CHAPTER XX.

CERTAINTY OF PUNISHMENTS—PARDONS.

One of the greatest preventives of crimes is, not the cruelty of the

punishments attached to them, but their infallibility, and consequently

that watchfulness on the part of the magistrates and that inexorable

severity on the part of the judge which, to be a useful virtue, must

coincide with a mild system of laws. The certainty of a punishment,

moderate though it be, will ever make a stronger impression than the

fear of another, more terrible, perhaps, but associated with the hope

of impunity; for even the least evils when certain always terrify men’s

minds, and hope, that gift of heaven, which often makes up to us for

everything, always throws into the distance the idea of greater evils,

especially when its force is increased by impunity, which avarice and

weakness so often grant.

It is sometimes the custom to release a man from the punishment of a

slight crime when the injured person pardons him: an act, indeed, which

is in accordance with mercy and humanity but contrary to public policy;

as if a private citizen could by his remission do away with the necessity

of the example in the same way that he can excuse the reparation due for

the offence. The right of punishing does not rest with an individual,

but with the community as a whole, or the sovereign. An individual can

only renounce his particular portion of that right, not annul that of all

the rest.

In proportion as punishments become milder, clemency and pardon become

less necessary. Happy the nation in which their exercise should be

baneful! Clemency, therefore, that virtue, which has sometimes made up

in a sovereign for failings in all the other duties of the throne, ought

to be excluded in a perfect system of legislation, where punishments

are mild and the method of trial regular and expeditious. This truth

will appear a hard one to anybody living in the present chaotic state

of the criminal law, where the necessity of pardon and favours accords

with the absurdity of the laws and with the severity of sentences of

punishment. This right of pardon is indeed the fairest prerogative of

the throne, the most desirable attribute of sovereignty; it is, however,

the tacit mark of disapproval that the beneficent dispensers of the

public happiness exhibit towards a code, which with all its imperfections

claims in its favour the prejudice of ages, the voluminous and imposing

array of innumerable commentators, the weighty apparatus of unending

formalities, and the adhesion of those persons of half-learning who,

though less feared than real philosophers, are really more dangerous.

But let it be remembered that clemency is the virtue of the maker, not

of the executor, of the laws; that it should be conspicuous in the code

of laws rather than in particular judgments; that the showing to men,

that crimes may be pardoned and that punishment is not their necessary

consequence, encourages the hope of impunity, and creates the belief

that sentences of condemnation, which might be remitted and are not, are

rather violent exhibitions of force than emanations of justice. What

shall be said then when the sovereign grants a pardon, that is, public

immunity to an individual, and when a private act of unenlightened

kindness constitutes a public decree of impunity? Let the laws therefore

be inexorable and their administrators in particular cases inexorable,

but let the law-maker be mild, merciful, and humane. Let him found his

edifice, as a wise architect, on the basis of self-love; let the general

interest be the sum of the interests of each, and he will no longer be

constrained, by partial laws and violent remedies to separate at every

moment the public welfare from that of individuals, and to raise the

appearance of public security on fear and mistrust. As a profound and

feeling philosopher let him allow men, that is, his brethren, to enjoy in

peace that small share of happiness which is given them to enjoy in this

corner of the universe, in that immense system established by the First

Cause, by Him Who Is.

Crimes and Punishments Including a New Translation of Beccaria's 'Dei Delitti e delle Pene' · 第 20 / 42 章