After having considered offences as diseases in the body politic,† analogy leads us to regard as remedies the means of preventing and repairing them.
These remedies may be arranged under four classes:—
Preventive Remedies.— The different methods of preventing a crime may be thus called. Of these there are two sorts: Direct methods, applying immediately to a particular offence: Indirect methods, consisting in general precautions against a whole class of offences.
Suppressive Remedies.— These are means which tend to cause an offence to cease — an offence begun, but not completed, and consequently, to prevent at least a portion of the evil.
Satisfactive Remedies are those by which reparation is made, or indemnification given to an innocent person, on account of the evil he has suffered by an offence.
Penal Remedies, or simply Punishments. When the evil has been made to cease, when the party injured has been indemnified, it is still necessary to prevent the recurrence of similar offences, both on the part of the offender and of every one else.
* There are two methods by which this end may be obtained: the one by correcting the will; the other by taking away the power to injure. The will is influenced by fear. Power is taken away by physical restraint. To take away from an offender the will to offend again, is to reform him: to take away the power of offending is to incapacitate him. A remedy which ought to act by means of fear, is it called a punishment? has it, or has it not, the effect of incapacitating? This depends upon its nature.
The principal end of punishments is to prevent like offences. The past offence is only as one point; the future is infinite. The past offence concerns only one individual; similar offences may affect every one. In many cases, the evil committed is irreparable; but the will to do evil may always be taken away, because, how great soever the advantage of the offence may be, the evil of the punishment may be made to surpass it.
These four classes of remedies may sometimes require different operations; sometimes the same operation will suffice for all.
We shall treat in this Book of Direct Preventive Remedies — of Suppressive Remedies — and of Satisfactitive Remedies. The second part will treat of Punishments, and the third of Indirect Preventive Remedies.
Before an offence is consummated, it may announce itself in various manners: it may pass through degrees of preparation, which often allow of its being stopped before it reaches its catastrophe.
This part of police may be exercised either by powers conferred on all persons, or by special powers delegated to persons in authority.
The powers conferred on all persons for their protection are such as may be exercised before justice intervenes, and may for this reason be called antejudicial methods. Such is the right of opposing by force the execution of an apprehended offence; the seizing a suspected person, and keeping him in custody; the taking him before the judge; the using force; the sequestering in responsible hands any thing supposed to be stolen, or which may be expected to be destroyed; the arresting all the assistants as witnesses; the requiring the aid of every one, in order to conduct before the magistrates those who may be suspected of evil designs.
The obligation of rendering such services might be imposed, and every citizen required to render them, as one of the most important duties in society: it might also be well to establish rewards for those who have assisted in preventing an offence, and delivering the offender into the hands of justice. Will it be said, that these powers may be abused, and that individuals might use them for the purposes of depredation? Such danger is imaginary. This affectation of order and publicity could only oppose their designs, and expose them too manifestly to punishment.
General Rule.— There is not much danger in granting rights which can only be enjoyed by an exposure to all the inconveniences of their exercise in case they should not be recognised.
To refuse to justice the assistance it may derive from all these means, would be to suffer an irreparable evil, from the fear of an evil which could be repaired.
Independently of these powers, which ought to belong to all, there are others which only belong to magistrates, and which may be of great use in preventing offences which are apprehended.
1. Admonition.— It is a simple lesson, but given by a judge, cautioning the suspected individual, showing that he is observed, and recalling him to his duty by a respectable authority.
2. Threatening.— This is the same method, but enforced by the menace of the law. In the first, it is the paternal voice which uses the language of persuasion: in the second, it is the magistrate who intimidates by the language of severity.
3. Promises required of keeping from a certain place.— This method, applicable to the prevention of many offences, is particularly so to quarrels, personal offences, and seditious practices.
4. Partial Banishment.— Prohibition to the suspected individual to present himself before the threatened party, to be in the same dwelling-house, or in any other place intended as the theatre of the crime.
5. Bail.— Obligation to furnish bondsmen, who will engage to pay a fine in case of contravention of the separation required.
6. Establishment of Guards for the protection of persons or things threatened.
7. Seizure of arms or other instruments intended to be employed in the apprehended offence.
Besides these general methods, there are some which apply specially to certain offences. We shall not here enter into these details of police and administration. The choice of these methods, the occasion, the manner of applying them, depend upon a great number of circumstances; on the other hand, they are sufficiently simple, and almost always pointed out by the nature of the case. In case of injurious defamation, the writings may be seized before publication. With respect to unwholesome eatables, liquors, or medicines, they may be destroyed before they are made use of. Judicial visits and inspections may serve to prevent frauds, clandestine acts, and smuggling.
These kinds of cases rarely admit of precise rules. Much must necessarily be left to the discretion of the public officers and judges; but the legislator ought to give them instructions, to hinder the abuse of their arbitrary powers.
These instructions should be framed upon the following maxims: The more rigorous the means employed, the more scrupulous should they be in their use. More may be done, in proportion to the grandeur of the offence apprehended and its apparent probability — in proportion also as the offender appears more or less dangerous, and as he has greater or less means of accomplishing his evil designs.
There is one limit which ought never to be neglected: “No method of prevention should be employed, which is likely to cause a greater mischief than the offence itself.”
Having treated of suppressive remedies, that is to say, of the methods of causing offences to cease, let us see what are the offences which can thus be made to cease, for all have not this capacity, and those which have, have it not in the same manner.
The possibility of causing an offence to cease, supposes a duration sufficiently great to admit of the intervention of justice. But all offences have not this duration: some have a transient effect; the effect of others is permanent. Homicide and rape are irreparable: theft may last only a moment; it may also last for ever, if the thing stolen have been consumed or lost.
It is necessary to distinguish the circumstances under which offences have a greater or less duration, because they affect the suppressive methods which are applicable to them respectively.
1. An offence acquires duration, by the simple continuance of an act capable of ceasing at each moment, without ceasing to have been an offence. The detention of a person, the concealment of any thing, are offences of this nature. First class of chronic offences, ex actu continuo.
2. Is the design to commit an offence, regarded as an offence? it is clear, that the continued design will be a continued offence. This class of offences may coincide with the former, ex intentione persistente.
Among other offences which possess duration, are the greater number of negative offences, of those which consist of omissions: not to provide for the nourishment of a child with which one is chargeable; not to pay his debts; not to surrender to justice; not to discover his accomplices, not to put an individual into possession of a right which belongs to him. Third class of chronic offences, ex actu negativo.
4. There are some corporeal works, of which the existence is a prolonged offence: A manufacture injurious to the health of a neighbourhood; a building which obstructs a road; a bank which contracts the course of a river, &c. Fourth class of chronic offences, ex opere manente.
