PROSECUTIONS AND PRESCRIPTIONS.
As soon as the proofs of a crime and its reality are fully certified,
the criminal must be allowed time and opportunity for his defence;
but the time allowed must be so short as not to interfere with the
speediness of his punishment, which, as we have seen, is one of the
principal restraints from crime. A false philanthropy seems opposed to
this shortness of time; but all doubt will vanish, on reflection that the
more defective any system of law is, the greater are the dangers to which
innocence is exposed.
But the laws should fix a certain space of time both for the defence of
the accused and for the discovery of proofs against him. It would place
the judge in the position of a legislator were it his duty to fix the
time necessary for the latter. In the same way those atrocious crimes,
whose memory tarries long in men’s minds, deserve, when once proved, no
prescription in favour of a criminal who has fled from his country; but
lesser and obscure crimes should be allowed a certain prescription, which
may remove a man’s uncertainty concerning his fate, because the obscurity
in which for a long time his crimes have been involved deducts from the
bad example of his impunity, and the possibility of reform meantime
remains to him. It is enough to indicate these principles, because I
cannot fix a precise limit of time, except for a given system of laws and
in given social circumstances. I will only add that, the advantage of
moderate penalties in a nation being proved, the laws which shorten or
lengthen, according to the gravity of crimes, the term of prescription
or of proofs, thus making of prison itself or of voluntary exile a part
of the punishment, will supply an easy classification of a few mild
punishments for a very large number of crimes.
But these periods of time will not be lengthened in exact proportion to
the atrocity of crimes, since the probability of a crime is in inverse
ratio to its atrocity. It will, then, be necessary to shorten the period
for inquiry and to increase that of prescription; which may appear to
contradict what I said before, namely, that it is possible to inflict
equal penalties on unequal crimes, by counting as a penalty that period
of imprisonment or of prescription which precedes the verdict. To explain
to the reader my idea: I distinguish two kinds of crimes—the first,
atrocious crimes, beginning with homicide and including all the excessive
forms of wickedness; the second comprising less considerable crimes. This
distinction is founded in human nature. Personal security is a natural
right, the security of property a social one. The number of motives
which impel men to violate their natural affections is far smaller than
those which impel them, by their natural longing for happiness, to
violate a right which they do not find written in their hearts but only
in the conventions of society. The very great difference between the
probability of these two kinds of crime respectively makes it necessary
that they should be ruled by different principles. In cases of the more
atrocious crimes, because they are more uncommon, the time for inquiry
ought to be so much the less as the probability of the innocence of the
accused is greater; and the time of prescription ought to be longer,
as on an ultimate definite sentence of guilt or innocence depends the
destruction of the hope of impunity, the harm of which is proportioned
to the atrocity of the crime. But in cases of lesser criminality, where
the presumption in favour of a man’s innocence is less, the time for
inquiry should be longer; and as the harm of impunity is less, the
time of prescription should be shorter. But such a division of crimes
ought, indeed, not to be admitted, if the danger of impunity decreased
exactly in proportion to the greater probability of the crime. One should
remember that an accused man, whose guilt or innocence is uncertain, may,
though acquitted for lack of proofs, be subjected for the same crime to
a fresh imprisonment and inquiry, in the event of fresh legal proofs
rising up against him, so long as the time of prescription accorded by
the laws has not been past. Such at least is the compromise that I think
best fitted to preserve both the liberty and the security of the subject,
it being only too easy so to favour the one at the expense of the other,
that these two blessings, the inalienable and equal patrimony of every
citizen, are left unprotected and undefended, the one from declared or
veiled despotism, the other from the turbulence of civil anarchy.
There are some crimes which are at the same time of common occurrence
and of difficult proof. In them the difficulty of proof is equivalent
to a probability of innocence; and the harm of their impunity being so
much the less to be considered as their frequency depends on principles
other than the risk of punishment, the time for inquiry and the period
of prescription ought both to be proportionately less. Yet cases of
adultery and pederasty, both of difficult proof, are precisely those
in which, according to received principles, tyrannical presumptions
of _quasi-proofs_ and _half-proofs_ are allowed to prevail (as if
a man could be _half-innocent_ or _half-guilty_, in other words,
_half-punishable_ or _half-acquittable_); in which torture exercises its
cruel sway over the person of the accused, over the witnesses, and even
over the whole family of an unfortunate wretch, according to the coldly
wicked teaching of some doctors of law, who set themselves up as the rule
and standard for judges to follow.
In view of these principles it will appear strange (to anyone who does
not reflect, that reason has, so to speak, never yet legislated for a
nation), that it is just the most atrocious crimes or the most secret and
chimerical ones—that is, those of the least probability—which are proved
by conjectures or by the weakest and most equivocal proofs: as if it were
the interest of the laws and of the judge, not to search for the truth,
but to find out the crime; as if the danger of condemning an innocent
man were not so much the greater, the greater the probability of his
innocence over that of his guilt.
The majority of mankind lack that vigour which is equally necessary for
the greatest crimes as for the greatest virtues; whence it would appear,
that both extremes are contemporaneous phenomena in nations which depend
rather on the energy of their government and of the passions that tend to
the public good, than on their size and the constant goodness of their
laws. In the latter the weakened passions seem more adapted to maintain
than to improve the form of government. From which flows an important
consequence, namely, that great crimes in a nation do not always prove
its decline.