone is certain, that, the same efficiency being preserved, the system of punishment becomes more perfect in proportion as it becomes more mild. For not only are mild punishments lesser evils of themselves, but they lead men away from crime in a way the more worthy of human nature. For the less bodily painful and terrible they are, the more do they become so in a moral point of view; while excessive physical suffering tends to lessen the sense of shame in the sufferer himself, and, in the spectator, that of indignation and censure. And from this we see that mild punishments might be much more frequently employed than at first sight would seem possible; since they gain, on the other hand, a compensating moral weight and efficiency in proportion to their mildness. The efficiency of punishments depends entirely on the impression they make respectively on the soul of the criminal; and we might almost affirm that, in a regularly graduated series, it would be indifferent where we might determine to pause as at the highest degree, since the actual efficiency of a punishment does not so much depend on its absolute nature, as on the relative place it occupies on the scale of punishments, and since that which the State declares to be the highest punishment is readily acknowledged to be such. I say we might almost affirm; for this assertion would only hold good when the punishments inflicted by the State were the only evils to be dreaded by the citizen. But so far is this from being the case, that often it is real evils which urge him actually to the commission of crime and hence the measure of the highest punishment, and therefore of the punishments in general, intended to counteract these evils, must be deter- mined with reference to them as well. Now, where the citizen enjoys such ample freedom as that which these pages advise, he will live in greater comfort, his soul will become more calm and composed, his imagination more beautiful, and punishment will admit of much relaxation in severity, while it loses none of its real force and efficiency. So true it is that all things good and beneficent in themselves are so blended together in a wonderful harmony, that it is only necessary to introduce one of these elements, to realize the blessed influences which flow from all the others. The general conclusion, then, to be derived on this point I take to be this, that the highest punishment should be that which is the mildest possible, under existing local circumstances. There is but one kind of punishment, I think, which should be wholly excluded, and that is the loss of honour, the brand of infamy. For a man's honour and the good opinion of his fellow-citizens, is something which lies wholly beyond the reach of the political power. At most, then, such a punishment must be reduced to this: that the State may deprive the criminal of the characteristic signs of its own esteem and confidence, and leave to others the option of doing this with impunity. However unquestionable its claim to such a right may be, and however duty may seem to demand its employing it, I nevertheless cannot but con- sider the general declaration of its intention to avail itself of such a privilege, as by no means advisable. For, firstly, it presupposes in the person punished in such a way, a certain persistency in wrong which is but rarely found in actual experience ; and, secondly, even in its mildest expression (or if it went no further than to declare a just want of confidence on the part of the State), it is always too indefinite not to create much abuse, and, if merely for consistency's sake, would often embrace more cases than might really be necessary. For the kinds of confidence that may be extended to a man are, according to different cases, so infinitely manifold in their nature, that I hardly know of any crime which would shut out the criminal from the whole of these at once. But there is always a general expression of mistrust in such cases, and the man of whom it would be remembered only on parallel occasions that he had transgressed any particular law, carries about with him at all times an air of suspicion. Now, how hard such a punishment must be, we know from the feeling so common to all, that without the confidence of one's fellow-men life itself ceases to be desirable. Moreover, many other difficulties present themselves when we look more closely at the way in which such a punishment shall be applied. Mistrust of honesty will always follow where the want of it has been manifested. Now, to what an infinity of cases such a punishment would have to be extended requires nothing to show. No less difficult is the question, as to how long the punishment shall last. Every justly-thinking man would undoubtedly wish to confine its operation to a certain period. But will the judge be able to contrive that one who has so long borne the load of his fellow-citizens' mistrust, may at once regain their confidence on the expiration of a certain day? Lastly, it does not agree with the principles which run through this essay, that the State should give a definite direction to the opinions of the citizens in any way whatever. According to my views, therefore, it would seem well for the State to confine itself to the exercise of this its incumbent duty, viz. to secure the citizens against persons open to suspicion; and hence, wherever such a step is necessary,—as, for instance, in official appointments, the acceptance of the testimony of witnesses as trustworthy, the approval of guardians, etc.,—to exclude those persons, by laws expressly enacted, who had committed certain crimes or subjected themselves to certain punishments: beyond this, the State should refrain from any general manifestation of mistrust or any deprivation of honour. In this case also it would be very easy to fix on some time beyond which such objections should cease to operate. For the rest, it is needless to show that the State always retains the right of acting on the sense of honour by degrading punishments. Neither is it necessary for me to repeat (now that I am treating of the general nature of punishments) that no punishment whatever must be inflicted which would extend beyond the person of the criminal to his children or relations. Justice and equity alike proclaim against such a course; and even the cautious expression observed in the otherwise excellent Prussian code, where such a punishment occurs, is not sufficient to lessen the severity necessarily inherent in the thing itself.
