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

by Benito Jerónimo Feijoo

XLII. When I contemplate how necessary rigour is in such matters, none of these punishments strike me with horror. The most just and reasonable punishment for this mischief, and the best adapted for the purpose, is the Lex Talionis, which was dictated by the Divine mouth, and which God ordained to be established among the people of Israel, and which is also recommended by various texts of the civil law. It was in use in Spain, according to the practice of the antient law, called the law of Toro. But ultimately, on account of its not being adapted to all cases, Philip the IId. leaving it in its full vigour with respect to capital cases, where the false witness was to suffer the same punishment, which, if his evidence had taken effect, was to have been inflicted on the person accused; I say, with this exception, he ordained for all other cases of perjury, that the delinquent should be exposed to public shame and disgrace, and condemned to perpetual imprisonment in the gallies. But when will these laws be put in execution? I don’t know whether in the long course of my life, I have once seen the application of them. What most commonly happens is, that just as they are on the point of determining on the sentence, Pity violently and abruptly enters, and makes her appearance in the court; and upon contemplation of this most serene lady, the Judges, instead of public shame and perpetual confinement in the gallies, decree a fine or pecuniary punishment.

XLIII. The words of God to Moses, when he spoke to him of false witnesses, as related in the ninth chapter of Deuteronomy, are very remarkable; he says, non misereberis ejus. No, Moses; have no tenderness, no compassion, nor any bowels or pity for such. The decree seems rigid, and so it does; but it is absolutely necessary also. With a false witness, all should be rigour, without the least mixture of clemency: non misereberis ejus. And so it is fit it should be; for if it was otherwise, who would be safe in their property, their honour, or their lives? This is not in reality abandoning or losing sight of compassion, but fixing your attention to it on the proper objects; it is turning the eyes of pity from a guilty individual, and placing them on an innocent multitude.

XLIV. The same sort of punishment, which is inflicted on a false witness, having regard to proportioning the quantum of it to the nature or degree of the offence, should be applied to all those, who deceive, or in any shape procure deceit to be practised on Judges, in the business of trying a cause. It is necessary, in order to insure justice, to smooth the way by which truth is to advance to the tribunal, although it should be done with fire and sword. All that would be expended in rigour on this side, would be saved with interest on the other. By so much the more the proof of offences is facilitated, by so much the less will the number of them be; and the less frequent the sad spectacle of executions is, so much the less will the innocent suffer. Dispatch in civil causes, is also a matter of great importance, and should be added to the catalogue of these utilities.

XLV. On this account, I am of opinion, that no indulgence, or remission whatever, should be allowed at the instance of an advocate, upon a suggestion of false citations, or mistakes in terms of law (leaving however such cases to discretion, which may be attributed to the equivocal meaning of words, or accidental omissions); but abstracted from this exception, such attempts, if you consider them, are contrary to the virtue and essence of justice, and should not be permitted to succeed.

XLVI. Neither should the advocate escape without severe punishment, who espouses causes which are evidently unjust; and I think the most proper penalty which could be inflicted in such cases, would be a long suspension from the exercise of his function; and a Solicitor should be treated in the same manner, who raises impertinent difficulties, and makes frivolous objections, with a view of creating delay. But, O pernicious lenity! already these serious offences, which are contrary to good faith, and the true spirit of law, are judged to be sufficiently punished by a verbal reprehension. This is a weak bridle, to curb and restrain the impulses of avarice, ambition, love, fear and hatred, five enemies of justice, who alternately, according to the power or influence of the parties to the cause, incite judicial ministers to violate the chastity of their office.