5. The productions of the mind may possess the same character, through the intervention of printing. Such are libels, pretended histories, alarming prophecies, obscene prints; in a word, every thing which presents to the eyes of the citizens, under durable signs, ideas which ought not to be presented to them. Fifth class of chronic offences, ex scripto et similibus.
6. A train of actions may possess a character of unity, in virtue of which, he who performs them is said to have contracted a habit. Such are the coining of money; of the processes prohibited in a manufacture; smuggling in general. Sixth class of chronic offences, ex habitu.
7. There is a kind of duration in certain offences, the which, though they differ among themselves, take a character of unity, from the one having been the occasion of the other. A man having committed waste in a garden, beats the proprietor, who comes to oppose him; he follows him into the house, insults his family, destroys his furniture, kills his favourite dog, and continues his depredations. Thus an indefinite series of offences is formed, during the continuance of which, opportunity may occur for the intervention of justice. Seventh class of chronic offences, ex occasione.
8. There is a kind of duration in the case of many offenders, who either, with or without concert, pursue the same object. Thus, of a confused mixture of acts of destruction, threats, verbal and personal, injuries, insulting cries and provoking clamours, is formed the sad and terrible compound called tumult, riot, insurrection — forerunners of rebellion and civil wars. Eighth class of chronic offences, ex co-operatione.
Chronic offences are liable to have their catastrophe. The projected offence terminates in the consummated offence. Simple corporal injuries have for their natural termination, irreparable corporal injuries and homicide. With respect to imprisonment, there is no crime which it may not have for its object: to unloose an inconvenient matrimonial connexion — to accomplish a project of seduction — to suppress a testimony — to extort a secret — to hinder the reclaiming of property — to obtain forced assistance in an outrageous enterprise; — in a word, imprisonment may always have some particular catastrophe, according to the design of the offender.
In the course of a criminal enterprise, the end may be changed as well as the means. A thief surprised may, from fear of punishment, or regret for having lost the fruit of his crime, become an assassin.
It belongs to the foresight of the judge to represent to himself, in each case, the probable catastrophe of the offence commenced, in order to prevent it by a prompt and well-directed interposition. In order to determine the punishment, he ought to regard the intentions of the offenders: in applying preventive or suppressive remedies, he ought to regard all the probable consequences, as well those which have been intended, as those which have been neglected or unforeseen.
The different kinds of chronic offences require different suppressive remedies. These suppressive means are the same as the preventive means, of which we have already given a catalogue. The difference lies only in the time of their application.
In some cases, the preventive means correspond so exactly with the nature of the offence, that it is scarcely necessary to point them out. It is clear that injurious imprisonment requires liberation — that theft requires restoration in kind. The only difficulty is to know where to find the thing or the person detained.
There are other offences, such as seditious mobs, and certain negative offences — in particular, the non-payment of debts, which require more far-fetched means for their suppression. We shall have occasion to examine these under their proper heads.
The evil of dangerous writings is more difficult to suppress. They hide themselves — they re-appear; they spring up with new vigour after the most rigorous proscriptions. We shall find among the indirect methods, those which are most efficacious in opposing them.
Greater latitude must be left to the magistrate with respect to suppressive means, than with respect to preventive means. The reason is clear. Is an offence to be suppressed? there is a crime already proved, and a punishment appointed in consequence? Nothing is risked in making it cease, so long as what would be done for its punishment is not exceeded. Is an offence to be prevented? too many scruples can hardly be felt: there may be no such offence in agitation; it may be attributed to the wrong person; it may be that the individual suspected acts only with a good intention, and, instead of becoming culpable, will stop of himself. All these possibilities require a more gentle and regulated procedure, in proportion as the apprehended crime is problematical.
These means may be reduced to the following precautions:—
1. The keeping a register of all places in which persons are confined, without their consent: Prisons, hospitals for the insane and idiots, and private houses into which invalids of this class are received.
2. The keeping a register of the cause of the detention of each prisoner; the not permitting the detention of a madman but after a judicial consultation of physicians, signed by them. These two registers, preserved in the tribunals of each district, should be publicly exposed, or at least allowed to be freely consulted by every body.
3. To determine upon some signal which should, as much as possible, be in the power of every person who is carried off, to the effect of authorizing the passers by to call the ravishers to account; to accompany them if they declare that they wish to carry the prisoner before the judges; or to take them thither themselves, if they have a different intention.
4. To grant to every one the right to apply for the opening of every house in which he suspects that the person he seeks for is detained against his will.
In England, in the case of seditious mobs, they do not begin with military assassination: warning precedes punishment; martial law is proclaimed, and the soldier cannot act till after the magistrate has spoken.
The intention of this law is excellent: but does the execution correspond with it? The magistrate is to go into the midst of the tumult, and read a long and tiresome formula which no one understands; and woe be to those who, an hour afterwards, are in that place! they are declared convicted of a capital offence. This statute, dangerous to the innocent, difficult to be executed against the guilty, is a compound of weakness and violence.
At the moment of disorder, the presence of the magistrate ought to be announced by some extraordinary sign. The red flag, so famous in the French revolution, had a great effect upon the imagination. In the midst of clamour, the ordinary means of language do not suffice. A multitude can only use their eyes: their eyes should therefore be addressed. A speech requires attention and silence, but visible signs have a rapid and powerful operation: they speak the whole at once; they have only one meaning, which cannot be equivocal: an intentional noise, a concerted report, cannot prevent their effect.
Besides, words lose their influence from a crowd of unforeseen circumstances. Is the speaker hated, the language of justice becomes hateful when uttered by him? His character, his behaviour, his first appearance, are these ridiculous? this ridicule extends to his functions, and degrades them — another reason for speaking to the eyes by respectable symbols, which are not subject to the same caprices.
But as it may be necessary to add words to signs, a speaking trumpet is essentially necessary. Even the singularity of this instrument would contribute to give more eclât and dignity to the orders of justice, by removing all idea of familiar conversation, by impressing the conviction that it was not the simple individual himself who was heard, but a privileged minister, the herald of the laws.
This method of making one’s self heard at a distance, has been long employed at sea, where distance, the noise of the winds and the waves, have made the weakness of the voice sensible. Poets have often compared a people in commotion to the sea in a storm: ought this analogy to be acknowledged only as a source of amusement? It would be of much greater importance in the hands of justice.
The orders should be in few words — nothing which appears like ordinary discourse or discussion — no reference to the king — but to justice alone. The head of the state may be justly or unjustly an object of aversion — this aversion may even be the cause of the tumult: to recal this idea would be to inflame the passions, instead of calming them. If he be not odious, why expose him to the liability of becoming so? Every favour, every thing which bears the character of benevolence, ought to be represented as the work of the father of his people. All rigour, all acts of severity, need be attributed to no one. The hand which acts may be artfully hidden. They may be thrown upon some creature of the imagination, some animated abstraction — such as justice, the daughter of necessity and mother of peace, whom men ought always to fear, but never to hate, and who always deserve their first homage.