Since the absolute measure of punishment does not admit of any general determination, this is, on the other hand, so much the more necessary as regards its relative degree. That is, it becomes us to ascertain what the standard should be, according to which the degree of punishment attaching to different crimes should be determined. Now, it seems to follow as a consequence of the principles we have developed, that this standard can be no other than what is suggested by the degree of disregard for others' rights manifested in the crime; and this degree (in so far as we are not referring to the application of any penal law to an individual criminal, but to the general apportionment of punishment) must be decided according to the nature of the right which is violated by the crime. It seems, indeed, to be the simplest method of determining this, to judge according to the degree of difficulty or facility of opposing the incentives to the crime in question; so that the amount of punishment should be estimated according to the number of motives which urged or deterred the criminal. But when this principle is rightly understood, we find it to be identical with the one we have just laid down. For in a well-organized State, where there is nothing in the constitution itself which is calculated to incite men to the commission of crime, there cannot properly be any other cause for criminal transgression than this very disregard for others' rights, which the impulses, inclinations, and passions prompting to crime make use of. But if this principle be otherwise interpreted; if it is supposed that severe punishments should always be opposed to crimes in proportion as circumstances of time and locality render them more frequent, or, still more (as in the case of so many police crimes), in proportion as, from their very nature, they are less impressively resisted by moral reasons, then the scale would be at once unjust and hurtful.
It would be unjust. For as it is exact to suppose the prevention of future injuries to be the end of all punishment,—at least in so far as never to allow a punishment to be inflicted with any other design,—so the necessity for the punished one to undergo the punishment arises strictly from this, that every one must submit to infringement of his own rights exactly in that proportion in which he has violated the rights of others. Not only without the political union, but also within it, does the obligation rest on this position. For to derive it from a mutual contract is not only useless, but is also attended with this difficulty,—that capital punishment, for example, which is clearly necessary at some times and in certain local circumstances, could not be justified with such a supposition, and that every criminal could escape his punishment if before undergoing it he separated himself from the social contract; as we see, for instance, in the voluntary exile of the ancient republics, which however, if my memory does not mislead me, was only admitted in cases of political and not private crimes. To him, therefore, who has inflicted the injury, no discussion as regards the efficiency of the punishment can be allowed; and, however certain that the party injured would have no new injury to apprehend from him, he must still acknowledge the justice of the punishment. But it follows also, on the other hand, from this same principle, that he may justly resist every punishment exceeding the measure of his crime, however certain it might be that this punishment alone, and no milder one whatever, would be efficacious. There is manifestly an intimate connection in human ideas between the internal feeling of right and the enjoyment of external happiness, and the former seems to man to entitle him to the latter. Whether this expectation is justified by the happiness which fate accords him, is a more doubtful question, but cannot be discussed in this place. But with respect to that enjoyment which others can arbitrarily give or take away from him, his right to it must perforce be acknowledged, while however that principle seems de facto to deny it.
