I. I do not know, my Son, whether to congratulate or condole with
you on the information you give me, of his Majesty having honoured
you with a Judge’s robe. I contemplate you as placed in a state of
slavery, which, although it is an honourable one, must always remain
and continue a slavery. Already you are neither mine nor your own, but
belong to the public at large. The obligations of this charge should
not only emancipate you from your father, but detach you from yourself
also. There is an end of your considering your convenience, your
health, or your ease; and you have only now to attend to the duties
and discharge of your conscience; you should look upon your own good
as a foreign concern, and regard that of the public as your own. You
are already divested of neighbours, friends, or kindred; you have no
country, and must have no regard for the tyes of flesh and blood. Do
you think I mean to say, you should cease to be a man? No, certainly;
but I would have it understood, that the affections of the man should
live in such a state of separation from the duties of the Judge, that
there should not be the slightest commerce or correspondence between
them.
II. I repeat again, that I am at a loss whether to condole with or
congratulate you on the event. I view your soul as exposed to the
continual hazard of being lost; and I was on the point of saying, the
office of a Judge affords proximate occasions for sinning through the
course of a man’s life. You may say this is a hard proposition; and
I acknowledge it is; but what other inference can be drawn from the
terrible sentence of St. John Chrysostom, which is in the following
words: _It appears to me impossible that any of those who govern should
be saved._ And what other thing could the religious Pontiff, Pius the
Vth, mean, when he said, that while he was a private Religious, he had
great hopes of being saved, though when they made him a Cardinal he
began to fear, but when they made him a Pope he almost despaired of
salvation? If this is not a virtual asseveration, that the occupation
of a ruler furnishes a continual and proximate occasion for sinning, I
do not understand the expression. But it is true, that although this
should be the case, the crime would be obviated, because the necessity
of the public makes the exercise of such a function inevitable; but
then the crime would only be obviated in such subjects, who feel in
themselves, dispositions to perform the duties of such an office with
rectitude and propriety; as for the others, I will not exculpate them.
I do not understand that text of the Ecclesiastes as an advice or
caution, but as a precept and injunction, which says, Don’t solicit to
be made a judge, unless you find yourself possessed with that virtue
and fortitude, which is necessary to extirpate evil deeds.
III. He who doubts whether he is endued with a sufficient share of
knowledge, or a necessary portion of health and constitution, to
undertake so weighty a charge; he who does not find himself possessed
of a robust heart, which is invincible to, and proof against the
promises and threats of the great and powerful; he who feels himself
enamoured with the beauty of gold; he who knows his sensibility
liable to be wrought upon by the intreaties of domestics, friends, or
relations, cannot, in my opinion, enter upon the office of a magistrate
with a good conscience. I do not, although it is indispensably
necessary, comprehend in this catalogue of requisites the virtue of
prudence, because every one fancies he possesses it; but, if a man
mistakes in this particular, I judge his error to be incurable.
IV. He who is cloathed with a robe, ought to keep his soul well
fortified at all points, because in a variety of occurrences, there
is no passion that may not be inimical to justice; and the suitors
are very solicitous in examining where the defence is weak; even
lawful affections are sometimes hostile to her. What is more right or
proper than a man’s tenderness for his wife? But how often has a man’s
affection for his wife, been the cause of warping the wand of justice!
V. I don’t mean to inculcate, that a judge should be fierce,
unfeeling, and harsh; but that he should be firm, spirited, and a man
of integrity. It is rare, but not impossible, for a man to possess
a soul of wax for the duties of private life, and a mind of brass
for the administration of public ones; although the heart may be
susceptible of its tendernesses, the sacred castle of justice should
be inaccessible to such feelings. It is said, that friendships may be
permitted to approach even to the altar; but they should not be so much
as suffered to enter the doors of the temple of Astrea.
VI. I contemplate you, my Son, as having some advantageous dispositions
for exercising this office; you are disinterested, an important quality
in a judge; but that does not quiet my fears; for how can I be certain
you will continue so in future? Disinterestedness, like beauty, is
an endowment and ornament of youth, and rarely accompanies life in
old age. I have read but of two women who preserved their beauty
till seventy; the one was Diana of Poitiers, Dutchess of Valentine,
who lived in the reign of Henry the IId. King of France; the other
was Aspasia of Miletus, concubine of Cyrus King of Persia. I do not
know whether you can reckon many more men, who left totally to their
natural dispositions, without the invention or assistance of other
helps, preserved their contempt for gold till they arrived at that age.