What is satisfaction? A benefit received in consideration of an injury. If it refer to an offence, satisfaction is an equivalent given to a party injured, on account of the injury he has suffered.
Satisfaction is plenary, when, upon adding up the two sums — the one of the evil suffered, the other of the good received — the value of the second appears equal to the value of the first, in such manner, that if the injury and the reparation could be repeated, the event would appear indifferent to the party injured. Does the reparation want any thing in value to make it equal in value to the evil? the satisfaction is only partial and imperfect.
Satisfaction has two aspects or two branches: the past and the future. Satisfaction for the past is called indemnification; satisfaction for the future consists in making the evil of the offence to cease. Does the evil cease of itself? nature exercises the functions of justice, and the tribunals have nothing in this respect to do.
Has a sum of money been stolen? so soon as it is restored to its owner, satisfaction for the future is complete. It remains only to indemnify him for the past, for the temporary loss he has experienced during the continuance of the crime.
But with respect to a thing wasted or destroyed, satisfaction for the future can only have place by giving to the party injured something similar or equivalent. Satisfaction for the past consists in indemnifying him for the temporary privation.
Satisfaction is necessary in order to cause the evil of the first class to cease, and reestablish every thing in the condition it was in before the offence; to replace the individual who has suffered in the lawful condition in which he would have been if the law had not been violated.
Satisfaction is still more necessary in order to cause the evil of the second class to cease: punishment alone does not effect this. It tends, without doubt, to diminish the number of offenders; but this number, though diminished, cannot be considered as null. The examples of crimes committed more or less publicly, will excite more or less of apprehension. Each observer will there see a chance of suffering in his turn. Is it wished that this feeling of dread should disappear? it is necessary that satisfaction should follow as constantly as punishment. If the crime be followed by punishment without satisfaction, so many offenders punished, so many proofs that the punishment is inefficacious, and consequently so much alarm which presses on society.
But we must make one essential observation here. In order to take away the alarm, it is sufficient that the satisfaction should appear complete to the eyes of the observers, when it may not be so to the eyes of the persons interested.
How shall we judge if the satisfaction be perfect, with respect to him who receives it? The balance in the hands of passion will always incline to the side of interest. To the miser you can never give enough: to the revengeful, the humiliation of his adversary never appears sufficiently great. It is necessary, then, to imagine an impartial observer, and to regard as sufficient the satisfaction which would make him think that, for such a price, he would hardly regret to receive such an injury.
Six kinds of satisfaction may be distinguished:
1. Pecuniary Satisfaction.— The means of procuring almost all pleasures, money is an efficacious compensation for many evils; but it is not always in the power of the offender to furnish it, nor agreeable to the party offended to receive it. Offer an offended man of honour the mercenary price for an insult, it is a new affront.
2. Restitution in kind.— This satisfaction consists either in restoring the thing which has been taken away, or in giving a like thing, or an equivalent, for that which has been taken away or destroyed.
3. Attestative Satisfaction.— If the evil result from a falsehood, from a false opinion with respect to a point of fact, the satisfaction is completed by a legal attestation of its truth.
4. Honorary Satisfaction.— An operation which has for its object either to maintain or re-establish, in favour of an individual, a portion of honour, that the offence of which he has been the object has made him lose, or run the risk of losing.
5. Vindictive Satisfaction.— Every thing which inflicts a manifest pain upon the offender may yield a pleasure of vengeance to the party injured.
6. Substitutive Satisfaction— or satisfaction at the expense of a third party; as when a person who has not committed a crime finds himself responsible in his fortune for him who has committed it.
In determining the choice of the kind of satisfaction to be granted to an injured party, three things should be considered: the facility of furnishing it; the nature of the evil to be compensated; and the feelings which may be supposed to belong to him. We shall soon recur to these different heads, for the purpose of considering them more at large.
So much as the satisfaction wants of being complete, so much evil remains without remedy. What is required to prevent deficiency, in this respect, may be reduced to two rules:—
1. The evil of the offence must be followed in all its parts — in all its consequences, that the satisfaction may be proportioned to it.
With respect to irreparable corporal injuries, two things should be considered: a means of enjoyment, a means of subsistence, has been taken away for ever. It is not possible to bestow compensation in kind, but it is possible to apply to the evil a perpetually recurring gratification.
With respect to homicide, it is necessary to consider the loss sustained by the heirs of the deceased, and to make compensation for it, by a gratification once paid, or periodically paid during a longer or shorter time.
With respect to an offence against property, we have seen, in treating of pecuniary satisfaction, all that it is necessary to observe to make the reparation rise to the amount of the loss.
2. In case of doubt, make the balance incline in favour of him who has suffered the injury, rather than of him who has done it.
All the accidents should be placed to the account of the offender: every satisfaction ought to be rather superabundant than defective. If superabundant, the excess can only serve to prevent like offences, in the character of punishment: if defective, the deficiency always leaves some degree of alarm; and, in crimes of enmity, all the evil not compensated is a subject of triumph for the offender.
Laws have every where been imperfect upon this point. On the side of punishment, excess has been little dreaded: on the side of satisfaction, little trouble has been taken with reference to deficiency. Punishment, an evil which when in excess, is purely mischievous, is scattered with a lavish hand; whilst satisfaction, which altogether produces good, is given with a grudging parsimony.
The certainty of satisfaction is an essential branch of security. Whatever diminution there is in this respect, is so much security lost.
What should be thought of those laws which, to the natural causes of uncertainty, add factitious and voluntary ones? It is to obviate this defect that we lay down the two following rules:—
1. The obligation of satisfying shall not be extinguished by the death of the party injured. What was due to the deceased on account of satisfaction, remains due to his heirs.
To make the right of receiving satisfaction depend upon the life of the individual injured, would be to take from this right a part of its value: it is the same as if a perpetual rent was reduced to a life annuity. Its enjoyment can only be obtained by a process which may occupy a long time. As regards an aged or infirm person, the value of this right declines with himself; as regards a dying person, this right is worth nothing.
Besides, if you diminish the certainty on the side of satisfaction, you increase in the delinquent the hope of impunity. You show him, in perspective, a period at which he may enjoy the fruit of his crime: you give him a motive for retarding, by a thousand obstacles, the judgments of the tribunals, or even for hurrying on the death of the party injured. You at least put out of the protection of the laws, the persons who have need of the greatest care — the sick and the dying.
It is true, that supposing the obligation to render satisfaction extinct by the death of the party injured, the offender may be subjected to another punishment; but what punishment would be so suitable as this?