But, further, this scale is hurtful even to security itself. For although it may enforce obedience to this or that particular law, it disturbs and confuses precisely that which is the mainstay of the security of the citizens in a State, viz. the feeling of morality, in causing a struggle between the treatment a criminal meets with, and his own consciousness of his guilt. The only sure and infallible means of preventing crime is to secure a due regard to the rights of others; and this object is never gained unless every one who attacks those rights is in the same measure hindered in the exercise of his own. For it is only by such a correspondency that harmony is preserved between man's internal moral development and the success of political arrangements, without which even the most artificial legislation will always fail in its end. How much the attainment of all other objects which man proposes to his endeavours, would sutler from the adoption of such a scale as that to which we referred—how much it contradicts all the principles laid down in this essay, it is needless for me to show. Again, the equality or correspondency between crime and punishment which is demanded by the reasons we have developed, cannot be absolutely determined; we cannot decide in a general way that this or that crime is just deserving of this or that particular punishment. It is only in a series of crimes differing as to degree, that the means of securing this equality can be described; and in this case the respective punishments must be arranged in corresponding gradations. When, therefore, according to what we before observed, the absolute measure of punishment (for instance, of the highest punishment) is to be determined according to the amount of evil done, and that which is required to prevent the future commission of the crime, the relative measure of the others (when the highest, or indeed any, punishment has once been fixed) must be determined according to the degree in which the respective crimes are greater or less than that which it was designed to prevent by the first punishment decided on. The most severe punishments, therefore, should be allotted to those crimes which really infringe on the rights of others, and the milder ones to transgressions of those laws which are simply designed to prevent such infringements, however important and necessary those laws may be of themselves. By such a course the idea is at the same time banished from the minds of the citizens that they are treated arbitrarily by the State, and that its conduct towards them is not grounded on proper motives—a prejudice easily engendered where severe punishments are inflicted on actions which either really have only a remote influence on security, or whose connection with the latter is less easy to understand. Among the crimes first mentioned, those must be visited with the severest punish- ment which attack directly the rights of the State itself; since he who shows no regard for the rights of the State, shows that he does not respect those of his fellow-citizens, whose security depends upon the integrity of the former. When crimes and punishments are thus generally apportioned by the law, the penal enactments so determined must be applied to single crimes. With regard to this application, the strict principles of right decide that the punishment can only affect the criminal in the degree of design or guilt implied in the action he has committed. But when it is agreed to follow out the exact principle before stated,—that in all cases the disregard manifested for the rights of others, and this only, is to be punished,—it must also be applied to single specified crimes. As regards every crime committed, therefore, the judge must endeavour to inquire carefully into the design of the criminal, and must have the legal power secured to him, of still modifying the general punishment according to the particular degree in which the criminal has disregarded the right violated.
The proceedings with regard to the criminal, moreover, are as clearly prescribed by the general principles of right, as in the way we have before adopted. That is, the judge must avail himself of all rightful means for discovering the truth, but must refrain from making use of any which lie beyond the boundary of legitimate right. He must therefore draw a careful distinction between the citizen who is only suspected, and the criminal who is actually convicted, never treating the former like the latter; and, in fine, must never deprive even the convicted criminal of the enjoyment of his rights as a man and as a citizen, since he cannot lose the former but with his life, and the latter only by a legal, judicial exclusion from the political union. The use of such means, therefore, as imply actual deceit, should be as unlawful for this purpose as the employment of torture. For although it might perhaps be urged, in excuse, that the suspected person, or at least the criminal, authorized such a course by the character of his own actions, it is still wholly unbecoming the dignity of the State, which is represented by the judge; and as to the salutary effects of an open and straightforward conduct even towards the criminals, it is not only evident of itself, but also in the experience of those States (England, for example) which enjoy in this respect a noble and high-minded legislature.
It becomes necessary to examine, in the last place (now that we are treating of criminal law), a question that has assumed a high degree of importance by the efforts of modern legislation; the question, namely, as to how far the State is entitled or obliged to prevent crimes uncommitted. There is perhaps no public project which is animated by such a philanthropic design, and the sympathy which it inspires in every man of feeling is somewhat dangerous to the impartiality of the inquiry. Nevertheless, I cannot but consider such an inquiry especially necessary, since, if we consider the infinite variety of internal impulses from which the design of committing crime may proceed, it seems to me impossible to devise any method of wholly preventing such designs, and not only this, but actually hazardous to freedom, to prevent their execution. As I have already endeavoured to define the right of the State to limit the actions of individual men, I might seem to have already furnished an answer to this question. But when I found reason to determine, in that part of my inquiry, that the State should restrict those actions whose consequences might endanger the rights of others, I understood by these, (as the reasons I advanced in support of this position may show) such consequences as flow solely and of themselves from the action, and which might only be avoided perhaps by a greater amount of caution on the part of the agent. But when we speak of the prevention of crimes, we naturally mean the limitation of such actions only as give rise to a second, and that is, the commission of crime. Hence there is already this important difference, that the mind of the agent must here co-operate by a new decision; while in the former case it might either possess no influence whatever, or merely a negative one, by refraining from activity. This alone I trust will serve to show the limits with sufficient clearness.