The soul fades with the body, and the narrowness and contractions of
avarice are its wrinkles.
VII. The danger of people in exalted stations in the law, falling
into this vice, is greater, because they are exposed to more frequent
temptations. Elizabeth of England used to say, that the office of a
Judge at his first elevation, seemed to fit on him like new cloaths,
which appear tight and strait at the beginning, but after a little
time they stretch and become easy and familiar. The same may be said
of Judges in all other kingdoms. Many, who at first scruple to accept
an apple, in the course of a few years, are capable of swallowing
the whole orchard of the Hesperides; and you know the apples of that
orchard were golden ones. The same thing happens to them that happens
to rivulets, which rarely fall into, and are swallowed by the sea, with
the scanty stock they contained in their first passages.
VIII. Let no caution, my Son, appear too great, to guard you against
the treacherous attacks of avarice; this serpent, whose bulk in time
increases without limits, is at first no bigger than a hair; I mean to
say, they commonly begin with presents of such trifling value, that
the refusing to accept them would be blamed by the world as affected
nicety. But what follows? Why, that when they are once admitted, by
the exertion of their power in the first entrances of the door of the
will, they proceed to widen it by little and little, so that every
day it becomes capable of receiving more and more. God defend us from
a magistrate’s setting about to enrich himself! because in such a
case, he may be compared to the element of water, whose stock bears
proportion to the contribution it receives; while it is a brook, it
only receives fountains; afterwards becoming a river, it receives
brooks; and when it arrives at being a sea, it receives rivers.
IX. It is not sufficient that you keep your own hands clean; but it is
also necessary that you examine those of your domestics. The integrity
of a magistrate requires, that he should adopt the practice of an
active and vigilant matron, who not only takes care of the cleanliness
of her own person, but looks also to the cleanliness of the rest of her
household. This is not only an obligation you owe to your conscience,
but is likewise a matter that concerns your reputation, because it
is generally understood, that the inferior part of the family is a
subterraneous conduit-pipe, through which, supplies are conveyed to
the hand of the master; but in truth it happens in point of regale or
refreshment, as it happened to the fountain of Arethusa, which although
it was received by a cavern in Greece, the place it fertilized was the
land of Sicily. We read in Daniel, that the ministers of the temple
are the dainties which were presented to the idol; in the house of
a magistrate, the idol eats the dainties which are presented to his
ministers.
X. The apprehensions I am under, that you may one day be betrayed into
this corruption, move me at present to give you an excellent caution,
as a preservative against the temptation of gifts, which is, that you
should consider any one who attempts to gain your favour in this way,
as a person who offers a direct affront to your honour; for it is
clear, that by such an action, he gives it to be understood, that you
hold in your hands the scales of venal justice. There are two sorts of
people in the world, who fall into the dangerous error, of mistaking
injuries for courtesies; women who receive presents from gallants, and
ministers of justice who permit the reception of them from suitors: for
with respect to the givers, every present is meant as a subornation;
otherwise, why is not their liberality manifested to other people as
well as to those from whom they entertain expectations? It can only
be, because they consider what they give as an offering made to their
interest; and that, to which they affect giving the appearance of
a courtesy, is at bottom nothing better than a bribe. He who makes
presents to a lady, or a minister of justice, attempts their corruption
by the act, and in his imagination supposes he has effected it. You
ought, therefore, my Son, to consider every one who attempts to gain
your favour by such means, as an enemy to your conscience, and as a
person dangerous to, and one who would injure your honour; and you
should look upon him as a man, more deserving of your contempt and
indignation, than your courtesy.
XI. I have given the name of preservative to the foregoing reflection,
because it is rather calculated to prevent the infection from getting
footing in those, who are sound and in health, than to cure the
disease, after it has once taken root. He who has contracted a habit of
gorging himself with presents, is callous to the reproach of having put
his decisions to sale.
XII. I am inclined to think, Spain is more free from this pestilence
than other kingdoms; at least in ministers of your class, this meanness
has rarely been observed. It has ever been remarked, that with us,
the higher people have been raised on the seats of justice, they have
seemed the further removed from the baseness of avarice.