2. The right of the party injured shall not be extinguished by the death of the offender, or of the author of the damage. What was due from him on account of satisfaction, shall be due from his heirs.
To determine otherwise, would be again to diminish this right, and to encourage crime. That a man, because his death is near, should commit an injustice without any other object than the advantage of his children, is a case which is not very rare.
It may be said, that if the party injured be satisfied after the death of the offender, it is by an equal suffering imposed upon his heir. But there is a wide difference. The expectation of the party injured is a clear, precise, decided expectation, firm in proportion to his confidence in the protection of the laws. The expectation of the heir is only a vague hope. What is its object? Is it the entire inheritance? No: It is only the unknown net produce, after all legitimate deductions. That which the deceased might have spent upon his pleasures, he has spent upon his misdeeds.
There are some cases in which pecuniary satisfaction is demanded by the nature of the offence itself: there are other cases in which it is the only one allowed by the circumstances. It ought to be preferred on the occasions in which it promises to have its greatest effect.
Pecuniary satisfaction is at its highest point of suitability in the cases in which the damage sustained by the party injured, and the advantage reaped by the offender, are equally of a pecuniary nature, as in theft, peculation, and extortion. The evil and the remedy are homogeneous — the compensation may be exactly measured by the loss, and the punishment by the profit of the offence.
This species of satisfaction is not so well founded when there is a pecuniary loss on one side, without any pecuniary profit on the other; as in waste, on account of enmity, by negligence or by accident.
It is still less well founded in the cases in which neither the evil suffered by the party injured, nor the advantage reaped by the author of the crime, can be valued in money; as in injuries which relate to honour.
The more a method of satisfaction is found incommensurable with the damage — the more a method of punishment is found incommensurable with the advantage of the offence — the more are they respectively liable to lose their aim.
The ancient Roman law, which awarded a crown as an indemnification for a box on the ear, did not provide for the security of honour. The reparation had no common measure with the outrage, its effect was precarious, whether as satisfaction or as punishment.
There still exists an English law which is a remnant of barbarous times: manent vestigia ruris. A daughter is considered as the servant of her father. Is she seduced, the father can obtain no other satisfaction than a sum of money, the price of the domestic services of which it is considered that he may be deprived by the pregnancy of his daughter.
In personal injuries, a pecuniary indemnification may be suitable or not, according to the fortunes on the one side and the other.
In regulating a pecuniary satisfaction, the two branches of the past and of the future ought not to be forgotten. Satisfaction for the future consists simply in making the evil of the offence to cease: satisfaction for the past, consists in indemnification for the wrong suffered. The payment of a sum due is satisfaction for the future; the payment of the interest accrued on this sum is satisfaction for the past.
Interest ought to accrue from the moment the mischief which it is intended to compensate happens; from the moment, for example, from which the payment due has been delayed — or the thing has been taken, destroyed, or damaged — or the service which ought to have been rendered has been neglected.
Interests granted on account of satisfaction ought to be higher than the ordinary rate of commerce, at least when evil intention is suspected.
This excess is highly necessary: if the interest were only equal, there would be many cases in which the satisfaction would be incomplete, and other cases in which a profit would remain to the delinquent; a pecuniary profit, if he have wished to procure a forced loan at the ordinary rate of interest; a pleasure of vengeance or enmity, if he have wished to hold the injured party in a state of want, and to enjoy his distress.
For the same reason, compound interest ought to be calculated; that is to say, the interest ought to be added to the capital, each time that the interest ought, according to custom, to become due, since the capitalist, at the expiration of every such term, might convert his interest into capital, or derive some equivalent advantage from it. Leave this part of the damage without satisfaction, there will be, on the part of the proprietor, a loss, and on the part of the delinquent a gain.
Among co-delinquents, the expense of the satisfaction ought to be divided among them according to their fortunes, except when this division ought to be modified according to the different degrees of their criminality. In truth, the obligation to make satisfaction is a punishment, and this punishment would be on the pinnacle of inequality, if co-delinquents of unequal fortunes were taxed equally.
Restitution in kind is principally of importance with regard to things which possess a value in affection.*
But it ought to be made on all occasions, if possible. The law ought to ensure to me every thing which is mine, without forcing me to accept equivalents, which are not even such so soon as I dislike them. Without restitution in kind, security is not complete. What security is there for the whole, when there is no security for any part?
A thing taken away, either honestly or dishonestly, may have passed into the hands of an honest acquirer. Shall it be restored to the first proprietor? shall it be continued in the possession of the second? The rule is simple: it ought to remain with him who may be presumed to have the greatest affection for it. Now this superior degree of affection may be easily presumed from the relation which has been borne to it, from the time that it has been possessed, from the services which have been drawn from it, from the care and expense which it has cost. These indications commonly unite in favour of the true original proprietor.†
The preference is equally due to him in the cases in which there is any doubt; for these reasons:— 1. The last proprietor may have been an accomplice, without the proofs of this complicity having been obtained. Is the suspicion unjust? Formed by the law, and not by the man, bearing upon the species, and not upon the individual, it does not produce any impeachment of honour. 2. If the acquirer be not an accomplice, he may be culpable from negligence or temerity, either by omitting the ordinary precautions for verifying the title of the vender, or by giving too easy a belief to slight indications. 3. With respect to weighty offences, such as violent robbery, it is proper to give the preference to the first possessor, in order to strengthen the motives which engage him in pursuit of the offender. 4. Has the spoliation arisen from malice? to leave the thing in the possession of any one besides the stript proprietor, would be to leave the offender in possession of the profit of his crime.
A purchase at a low price ought always to be followed by restitution, on the price being repaid. This circumstance, if it do not prove complicity, is at least a strong presumption of dishonesty. The buyer could not hide from himself the probability of an offence on the part of the seller; for that which causes the low price of stolen goods, is the danger of taking them to an open market.
When the acquirer, being deemed innocent, is obliged, on account of the dishonesty of the seller, to restore any article to the original proprietor, this ought to be accompanied by the payment of a pecuniary equivalent, regulated by the judge.
The simple expense of keeping — for still stronger reasons, improvements and extraordinary expenses — ought to be liberally repaid to the posterior acquirer. This is not only a means of promoting the general wealth; it is also the interest even of the original proprietor. According as this indemnity is granted or refused, the improvement of the article is either promoted or hindered.‡
Neither the original proprietor, nor the posterior acquirer, ought to gain at the expense, the one of the other: the loser ought to have recourse for his indemnity, in the first instance, to the delinquent, afterwards to the subsidiary funds, of which we shall hereafter speak.∥
When identical restitution is impossible, restitution of a similar thing ought, as far as possible, to be substituted. Suppose two rare medals of the same die: the possessor of one of them, after having got possession of the other, either by negligence or design, destroys or loses it. The best satisfaction in this case, is to transfer the medal which belongs to him, to the party injured.
