THE MILDNESS OF PUNISHMENTS.
From the simple consideration of the truths hitherto demonstrated it is
evident that the object of punishment is neither to torment and inflict
a sensitive creature nor to undo a crime already committed. Can he,
whose function it is, so far from acting from passion, to tranquillise
the private passions of his fellows, harbour in the body politic such
useless cruelty, the instrument either of furious fanatics or of weak
tyrants? Shall perchance the shrieks of an unhappy wretch call back from
never-receding time actions already executed? The object, therefore,
of punishment is simply to prevent the criminal from injuring anew his
fellow-citizens, and to deter others from committing similar injuries;
and those punishments and that method of inflicting them should be
preferred which, duly proportioned to the offence, will produce a more
efficacious and lasting impression on the minds of men and inflict the
least torture on the body of a criminal.
Who can read history without being horror-struck at the barbarous and
useless torments which men, who were called wise, in cold blood devised
and executed? Who is there but must feel his blood boil, when he regards
the thousands of wretches whom misery, either intended or tolerated by
the laws (which have always favoured the few and outraged the many),
has driven to a desperate return to the original state of nature; when
he sees them either accused by men endowed with the same senses, and
consequently with the same passions as themselves, of impossible crimes,
the fiction of timid ignorance, or guilty of nothing but fidelity to
their own principles; and when he sees them lacerated by slow tortures,
subject to well-contrived formalities, an agreeable sight for a fanatical
multitude?
In order that a punishment may attain its object, it is enough if the
evil of the punishment exceeds the advantage of the crime, and in this
excess of evil the certainty of punishment and the loss of the possible
advantage from the crime ought to be considered as part; all beyond this
is superfluous and consequently tyrannical. Men regulate their conduct by
the reiterated impression of evils they know, not by reason of evils they
ignore. Given two nations, in one of which, in the scale of punishments
proportioned to the scale of crimes, the severest penalty is perpetual
servitude, and in the other the wheel; I say that the former will have as
great a dread of its severest punishment as the latter will have; and if
there be any reason for transporting to the former country the greater
penalties of the other, the same reasoning will serve for increasing
still more the penalties of this latter country, passing imperceptibly
from the wheel to the slowest and most elaborate tortures, nay, even to
the last refinements of that science which tyrants understand only too
well.
The more cruel punishments become, the more human minds harden, adjusting
themselves, like fluids, to the level of objects around them; and the
ever living force of the passions brings it about, that after a hundred
years of cruel punishments, the wheel frightens men only just as much as
at first did the punishment of prison.
The very severity of a punishment leads men to dare so much the more to
escape it, according to the greatness of the evil in prospect; and many
crimes are thus committed to avoid the penalty of a single one. Countries
and times where punishments have been most severe have ever been those
where the bloodiest and most inhuman deeds have been committed, the same
spirit of ferocity that guided the hand of the legislator having guided
also that of the parricide and assassin; on the throne dictating iron
laws for the villanous souls of slaves to obey, and in the obscurity of
private life urging to the slaughter of tyrants, only to create fresh
ones in their stead.
Two other fatal consequences flow from the cruelty of punishments,
and are contrary to their very purpose, the prevention of crimes. The
first is, that it is not so easy to preserve the essential proportion
between crime and punishment, because, however much a studied cruelty
may diversify its forms, none of them can go beyond the extreme limit of
endurance which is a condition of the human organisation and sensibility.
When once this extreme limit is attained, it would be impossible to
invent such a corresponding increase of punishment for still more
injurious and atrocious crimes as would be necessary to prevent them.
The other consequence is, that impunity itself arises from the severity
of punishments. Men are restrained within limits both in good and evil;
and a sight too atrocious for humanity can only be a passing rage, not a
constant system, such as the laws ought to be; if the latter are really
cruel, either they are changed, or themselves give rise to a fatal
impunity.
I conclude with this reflection, that the scale of punishments should be
relative to the condition of a nation. On the hardened minds of a people
scarcely emerged from the savage state the impressions made should be
stronger and more sensible. One needs a thunderbolt for the destruction
of a fierce lion that faces round at the shot of a gun. But in proportion
as men’s minds become softened in the social state, their sensibility
increases, and commensurate with that increase should be the diminution
of the force of punishment, if it be desired to maintain any proportion
between the object and the sensation that attends it.