Now all prevention of crime must be directed to its causes. But these causes, which are so infinitely varied, might be generally expressed perhaps as the feeling, not sufficiently resisted by reason, by the disproportion between the inclinations of the agent and the means in his power for gratifying them. Although it might be very difficult to determine it in detail, there would be, in general, two distinct cases of this disproportion; firstly, that in which it arises from a real excess of the inclinations, and, secondly, when it is a consequence of a deficiency of means even for an ordinary measure of inclination. Both cases however must be accompanied by a want of strong reasoning power and of moral feeling, which fails to prevent that disproportion from break- ing out into illegal actions. Every effort of the State, then, to prevent crimes by suppressing their causes in the criminal, must, according to the difference noticed in these cases, be directed either towards changing and improving such positions of the citizens as may easily oblige them to commit crimes; or to limit such inclinations as usually lead to the transgression of the laws; or, merely, to gain greater force and efficiency for the arguments of reason and the operation of moral feeling. Lastly, too, there is another method of preventing crimes, viz. by legally diminishing the opportunities which facilitate their actual execution, or even encourage the outbreak of lawless inclinations. None of these different methods for effecting this object must be overlooked by us in the present inquiry.
The first of these, or that which is designed only to improve such circumstances as oblige the person to commit the crime, appears to be attended with by far the fewest disadvantages. It is of itself so beneficial, and calculated to enrich the means of power as well as of enjoyment; it does not immediately operate to restrictfree activity; and although it is evident that all those consequences must be acknowledged to follow such a policy which I have before represented as the effects of the State solicitude for the physical welfare of the citizen, still they only follow here in a much smaller degree, since such a solicitude is extended only to a few persons. Nevertheless they do always really follow in the train of such a policy; the very struggle between internal morality and the external circumstances is done away with, and along with it its beneficial influence on the agent's strength of character, and on the mutual benevolence among the citizens in general; and the very circumstance that such a solicitude can only reach single persons, necessitates political interference in the individual circumstances of the citizens—all of which are injuries which we could only overlook in the conviction that the security of the State would suffer without some such arrangement. But there seems to me considerable room for doubt as to the existence of such a necessity. For in a State which does not give rise to such critical circumstances by the very nature of its own constitution, but which, on the contrary, secures such a degree of freedom to its citizens as that which it is the design of these pages to recommend, it is hardly possible in general that such situations as those we describe should arise, without finding a sufficient remedy in the voluntary assistance of the citizens themselves, and thereby rendering any State interference unnecessary; the cause in such a case must be looked for in the conduct of the man himself. But in this case it is wrong for the State to interpose itself, and disturb that order of events which the natural course of things induces in the man's actions. These situations, moreover, will only occur so rarely as to require no especial State interference, so that the advantages of such solicitude would be surpassed by those disadvantages which need no more detailed exposition here, after all we have already observed.
Exactly opposite in their nature to these we have adduced in this case, are the reasons for and against the second method adopted for the prevention of crimes—I mean that which is designed to operate on men's very passions and inclinations. For, on the one hand, the necessity appears greater in this case, as, when liberty is loosened from its bonds, enjoyment becomes more wantonly extravagant, and desires range more unrestrainedly; and these are tendencies which the regard for others' rights, although it ever increases with the sense of one's own freedom, might not perhaps be sufficient to counteract. But, on the other hand, the disadvantage of such a policy increases in the very measure in which the moral nature feels every fetter more deeply galling than the physical. The reasons according to which it appears that any political effort directed to the moral improvement of the citizens is neither necessary nor advisable, I have already endeavoured to unfold. Those very reasons apply in this case in their full extent, and only with this difference, that the State does not here aim at reforming morality in general, but only at exercising an influence on the conduct of particular individuals which seems to endanger the authority of the law. But by this very difference the sum of the disadvantages increases. For, from the very reason that this effort is not general in its operation, it must come short of its proposed end, so that not even the partial good which it realizes is sufficent to reconcile us to the injury which it occasions; and further, it presupposes not only the interference of the State with regard to the citizen's private actions, but also the power of influencing them,—a power which is still more questionable when we consider those to whom it may