Pecuniary satisfaction, in offences of this kind, is apt to be found insufficient, or even null. Value in affection is rarely appreciated by third persons. It requires a highly enlightened benevolence, an uncommon philosophy, in order to sympathize with tastes which are not our own.
The Dutch florist, paying in pounds of gold for a tulip bulb, smiles at the antiquary who purchases at a great price a rusty lamp.*
Legislators and judges have often thought like the vulgar: they have applied unpolished rules to what demanded a delicate discernment. To offer, in certain cases, an indemnification in money, is no satisfaction — it is insult. Would gold be taken for the portrait of a beloved object, if stolen by a rival?
Simple restitution in kind leaves a deficiency in the satisfaction, proportioned to the value of the enjoyment lost during the continuance of the offence. How shall this value be estimated? This will be made clear by an example. A statue has been illegally taken away: this statue, sold by auction, would fetch one hundred pounds, according to the opinion of the best judges. Between the taking away and the restitution, a year has elapsed: the interest of money is five per cent.; place to the head of satisfaction for the past, ordinary interest, five pounds; for penal interest (according to chap. xi.) say two and a half; total, seven pounds ten shillings per cent.
In valuing interests, the deterioration, whether accidental or necessary, that the object may have undergone in the interval between the commission of the offence and the fact of restitution, ought not to be neglected. The statue may not necessarily have lost any thing, but a horse of the same price would necessarily have diminished in value. A collection of tables of natural deterioration, year by year, according to the nature of the object, is one of the articles needed in the library of justice.
This method of satisfaction is particularly adapted to crimes of falsehood, from which any opinion results prejudicial to an individual, without its being possible to estimate the amount of the damage or its extent, or even the existence of its effects. So long as the error exists, it is a constant source of actual or probable evil: there is only one method of stopping it; that is, establishing the contrary truth by evidence.
The enumeration of the principal offences of falsehood will naturally find a place here. 1. Simple mental injuries, consisting in spreading false alarms: for example, tales of apparitions, ghosts, vampires, sorcery, demoniacs, possessions, &c.; false reports of a nature to fill any individual with fear or sorrow: pretended deaths, bad conduct of parents and relations, conjugal infidelity, loss of goods, &c.; falsehoods likely to alarm a more or less numerous class; as reports of pestilence, invasion, conspiracy, incendiarism, &c.
2. Offences against reputation, among which may be distinguished many kinds. Positive defamation, by facts set down, or by ingenious libels. Weakening of reputation, which consists in weakening what cannot be destroyed; in hiding from the public, for example, a circumstance which would add to the eclât of a celebrated action. Interruption of reputation, which consists in suppressing a fact, concealing a work honourable to a certain individual, or in taking from him the opportunity of distinguishing himself, by causing an enterprise to be regarded as impossible or accomplished. Usurpation of reputation: All plagiarism, whether by authors or artists, are examples of this.
3. Fraudulent acquisition.— Examples:— False reports, for the purpose of stock-jobbing; false reports to influence the price of the negotiable securities of any commercial company.
4. Disturbance of the enjoyment of the rights attached to a domestic or civil condition.— Example: The denying to the right possessor, the possession of his condition; of a husband with regard to a certain woman — of wife with respect to a certain man — of child with regard to a certain man or woman; the attributing falsely a like condition to one’s self; the acting a falsehood of the same kind with respect to any civil condition or privilege.
5. Hindering acquisition.— Hindering a man from acquiring or selling, by false reports; disputing the value of any thing or the right to sell it; hindering a person from acquiring a certain condition, as marriage, by false reports, which cause it to be deferred, or not to take place.
In all these cases, the arm of justice would be powerless; forcible methods would be in vain, or imperfect. The only efficacious remedy is an authentic declaration which destroys the falsehood. To destroy the error — to publish the truth — these are functions worthy of the highest tribunals.
What form ought to be given to attestative satisfaction? It may be varied according to all the methods of publicity: printing and publication of the judgment at the expense of the delinquent; placards distributed at the choice of the party injured; publication in the national and foreign journals, &c.
The idea of this satisfaction, so simple and so useful, has been derived from French jurisprudence. When a man had been calumniated, the parliaments almost always ordained that the sentence which re-established his reputation should be printed and placarded at the expense of the calumniator.
But why oblige the delinquent to declare that he has uttered a lie, and publicly to recognise the honour of the party injured? This plan was bad in many respects: it was wrong to prescribe to a man the expression of certain sentiments which might not be his own, and to risk the judicially commanding a lie. It was also wrong to weaken the reparation by an act of constraint; for, finally, what does a retractation made at the command of justice prove, but the weakness and the fear of him who pronounces it?
The delinquent may be the organ of his own condemnation, if it is judged proper to augment his punishment: but this may be done without deviating from the exact truth, provided that the formula which is prescribed to him, expresses the sentiments of justice as being those of justice, and not as his own. “The court has judged that I have advanced a falsehood; — the court has judged that I have swerved from the character of an honest man; — the court has judged that in all this affair my adversary has behaved as a man of honour.” This is all that concerns the public and the party injured: it is a sufficiently brilliant triumph for the truth, a humiliation sufficiently great for the guilty. What would be gained by obliging him to say —“I have uttered a falsehood; — I have swerved from the character of an honest man; — my adversary has behaved as a man of honour?” This declaration, stronger than the first in appearance, is much less so in reality. The fear which dictates such disavowals, does not change the real sentiments; and whilst the mouth pronounces them before a numerous auditory, the cry of the heart is heard, so to speak, disavowing them.
With reference to a fact, justice is less liable to be deceived, and the direct avowal of falsehood required from the condemned party in his own name, would be almost always conformed to his inward conviction; but with reference to an opinion, to the opinion of the delinquent, the disavowal commanded of him will be almost always opposed to his inward conviction. In such contests, impartial persons would condemn an individual ten times for each once that he condemned himself. Is he for a moment sufficiently calm to give place to reflection? the triumph of his adversary is before his eyes, he is himself the instrument of its publication, and the irritation of wounded pride would augment the prejudices of his mind. He may be honestly deceived, and you oblige him to accuse himself of falsehood; you place him in a cruel position, in which the more honest he is, the more he will suffer; in which he will be punished the more, the less he deserves it.
We have seen in what manner those offences against reputation, which have falsehood for their instrument, may be remedied: but there are other offences of this class, more dangerous. Enmity has more certain methods of deeply attacking honour: it does not always hide itself in a timid calumny; it openly attacks its enemy, but it attacks him not with violence, which puts him in personal danger. Humiliation is the object in view. The proceeding least painful in itself is often most weighty in its consequences: by doing more mischief to the person, less injury is done to honour. A sentiment of pity must not be excited in favour of the sufferer, since this would produce a feeling of antipathy towards his adversary: he must be made an object of contempt. Hatred has exhausted all its refinements in this species of offences. It is necessary to oppose to them peculiar remedies, which we have distinguished by the name of Honorary Satisfaction.