XIII. Would to God, our tribunals were as deaf to recommendations,
as they are untainted with bribes! It is on this side, their credit
is most tarnished in the public opinion. There is scarce a sentence
given in a civil controversy, which the malice of grumblers, and the
voice of neutral people, does not impute to have been the effect of
some powerful recommendation. The presumption of the influence, which
the protection of men of weight has with the Judges, is so prevalent,
that many who have been despoiled by an unfair decision, and who are
persuaded of the justness of their cause, are afraid to appeal, if they
know their opponent has great connections.
XIV. We should hope, the world is greatly mistaken in this matter. The
ministers of justice, as far as they are able, and they most commonly
can do this, must discharge and comply with the duties of their
function in judicial phrases, and according to the words of the law;
and although there may have been positive promises made, when they
come to the sentence, they must consult and conform to the books of
jurisprudence, and not the letters of recommendation. God defend us,
however, from the serious misfortune of the protector of either party,
having, or ever being able to have, influence in the seats of justice!
For then we may have reason to apprehend, that to the shame of the
law, the motive of the conduct of the partial Judge may be betrayed
by his countenance, and that the dread of such motive being known,
may be the torturer who presses out and exposes the secret, or else,
that the thing may be unravelled by conjectures, or proved by some
transactions in the business; and these are the sort of cases, which,
after many years study, make people understand the law in a sense they
never understood it before, and which, in the same instant, increases
and lessens their esteem for the same authors, and causes the breath
of favour to incline the balance, with which they weigh probabilities,
to the side where there is the least weight in the scale. I remember
that great lawyer, Alexander of the family of the Alexanders, in his
treatise called _Dias Geniales_, says of himself, that he abandoned the
profession of an advocate in disgust, from having observed in his own
practice, that neither the wisdom or abilities of a counsellor, nor the
goodness of a cause, were of any avail in courts, when the opposite
parties were espoused by people of power.
XV. But excepting these instances, which have weight with those only,
who had rather rise to the highest seats on the bench than ascend to
heaven, other modes of favour in courts are trifling and of little use
or consequence; but to speak the truth, we ourselves give occasion
to their being thought useful and of consequence. If when a person
of authority intercedes on behalf of a suitor, we give him hopes and
encouragement; or if our answers to such applications, are in terms
which exceed what is necessary in a judicial reply; and if afterwards,
when that person obtains a sentence in his favour, we seem desirous, or
behave so as to make it be thought, our suffrage was a compliment to
the great man who interested himself in the suitor’s behalf, in order
that he should think he was obliged to us; we are the authors of this
error in mankind, and the cause of the injury, which, in consequence of
it, our credit suffers with the world.
XVI. This notion of the utility of recommendations, is an impediment
to our business, as well as injurious to our reputation; for it is the
occasion of our being interrupted with visits, and puts us under the
necessity of answering letters of intercession, by which means we waste
a great part of that time, which we ought to employ in study. If they
knew they were taking all this pains to no purpose, they would not
embarrass us with their applications, nor rob us of our time.
XVII. How then are we to act? That is easily determined; speak plain,
and undeceive all the world. Let them know, that the sentence depends
upon, and is ruled by the law, and not by solicitations and private
friendships; that we can serve no man at the expence of justice and
our conscience; and that that which they call being favourable, the
pretence with which they cover all their petitions, upon a practical
examination of things, is a chimera; for a Judge can never shew favour,
or at most the cases in which he can do it are metaphysical; even
in doubtful and obscure cases, and in those where the probabilities
are equal, the laws prescribe rules of equity, which we are strictly
and rigorously bound to follow. Oh! but some cases are left to the
discretion of the judge! It is true, but they are not for this reason
to be determined by his absolute will. Prudential maxims, and rules of
equity, point out the road we should pursue; and it is not lawful for
us to follow any other course, either for the sake of obliging great
men or friends. When it is said, this or that is left to the will
and pleasure of the Judge, it should not be understood to mean his
absolute uncontrolable will, but to imply, that he is to be guided in
his decision by the dictates of reason, and the principles of law. This
definition, is conformable to the sense of the Latin verb _arbitror_,
which signifies an act of the understanding, and not of the will.