be entrusted. That is, there must be a superintending power entrusted to persons either specially appointed, or to the regular State functionaries who are already in office, over the conduct and the situations arising out of it, either of all the citizens, or of those who come under their immediate inspection. But in this way a new kind of domination is introduced, which is perhaps more oppressive than any other could be; and room is afforded for the indulgence of impertinent curiosity, bigoted intolerance, and even of hypocrisy and dissimulation. I hope I may not be accused of having endeavoured to picture abuses alone in this case. The abuses are here inseparably connected with the thing itself; and I venture to affirm that even though the laws should be the best and most philanthropic—should they allow to the superintending official nothing beyond the information to be gained through lawful channels, and the employment of advice and exhortation wholly free from coercion—and should the most perfect obedience be accorded to these laws, still such an institution would be at once useless and dangerous. Every citizen must be in a position to act without hindrance and just as he pleases, so long as he does not transgress the law; every one must have the right to maintain, in reply to every other, and even against all probability in so far as this can be judged of by another, "However closely I approach the danger of transgressing the law, yet will I not succumb." If he is deprived of this liberty, then is his right violated, and the cultivation of his faculties—the development of his individuality suffers. For the forms of morality and observance of law are infinitely different and varying; and if another person decides that such or such a course of conduct must lead to unlawful actions, he follows his own view, which, however just it may be, is still only the view of one man. But even supposing he were not mistaken in his judgment,—that the result even were such as to confirm its correctness, and that the other, yielding to coercion or following advice, wdthout internal conviction, should not for this once transgress the law which otherwise he had transgressed,—still it would be better for the transgressor to feel for once the weight of punishment, and to gain the pure instruction of experience, than to escape, it is true, this one evil, but not to gain any greater clearness of ideas, or any active exercise of moral feeling; and it would be still better that one more transgression of the law should disturb tranquillity, and that the consequent punishment should serve as an instruction and warning, than that the very thing on which the tranquillity and security of the citizens depend,—the regard for others' rights,—be neither really greater in itself, nor now in this case be increased and promoted. Finally, moreover, such an institution cannot have the effect ascribed to it. As with all means which do not operate at once on the inner sources from which actions flow, it will only give another direction to the desires which run counter to the laws, and produce a dissimulation just doubly injurious. I have hitherto confined myself to the supposition that the persons to whom such a supervision as that of which we speak is entrusted do not produce conviction, but only operate through the medium of external arguments. It may seem that I am not authorized to proceed on such a supposition. But that it is well to exercise an influence on one's fellow-citizens and their morality through the medium of a living example and convincing persuasion, is too manifest to be expressly repeated. In any case, therefore, where such an institution produces these results, the foregoing reasoning cannot apply. Only it seems to me that to prescribe anything by law with a view to these ends, is not only unserviceable as a means, but even calculated to defeat the design in which it originates. For, firstly, it does not come within the proper province of the law to recommend virtues, but only to prescribe duties which can be enforced; and it will frequently happen that virtue will lose by such an attempt, since man only enjoys a course of virtuous action when it proceeds from his own free will. And, secondly, every mere request contained in a law, and every admonition or advice which a superior gives in virtue of it, is a positive command, which theoretically, it is true, men are not forced observe, but which in reality they always do obey. Lastly, we must take into account how many circumstances may oblige, and how many motives may incite, men to follow such advice, even wholly contrary to their convictions. Of this kind is usually the influence which the State exercises over those destined for the transaction of its affairs, and through whom it endeavours, at the same time, to operate on the other citizens. Since such persons are leagued with the State by special contracts, it is certain that it can exercise greater rights over them than over the other citizens. But if it faithfully adheres to the principles of the highest legal freedom, it will not seek to obtain more from them than the fulfilment of civic duties in general, and of those especial duties which are required by their especial offices. For it evidently exercises too vast a positive influence on the citizens in general when it tries to impose on these, in virtue of their special connection with it, anything which it has no right to impose directly on the other citizens. Without taking any positive steps in that direction, it is only too much anticipated by men's passions; and the task of preventing the evils which arise of themselves from these sources, will be amply sufficient to engross its zeal and vigilance.