To perceive this necessity, the nature and tendency of these offences must be examined; the causes of their gravity, the remedies which have at present been found for them in duels, and the imperfection of these remedies. These researches, which relate to all that is most delicate in the human heart, have been almost entirely neglected by those who have made the laws; they are, however, the original foundations of all good legislation in matters of honour.
In the actual state of manners among the most civilized nations, the ordinary, the natural effect of these offences, is to take away from the offended party a more or less considerable portion of his honour; that is to say, he no longer enjoys the same esteem among his fellows: he has lost a proportional part of the pleasures, the services, the good offices of all kinds, which are the fruits of such esteem; and he may find himself exposed to the disagreeable consequences of their contempt.
But since the evil essentially consists in this change which is produced in the opinions of men in general, it is these who ought to be regarded as its immediate authors. The nominal delinquent makes only a slight scratch, which, left to itself, would soon heal: it is these other persons, who, by the poisons they pour into it, make it a dangerous, and often incurable wound.
At first sight, the rigour of public opinion against an insulted individual appears a revolting injustice. A stronger, or more courageous man, abuses his superiority, and ill treats in a certain manner one whose weakness ought to have protected him: all the world, as by a mechanical movement, instead of being indignant against the oppressor, ranges itself on his side, and ungenerously causes sarcasm and contempt, often more bitter than death itself, to fall upon its victim. At the given signal by an unknown individual, the public emulously precipitates itself upon the devoted innocent, as a ferocious dog waits only the signal from his master to tear a passenger. It is thus that a scoundrel, who wishes to deliver an honest man to the torments of opprobrium, employs those whom the men of the world calls honest people as the executioners of his tyrannical injuries; and as the contempt which an injury attracts is in proportion to the injury itself, this domination of evil doers is so much the more inexcusable as the abuse is more atrocious.
Whether a flagrant injury has been deserved or not, no one deigns to inquire, nor whether its insolent author is triumphant, but how it may be aggravated. It is made a point of honour to oppress the unhappy: the affront he has received has separated him from his equals, and rendered him unclean, as by a social excommunication. Thus the true evil, the ignominy with which he is covered, is much more the work of other men than of the first offender: he only points out the prey, it is they who tear it; he directs the punishment, they are the executioners.
Should a man, for example, be so far carried away as to spit in the face of another in public, what would be the mischief in itself? a drop of water, forgotten as soon as shed. But this drop of water may be converted into a corrosive poison, which shall torment him all his life. What produces this metamorphosis? Public opinion — the opinion which distributes at its own pleasure honour and shame. The cruel adversary well knew that this affront would be the forerunner and the symbol of a torrent of contempt.
A churl, a villain, may at his own will dishonour a virtuous man! He may fill with chagrin and regret the close of the most respectable career! How does he maintain this terrible power? He maintains it because an irresistible corruption has subjugated the first and the purest of the tribunals, that of the popular sanction. By a train of deplorable collusion, all the citizens individually depend for their honour upon the most wicked among them, and are collectively under their orders, to execute their decrees of proscription upon each one in particular.
Such is the process which might be instituted against public opinion, and these imputations would not be without foundation. Mere admirers of strength are often guilty of injustice towards the feeble: but when the effects of offences of this kind are examined to the bottom, it is perceived that they produce an evil independent of opinion, and that the sentiments of the public, with respect to affronts received and tolerated, are not in general so contrary to reason as is believed on the first glance: I say in general, because many cases would be found in which public opinion is unjustifiable.
In order to understand all the evil which results from these offences, they must be considered without reference to any remedies: it must be supposed that there are none. According to this supposition, these offences might be repeated at will; an unlimited career would thus be opened to insolence: the person insulted to-day might be insulted to-morrow and the day after, every day and every hour: each new affront would facilitate the next, and render more probable a succession of outrages of the same class. But in the idea of a corporal insult, is comprehended every act offensive to the person, which can be offered without causing a durable physical evil — every thing which produces disagreeable sensation, uneasiness, or sorrow. But an act which would be scarcely sensible, if unique, may produce by repetition a very painful degree of uneasiness, or even an intolerable torment. I have somewhere read, that from water distilled drop by drop, and falling from a certain height upon the shaven crown of the uncovered head, the most cruel tortures have been produced. “A constant dropping wears away stones,” says the proverb.* Thus, the individual obliged by his relative weakness to submit, at the pleasure of his persecutor, to similar vexations, and deprived, as we have supposed, of legal protection, would be reduced to the most miserable condition. Nothing more is required for establishing on the one part an absolute despotism, and on the other an entire slavery.
But he is not the slave of one, but of all who choose to make use of him. He is the puppet of the first comer, who, knowing his weakness, is tempted to abuse it. Like a Spartan Helot, dependent upon every body, always in fear and suffering — the object of general laughter, and of a contempt which is not even softened by compassion — he is, in a word, below those slaves, because their misfortune was forced upon them, and was the subject of complaint, whilst his degradation is connected with the baseness of his character.
These little vexations, these insults, have, even for another reason, a sort of pre-eminence in tyranny above more violent measures. Violent acts of anger often suffice to extinguish at once the enmity of the offender, and are frequently promptly followed by feelings of repentance, and thus present a termination to the suffering they produce: but a malignant and humiliating insult, far from exhausting the hatred which has produced it, seems on the contrary, to serve to nourish it; so that, it presents itself to the imagination as the avant courier of a train of injuries, so much the more alarming as it is undefined.
What has been said of corporal insults may be applied to threats, since even the first are of no importance except as threatening acts.
Offences by words have not altogether the same character. This is only a vague species of defamation, an employment of injurious terms, of which the signification is not determined, and which varies according to the situation of the persons.† What is shown by these injuries to the party injured, is, that he is believed worthy of the public contempt, without pointing out on what account. The probable evil which may result is the renewal of similar reproaches. It may also be feared, that a profession of contempt, publicly expressed, will lead others to join in it; it is indeed an invitation to which they willingly yield. The pride of censuring — of raising one’s self at the expense of the others — the influence of example — the disposition to believe all strong assertions give weight to these kinds of injuries. But it appears that they principally owe their weight to the neglect with which they are treated by the laws, and to the practice of duelling, a subsidiary remedy, by which the popular sanction has sought to supply the silence of the laws.