XLVII. We in all parts hear complaints against the proceedings of Justices, their clerks, and other attendants on them. I believe, if all the delinquents of this class were punished according to their deserts, we should see an infinite number of the wands and pens of Spain converted to oars. These people are accused of, and supposed to make a trade of their profession. If all be true that is said of them, it seems as if the Devil, who after his own manner is always endeavouring to imitate the works of piety and benevolence, upon seeing the church had founded some convents of religious Mendicants, for the benefit and salvation of souls, had a mind to found in these gentry, a Mendicant irreligion, for the perdition of them. Their duty is to apprehend, or cause to be apprehended, thieves and robbers; their practice is, instead of taking the thief, to take something of or from him; and there are few delinquents who are not suffered to go at large, and with impunity, provided they have something large to bestow for being winked at. It is very difficult to detect collusions of this sort; but in proportion to this difficulty, should be the rigour of punishing them. If out of a great number who practise these iniquities, you should be only able to prove the guilt of one, it would be necessary to proceed with such severity against that one, as might terrify all the rest; that if they are not alarmed by the frequency of the punishment, they should be made to dread the weight of it.

XLVIII. Having before touched upon mulcts or pecuniary punishments, I will here frankly make known to you a reflection, which many years ago occurred to me on this mode of punishing, and which occasioned me to look upon it in no very favourable light. I say, I have considered that the burden of the mulct is not only loaded on the shoulders of the guilty, but many times sits equally, if not more heavy, on those of the innocent. A father of a family, with a scanty income, commits a crime, and by way of chastising him, he is fined a hundred ducats. The substraction of this sum, is not felt by him only who was guilty of the offence, but by his wife and his children also; and they are those who commonly suffer the most; for as every one loves himself better than his nearest relations, and the delinquent being master of the house, he keeps as large a share of the good things it contains for his own use as he thinks proper, and seldom curtails himself of the gratifications he enjoyed before, either with respect to food, raiment, or diversions. The saving to make good the sum taken from him is pinched out of the rest of his household. His own expences are the same, and the inconvenience occasioned by the deduction is chiefly borne by his wife and children. Don’t be surprized then, that I look with an unfavourable eye on a punishment, the greatest portion of which falls more on the innocent than the guilty. I confess, however, that many times this is unavoidable, and the levying pecuniary penalties established by law, for certain offences and neglects, is inevitable; besides which, there is a necessity to distrain for money, to defray the expences of law charges. What can be done then in this case? Why, you can only determine, to reduce this mode of punishment, within as narrow a compass as possible.

XLIX. The honour of the Judges also requires this should be done, because the vulgar, when they see mulcts laid on with a heavy hand, and do not perceive the money arising from them applied to purposes of public benefit, such as the building of bridges, the repairing of highways, the making of aqueducts, and in the aid of hospitals for the poor, &c. they easily persuade themselves, that the Judges are interested in the imposition of fines; and although Judges may sometimes be indiscreet and rash, it is necessary to rescue them from those gross imputations, when it can conveniently be done.

L. When delinquents have no families, and the consequences of depriving them of their money are only felt by themselves, no punishments appear to me more rational and proper than pecuniary ones, and especially when the nature of the offence does not demand a more severe chastisement. In the first place, it is not a sanguinary punishment, and is more consonant to the feelings of compassion, than one that is tinged with blood, both with respect to him who pronounces the sentence, and him to whom it is applied. Secondly, despoiling an evil-disposed man of his money, is disarming him of vice, as it deprives him of the weapons with which he was enabled to do mischief. Thirdly, if the money is expended for the good of the public, the community will derive a double advantage from this mode of punishment, as somewhat of temporal benefit will be added by it, to a well-adapted and exemplary application of justice.

LI. I now, my Son, have told you my sentiments on all that has occurred to me as most essential in judicial administration. If, upon seeing me so scrupulously tenacious on the side of justice, it shall appear to you that I mean to erase clemency out of the catalogue of virtues, you are mistaken. I know the excellence of this virtue, and even lament, that in our ministry there is but small scope for exercising it. I venerate this divine quality, which, on account of its elevated and sublime nature, I contemplate, as superior to the sphere of our jurisdiction. I call it divine, by reason of its active power to remit penalties decreed by the laws, which is an authority or prerogative almost peculiarly belonging, and proper to God alone. He, as Supreme Master, can pardon all sorts of crimes; Kings as next to him in sovereignty, can pardon some; but the hands of their inferior ministers are tied in all cases; for he who is subject to the laws, can never be vested with a power to arbitrate and dispense forgivenesses.