XVIII. I am well aware, that objections may be made to this frank mode
of acting: the first is, that we may be called blunt and ill-bred;
but, besides that the reflection would be unjust, it would last no
longer, than till it was generally known, we had resolved to adopt this
method of acting, and till it was become common and familiar among
us. While there shall be but one or two judicial ministers who act in
this open ingenuous manner, their candid behaviour may pass among the
ignorant for want of breeding and courtesy; but if all the rest were to
do the same, even the ignorant would become sensible, that what they
had called want of breeding, was integrity; and they would also be
convinced, that this is beneficial to them, and a great saving both of
money and trouble, which are both wasted in running after, and seeking
for friends and patrons, whose assistance and protection is useless to
them.
XIX. The second objection is, that judicial ministers would lose a
great part of the respect and homage which is now paid them, it being
certain, that civilities of this sort, are not so much the result of
the reverence due to the character of a Judge, as the effect of the
imagined dependance on his favour. It is established upon the credit
of good authors, that Epicurus did not, as it is vulgarly thought,
deny the existence of the deities, but only their influence or power
to do good or harm; but this was sufficient, to cause the tenet to be
held as atheistical in practice; for he who denies the power of the
Gods, denies them adoration also. Men do not sow obsequies, but with
the expectation of reaping a harvest of benefits, and dependance is the
only stimulus or first mover to worship; therefore, when men come to
consider the tribunal as the mere organ of the law, where every thing
depends upon the intention of the legislature, and nothing upon the
inclination of the Judge, the applications to the ministers of justice,
would be very few and very slight.
XX. This objection would have great weight with those Judges, who
desire to be regarded and addressed as deities: but do you, my Son,
contemplate yourself as placed on the bench, and not on the altar; and
remember, that you are not an idol destined to receive worship and
offerings, but an oracle ordained to articulate truths. This is the
manner in which you should explain yourself, and undeceive the world;
assure the great of your respect, and your friends of your esteem; but
intimate both to one and the other, that neither esteem nor respect can
gain admittance into the cabinet of justice, because the fear of God,
who is the door-keeper of the conscience, requires that they should
remain in the antichamber.
XXI. But there may still rest with Judges a discretionary power of
shewing courtesies, if not in points that concern the substantial parts
of the cause, in the mode of administering justice; I mean, if not in
the essence of the sentence, in the brevity of dispatch. This is an
error, which I have observed some of our Judges to have fallen into;
and I call it an error, because with regard to myself, I have no doubt
of its being one. It is an obligation upon us, to give the quickest
dispatch possible to causes: and we do not shew favour to him, whose
business is done with all possible speed; but to him we do not dispatch
with the same expedition, we do injustice. The preference given to
people in priority of dispatch, is partiality; and the minister who
is the author of it, ought to make good the damages occasioned by the
delay to him who was next in turn; in this matter, attention should be
had to the nature of the cause, to the time the suit was commenced, and
to the injury that would attend procrastination in the decision of it.
XXII. With regard to this last circumstance, when there are not other
reasons to forbid it, the poor should be dispatched in preference to
the rich; and those who come from distant provinces, before those who
live in the neighbourhood. St. Jerome, in his comment on a passage
of the Proverbs, says, that formerly courts of justice were placed
at the gates of cities; which the Saint imagines to have been done,
with a view of preventing the attention of strangers who come upon law
business, and especially that of the rustics, from being taken up and
confounded by the multitude of strange objects which present themselves
to their sight, and by the bustle and hurry of the city; from hence it
may be inferred, that the dispatch was very quick, and that it was not
necessary for them to take a lodging in town; but things are greatly
altered now-a-days, and strangers who come from a great distance to
prosecute their causes, are detained so long, that they in a manner
become neighbours and inhabitants of the city. Nothing is so pernicious
as the amazing delays of judicial proceedings; as formerly, they saw
the tribunals at the gates of great towns, at present, we see intire
towns built round the gates of the tribunals, because the slowness of
dispatch increases the bulk of the causes in the office, and the number
of suitors in and about the office-porch.
XXIII. I reflect with horror on the mischiefs which these delays
occasion; for in consequence of the expence they create, it frequently
happens that both the suitors are ruined, the vanquished is stripped
and laid prostrate, and the conqueror has spent his all. There are
litigations, which last as long as the four elements in man, that is
to say, for the whole course of his life; and the result of them is
the same, the ruin of the whole. O terminations of law! you appear
like the boundaries of the world in the opinion of Descartes, that is,
indefinite.