It is not astonishing that legislators, fearing to give too much importance to trifles, have left in a state of nearly universal neglect this part of security. The physical evil naturally enough taken as a measure of the importance of the crime, was nearly nothing, and the distant consequences escaped the inexperience of those who established the laws. The duel presented itself to supply this omission. This is not the place for inquiring into the origin, and examining the changes and whimsicalities apparent in this practice.‡ It is enough that the practice of duelling exists, and that, in fact, it applies itself as a remedy, and serves to restrain the enormity of the disorder, which, without it, would result from the negligence of the laws.
This practice once established, the following are its direct consequences:—
The first effect of duelling is to make the evil of the offence in a great measure to cease; that is to say, the shame which results from the insult. The offended person is no longer in that miserable condition in which his weakness exposes him to the outrages of the insolent, and the contempt of all. He is delivered from a condition of continual fear. The stain which the affront had imprinted on his honour is effaced; and if the challenge have immediately followed the insult, this stain will not even have made any impression: it will have had no time to fix itself; for the dishonour consists not in receiving an insult, but in submitting to it.
The second effect of duelling is to act as a punishment, and to oppose itself to the reproduction of like offences. Each new example is a promulgation of the penal laws of honour, and reminds every one that he cannot be guilty of such offensive proceedings, without exposing himself to the consequences of a private combat; that is to say, to the danger of undergoing, according to the event of the duel, either different degrees of afflictive punishments, or even the punishment of death. Hence, the courageous individual who, during the silence of the laws, exposes himself in order to punish an insult, secures the general security by exposing his own.
But, considered as a punishment, duelling is extremely defective.
1. It is not a method which can be employed by every body. There are numerous classes who cannot participate in the protection which it yields; as women, children, old persons, invalids, and those who, from defect in courage, cannot resolve to free themselves from the shame at the price of so great danger. On the other hand, by a peculiarity with respect to this point of honour, worthy of its feudal origin, the superior classes have not admitted those below them to the equality of duelling: the countryman, outraged by a gentleman, cannot obtain this satisfaction. The insult, in this case, may have less weighty effects, but it is yet an insult, and an evil without a remedy. In all these respects, duelling, considered as a punishment, is found inefficacious.
2. It is not always even a punishment, because opinion attaches to it a reward which may appear to many superior to all its dangers. This reward is the honour attached to this proof of courage; an honour which has often given greater attractions to duelling than its inconveniences have had power to overcome. There has been a period during which it formed part of the character of a gallant man to have fought at least once. A look, an inattention, a preference, a suspicion of rivalry — any thing was sufficient to men who only sought a pretence, and esteemed themselves a thousand times repaid for the perils they had run, by the applause they obtained from both sexes, with whom, from different reasons, bravery is equally in favour. In this respect, the punishment, amalgamated with the reward, loses its true penal character, and in another manner becomes inefficacious.
3. Duelling, considered as a punishment, is also defective from its excess; or, according to the proper expression, which will be explained elsewhere, it is too expensive a punishment. It is true, that it is often null, but it may be capital. Between these extremes of every thing and nothing, the individual is exposed to all the intermediate degrees — wounds, scars, mutilations, maiming, or loss of limbs. It is clear, that if a choice could be made with respect to satisfaction for offences of this kind, a preference would be given to a punishment less uncertain and less hazardous, which should not extend to the loss of life, nor be altogether null.
There is another peculiarity in this penal justice, which belongs only to duelling: costly to the aggressor, it is no less so to the party injured.* The offended party cannot avail himself of the right to punish the offender, without exposing himself to the punishment which he prepares for him; and even with a manifest disadvantage, for the chance is naturally in favour of him who has been able to choose his man before exposing himself. Hence this punishment is at the same time expensive and ill founded.
4. Another particular inconvenience of this duelling jurisprudence is, that it aggravates the evil of the offence itself, in all cases in which the revenge is not sought, unless the impossibility of seeking it is acknowledged. Has the offended party refused to have recourse to it, he is forced to convict himself of two capital faults — want of courage and want of honour; want of that virtue which protects society, and without which it could not maintain itself — and want of sensibility to the love of reputation, one of the grand foundations of morality. The offended party finds himself, therefore, under the laws of duelling, in a worse situation than if it did not exist; because if he refuse this sad remedy, it is converted into poison for him.
5. If, in certain cases, duelling, in quality of punishment, be not so inefficacious as it seems it ought to be, it is only because an innocent individual exposes himself to a punishment, which consequently is ill founded. Such are the cases of persons who, from some infirmity arising from sex, age, or health, cannot employ this means of defence. They have no resource, in this condition of individual weakness, except as chance gives them a protector, who has at the same time the will and the power to expose his own person, and combat in their stead. It is thus that a husband, a lover, a brother, may take upon themselves the injury done to a wife, a mistress, a sister; and in this case, if the duel becomes an efficacious protection, it is only by compromising the security of a third person, who finds himself charged with a quarrel for a matter to which he is a stranger, and with respect to which he could exercise no influence.
It is certain that, considering duelling as a branch of penal justice, it is an absurd and monstrous practice; but altogether absurd, and altogether monstrous as it is, it cannot be denied but that it accomplishes its principal object —it entirely effaces the stain which an insult imprints upon honour. Ordinary moralists, in condemning public opinion upon this point, only serve to confirm the fact. But whether, on account of this result, duelling be justifiable or not, is of no importance: the practice exists, and it has its cause. It is essential to the legislator to discover it: a phenomenon so interesting ought not to remain unknown to him.
The insult, we have said, causes him who is the object of it to be considered as degraded by his weakness and his cowardice. Always placed between an affront and a reproach, he can no longer march with an equal step with other men, and pretend to the same regards; but when, after this insult, I present myself to my adversary, and consent to risk in a combat my life against his, I rise, by this act, from the humiliation into which I had fallen. If I die, I am thereby at least set free from the public contempt, and from the insolent domination of my enemy. If he die, I am thereby free, and the guilty is punished. If he be only wounded, it is a sufficient lesson for him, and those who may be tempted to imitate him. Am I wounded myself, or are neither of us wounded? The combat is not useless: it always produces its effect. My enemy finds that he cannot reiterate his injuries, but at the risk of his life: I am not a passive being which can be outraged with impunity: my courage protects me nearly as much as the law would have done, if it had punished such offences with an afflictive or capital punishment.
But if, when this method of satisfaction is open to me, I patiently endure an insult, I render myself despicable in the eyes of the public, because, by such conduct, there is discovered, on my part, a fund of timidity; and timidity is one of the greatest imperfections in the character of a man. A coward has always been an object of contempt.
But ought this defect of courage to be classed among the vices? The opinion which despises cowardice, is it a hurtful or useful prejudice?