A nearer motive for preventing crimes by the suppression of their exciting causes in the character is furnished by considerations of those who, by their actual transgressions of the law, awaken a reasonable anxiety with regard to their future conduct. It is with this view that the most enlightened modern legislators have endeavoured to make punishments at the same time reformatory in their operation. Now it is certain, not only that everything should be removed from the punishment of criminals at all calculated to do harm to their morality, but also that every means of correcting tbeir ideas and improving their feelings must be left open to them, so long as it does not counteract the object designed by the punishment. But instruction is not to be thrust even on the criminal; and while, by the very fact of its being enforced, it loses its usefulness and efficiency, such enforcement is also contrary to the rights of the criminal, who never can be compelled to anything save suffering the legal punishment.
There is still, however, a perfectly special case, where the accused party has too many reasons against him not to lead to a strong suspicion of his guilt, but still not enough to justify his being condemned (absolutio ab instantia). To grant to him, under such circumstances, the full freedom enjoyed by citizens of good repute, is hardly compatible with the solicitude for security; and a constant surveillance of his future conduct hence becomes evidently necessary. The very reasons, however, which render every positive effort on the part of the State so questionable, and which recommend us in general to substitute the efforts of single citizens for its activity wherever this is possible, incline us in this case also to prefer the surveillance voluntarily practised by the citizens to the supervision of the State; and hence it might be better to allow suspected persons of this class to give security rather than to deliver them up to the surveillance of Go- vernment, which should only be exercised in cases where securities could not be obtained. We find examples of such security given (not in this case, it is true, but in similar ones) in the legislation of England.
The last method of preventing crimes is that which, without designing to operate on their causes in the citizen's character, endeavours only to prevent the actual commission of them. This is the least immediately hurtful to freedom, as it leads least of all to the exercise of any positive influence. However, this method also admits of greater or less extension of its sphere and operation. For the State may content itself with exercising the most watchful vigilance on every unlawful project, and defeating it before it has been put into execution; or, advancing further, it may prohibit actions which are harmless in themselves, but which tempt to the commission of crime, or afford opportunities for resolving upon criminal actions. This latter policy, again, tends to encroach on the liberty of the citizens; manifests a distrust on the part of the State which not only operates hurtfully on the character of the citizens, but goes to defeat the very end in view; and is disapproved by the very reasons which seemed to me to argue against the methods of preventing crime before-mentioned. All that the State may do, without frustrating its own end, and without encroaching on the freedom of its citizens, is, therefore, restricted to the former course,—that is, the strictest surveillance of every transgression of the law, either already committed or only resolved on; and as this cannot properly be called preventing the causes of crime, I think I may safely assert that this prevention of criminal actions is wholly foreign to the State's proper sphere of activity. But only the more assiduously must it endeavour to provide that no crime committed shall remain undiscovered, and that no offence discovered shall escape unpunished, or even punished more leniently than the law strictly demands. For the conviction in the minds of the citizens,—a conviction strengthened by unvarying experience,—that it is impossible for them to infringe on the rights of others without suffering a proportionate loss of their own, seems to me at once the only bulwark of internal security, and the only infallible means of creating an inviolable regard for the rights of others. This is, at the same time, the only way to act worthily on man's character, since we must not lead or compel him to certain actions, but only bring him to them by a consideration of the consequences, which, according to the nature of things, must flow inevitably from his conduct. Hence, instead of all the more artificial and complicated means for averting crime, I would never propose anything but good and well-matured laws; punishments adapted, as to their absolute measure, to local circumstances, and, as to their relative degree, to the immorality of the crime; as minute a search as possible into all actual transgressions of law; and, lastly, the certainty of the punishment determined by the judge, without any possibility of lightening its severity. Should these means, so simple in their operation, be somewhat slow in their effects, as I will not deny they may be, they are, on the other hand, sure and infallible; they do not hurtfully affect the freedom of the citizen, and they exercise a salutary influence upon his character. I need not dwell longer on this subject, to point out the consequences of the positions here laid down, as, for instance (a truth so often observed), that the right of the sovereign to grant reprieve or mitigation of the punishment cannot at all be allowed. Such consequences are easily derived from the positions themselves. The detail of arrangements to be adopted by the State for the discovery of crimes actually committed, or for the prevention of those which are only resolved upon, depends almost entirely on tie individual circumstances of particular situations. TTe may only generally observe that neither in this case must the political power transgress its rights, and hence that it must not do anything contrary to the freedom and domestic security of the citizens. But it may appoint proper officers to be on the watch in public places where misdemeanors are most commonly committed; establish public prosecutors, who may, in virtue of their office, proceed against suspected persons; and, lastly, make it legally binding on all the citizens to lend their assistance to the task, by denouncing not only crimes which are contemplated but not yet committed, but those which are already perpetrated, and the criminal agents concerned in them. Only, in order not to exercise a hurtful influence on the character of the citizens, it must content itself with demanding the assistance last mentioned as the performance of a duty, and must not instigate them by rewards and benefits; and in those cases where the fulfilment of such a duty would be impossible without breaking the nearest ties, it must wholly refrain from demanding it.