XXIV. Even where there is nothing to wait for, and there is no occasion
of delay, the cause is sometimes suspended for months together. My Son,
you are not ignorant of the rule of law laid down by Sextus Pomponius,
which says, in the discharge of all our obligations, where there is
no particular day prescribed or assigned for dispatching a business,
we should make use of the present day. The practice of all tribunals
should be conformable to this rule, and when things are prepared for
trial, the decision should not be delayed a day, and the Judges should
direct, that the preparations are made with all the expedition possible.
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.
XLIX. The honour of the Judges also requires this should be done,
because the vulgar, when they see mulcts laid on with a heavy hand,
and do not perceive the money arising from them applied to purposes
of public benefit, such as the building of bridges, the repairing
of highways, the making of aqueducts, and in the aid of hospitals
for the poor, &c. they easily persuade themselves, that the Judges
are interested in the imposition of fines; and although Judges may
sometimes be indiscreet and rash, it is necessary to rescue them from
those gross imputations, when it can conveniently be done.
L. When delinquents have no families, and the consequences of depriving
them of their money are only felt by themselves, no punishments appear
to me more rational and proper than pecuniary ones, and especially when
the nature of the offence does not demand a more severe chastisement.
In the first place, it is not a sanguinary punishment, and is more
consonant to the feelings of compassion, than one that is tinged with
blood, both with respect to him who pronounces the sentence, and him
to whom it is applied. Secondly, despoiling an evil-disposed man of
his money, is disarming him of vice, as it deprives him of the weapons
with which he was enabled to do mischief. Thirdly, if the money is
expended for the good of the public, the community will derive a double
advantage from this mode of punishment, as somewhat of temporal benefit
will be added by it, to a well-adapted and exemplary application of
justice.
LI. I now, my Son, have told you my sentiments on all that has occurred
to me as most essential in judicial administration. If, upon seeing
me so scrupulously tenacious on the side of justice, it shall appear
to you that I mean to erase clemency out of the catalogue of virtues,
you are mistaken. I know the excellence of this virtue, and even
lament, that in our ministry there is but small scope for exercising
it. I venerate this divine quality, which, on account of its elevated
and sublime nature, I contemplate, as superior to the sphere of our
jurisdiction. I call it divine, by reason of its active power to remit
penalties decreed by the laws, which is an authority or prerogative
almost peculiarly belonging, and proper to God alone. He, as Supreme
Master, can pardon all sorts of crimes; Kings as next to him in
sovereignty, can pardon some; but the hands of their inferior ministers
are tied in all cases; for he who is subject to the laws, can never be
vested with a power to arbitrate and dispense forgivenesses.
LII. It is true, that where the law is obscure, we have authority to
interpret and construe it in a benign sense; but in this construction,
we should not lose sight of the exigence of the public safety, nor
the dictates of natural equity: and acting in this manner, is not
clemency but justice. We may also in virtue of the principle which is
called Epeikeyan, that allows of a wise and moderate interpretation of
the law, lessen, or even in many cases omit, the penalties which the
law decrees. This also is not lenity but justice, because upon such
occasions, we are rather obliged to conform to the intention of the
legislature, than the letter of the law; and such cases frequently
occur in small offences, because, upon an examination of the nature of
these things, it often appears to the eye of Prudence, that greater
inconveniences would attend the punishing, than the tolerating
them. Following the letter of the penal law, without admitting any
exceptions, even in those cases where the legislature could not intend,
nor prudence suppose it was meant to bind, is what is called justice
in extreme, or _summum jus_, which with great reason is termed extreme
injustice; therefore, acting contrary to the letter of the law in these
instances, is likewise not clemency, but justice. Aristotle, who very
well understood the nature of things appertaining to Ethics, judges the
Epiekeyan, to be a principle, or part of justice. From all that has
been said, it may be inferred, that requesting favour or compassion of
a Judge, or supposing him capable of shewing any in the discharge of
his duty, is an absurdity, and calling things by improper names; for
if he acts according to the law, reasonably and rightly understood, he
does justice; if contrary to it, he does injustice. In what are called
_casos omissos_, and when the law is obscure, there are general rules
for interpreting it and supplying the defects, which interpretations
have the force of laws; so that there is no middle path between justice
and injustice, for a Judge to walk in; because there are no means, by
which he can act conformable to law, and contrary to law. God keep you.