It will be doubted by few but that this opinion is conformed to the general interest, if it be considered that the first wish of every individual is for his own preservation. Courage is more or less a factitious quality — a social virtue, which owes to public esteem, more than to any other cause, its birth and its increase. A momentary ardour may be kindled by anger, but a tranquil and sustained courage is only formed and nourished under the happy influences of honour. The contempt which is felt for cowardice is not, then, a useless sentiment; the suffering which rebounds upon cowards, is not a punishment lavished in pure loss. The existence of the body politic depends upon the courage of the individuals who compose it. The external security of the state against its rivals, depends on the courage of its warriors: the internal security of the state against these warriors themselves, depends upon the courage spread among the mass of the other citizens. In a word, courage is the public soul, the tutelary genius, the sacred palladium, by which alone a people can secure itself from all the miseries of servitude, can retain the condition of manhood, and not fall below the brutes themselves. But the more courage shall be honoured, the greater will be the number of courageous men, the more will cowardice be despised, and the fewer cowards will there be.
This is not all: he who, being able to fight, endures an insult, not only discovers his timidity — he also rebels against the popular sanction, which has established the law, and shows himself, in an essential point, indifferent to reputation. But the popular sanction is the most active and faithful servant of the principle of utility, the most powerful and least dangerous ally of the political sanction. If, then, the laws of the popular sanction agree in general with the laws of utility, the more a man is sensible of reputation, the more his character is ready to conform itself to virtue — the less his sensibility in this respect, the more liable is he to the seduction of every vice.
What is the result of this discussion? In the state of neglect in which the laws, till the present time, have left the honour of the citizens, he who endures an insult, without having recourse to the satisfaction which public opinion prescribes to him, by thus acting exhibits himself as reduced to a state of humiliating dependence, and exposed to receive an indefinite series of affronts: he exhibits himself as devoid of the sentiment of courage, which produces general security, and, indeed, as devoid of sensibility to reputation — sensibility, protectrix of all the virtues, and safeguard against all the vices.
In examining the progress of public opinion with regard to insults, it appears to me, generally speaking, to be good and useful; and the successive changes which it has made in the practice of duels, have brought them more and more into conformity with the principle of utility. The public would do wrong, or, rather, its folly would be manifest, if, being the spectator of an insult, it immediately passed a decree of infamy against the party insulted. But this it does not do: this degree of infamy takes place only when the party insulted rebels against the laws of honour, and himself signs the decision of his degradation from manhood.
The public is in general* right in this system: the real wrong is on the side of the laws. First wrong: the allowing this anarchy to subsist with regard to insults, which has rendered a recurrence to this whimsical and mischievous method necessary. Second wrong: the having wished to oppose themselves to the practice of duelling — an imperfect, but the only remedy. Third wrong: the having opposed it, only by disproportioned and inefficacious means.
We shall begin with the methods of satisfaction for offended honour; the reasons which justify them will follow.
Offences against honour may be divided into three classes: Verbal insults — Corporal insults — Insulting threats. The punishment analogous to the offence ought to operate, at the same time, as a means of satisfaction for the party injured.
Reading of the sentence against the offender, by himself, in a loud voice.
The offender kneeling before the party injured.
Speech of humiliation which is prescribed to him.
Emblematical robes (with which he may be dressed in particular cases.)
Emblematical masks, with a snake’s head in cases of fraud — with a Magpie’s or a Parrot’s head in cases of temerity.
The witnesses of the insult, summoned to be witnesses of the reparation.
The individuals whose good opinion is of importance to the offender, summoned to the execution of the sentence.
Publicity of the judgment, by the choice of the place, concourse of spectators, the printing, the placarding, the distribution of the sentence.
Banishment, more or less long, whether from the presence of the party injured, or from that of his friends. — For an insult offered in a public place, as a market, theatre, or church, banishment from these places.
For a corporal insult, similar infliction, either by the party injured, or, at his choice, by the hand of the executioner.
For an insult offered to a woman, the man might be muffled up in the headdress of a woman, and the like insult might be inflicted on him by the hand of a woman.
Many of these methods are new, and some of them may appear singular: but new methods are necessary, since experience has shown the insufficiency of the old ones; whilst, as to their apparent singularity, it is by this that they are adapted to their end, and designed, by their analogy, to transfer to the insolent offender the contempt which he wished to fix upon the innocent. These methods are numerous and varied, that they may correspond with the number and variety of offences of this kind — that they may be adapted to the gravity of the cases, and furnish suitable reparations to the different social distinctions; for it is not proper to treat in the same manner an insult offered to a common person and to a magistrate, to an ecclesiastic and to a military man, to a young and to an old person. All this parade of speeches, attitudes, emblems, forms, solemn or grotesque, according to the difference of the cases; in a word, these public satisfactions converted into shows, would furnish to the injured party actual pleasures, and pleasures of remembrance, which would compensate for the mortification of the insult.
Observe, that the injury having been caused by some mechanical means, it is proper that similar mechanical means should be employed in the reparation, otherwise it will not strike the imagination in the same manner, and will be incomplete.
Has the offender employed a certain kind of injury for turning the public contempt upon his adversary? it is proper to employ an analogous kind of injury to turn this contempt upon himself. The seat of the evil is in opinion: it is in opinion that the remedy must be found. The wounds of this lance of Telepheus can only be cured by the touch of the same lance: it is an emblem of the operations of justice in matters of honour. Has the mischief arisen from an affront? it is only by an affront that it can be repaired.
Let us trace the effect of a satisfaction of this kind. The party injured is reduced to a state of intolerable inferiority before his aggressor; can no longer meet him with security in the same place, and sees in the future only a prospect of repeated injuries; but immediately after the legal reparation, he regains what he had lost, he walks with security, erect, and acquires even a positive superiority over his adversary. How is this change produced? It is because he is no longer seen as a feeble and miserable being, who may be trampled under foot: the power of the magistrate is become his. No one will be tempted to repeat the insult of which the punishment has had so much eclât. His oppressor, who appeared for a moment to overtop him, has fallen from his car of triumph; the punishment he has undergone in the presence of so many witnesses, proves that he is not more to be feared than another man; and there remains nothing of his violence but the remembrance of its chastisement. What can the offended party desire more? If he had the strength of a gladiator, where would be the advantage?
If legislators had always properly applied this system of satisfactions, there would have been no duels, which have only been, and still are, a supplement to the insufficiency of the laws. In proportion as this void in legislation is filled up by measures suited to the protection of honour, the use of duels will diminish; and they will cease entirely, when these honorary satisfactions agree exactly with opinion, and are faithfully administered. In former times, duels have been employed as a means of decision in a great number of cases, in which it would be most highly ridiculous now to employ them. A lawyer, who should send a challenge to his antagonist in order to prove a title, or establish a right, would be esteemed a fool: in the twelfth century, this method would have been esteemed valid. Whence arises this change? From the same cause which has by degrees been operating in jurisprudence. