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[190] 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[191] 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.