Lastly, before concluding this subject, I ought to observe that all criminal laws, as well those which fix the punishments as those which arrange the forms of proceeding, must be fully and clearly made known to all the citizens without distinction. I am well aware that a contrary practice has been repeatedly recommended, and the reason assigned for it is that no option should be afforded to the citizen of buying, as it were, the advantage gained by the unlawful action, with the evil of the punishment voluntarily undergone. But (even though we should for once allow the possibility of concealment) however immoral such a balancing of advantages would be in the man who would adopt it, still the State must not forbid it, nor indeed can any man forbid it to another. It has, I trust, been sufficiently shown, in what was said above, that no man is justified in injuring another, under the name of punishment, any further than he has himself suffered by the crime. If there were no legal determination of punishment, the criminal ought to expect about the same extent of injury as he would think equal to his crime; and as this estimate would vary too much according to the variety of men's characters, it is very natural that a fixed measure should be determined by law, and hence that there should be a contract, not indeed to confirm the obligation to suffer punishment, but to prevent the arbitrary trespass of all limits in inflicting it. Still more unjust does such concealment of the law become as regards the process of investigating and searching out crimes. In this case it could evidently serve no other purpose than that of exciting apprehension of such means as the State even does not think fit to employ; and never should the State seek to act through fears, which can depend on nothing else than the ignorance of the citizens as regards their rights, or distrust of its respect for these.
I now proceed to derive, from the reasons here advanced, the following ultimate principles of every general system of criminal legislation:—
1. One of the chief means for preserving security is the punishment of transgressions of the laws. The State must inflict punishment on every action which infringes on the rights of the citizens, and (in so far as its legislation is guided by this principle alone) every action in which the transgression of one of its laws is implied.
2. The most severe punishment must be no other than that which is the mildest possible, according to particular circumstances of time and place. From this all other punishments must be determined, in proportion to the disregard manifested for the rights of others in the crimes committed. Hence, the severest punishment must be reserved for him who has violated the most important right of the State itself; one less severe must be inflicted on him who has only violated an equally important right of an individual citizen; and, lastly, one still milder must be applied to him who has only transgressed a law designed to prevent such injuries.
3. Criminal laws are to be applied to him only who has transgressed them intentionally or culpably, and only in the degree in which the criminal thereby showed a disregard for the rights of others.
4. In the inquiry into crimes committed, the State may indeed employ every means consistent with the end, but none which would treat the citizen who is only suspected as already a criminal, neither any which would violate the rights of man and citizen (which the State must respect even in the criminal), or which would render the State guilty of an immoral action.
5. As regards especial arrangements for preventing crimes not yet committed, the State must only adopt them in so far as they avert the immediate perpetration. And all others, whether they are designed to counteract the causes of crime, or to prevent actions, harmless in themselves, but often leading to criminal offences, are wholly beyond the State's sphere of action. If there seems to be a contradiction between this principle and that laid down with regard to the actions of individual men, it must not be forgotten that the previous question was of such actions as in their immediate consequences were likely to infringe on the rights of others, and that here we are considering those from which, in order to produce this effect, a second action must arise. The concealment of pregnancy—to illustrate what I mean by an example—ought not to be forbidden in order to prevent infanticide (unless we were to regard it as already an indication of the mother's intention), but as an action which, of itself, and without any such intention, might be dangerous to the life of the infant.
- Thl. 2. tit. 20. § 95.
- According to the law of England, a man may not be tried twice for the same crime; and the plea of autrefois acquit is a bar to any indictment. But it has been the practice in some count lies to suspend decision, as it were, where the guilt of the criminal is not sufficiently proved, and so leave it open to the prosecutors to renew the trial whenever more conclusive evidence is found,