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

by Benito Jerónimo Feijoo

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.