Essays, or discourses, vol. 2 (of 4)

by Benito Jerónimo Feijoo

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!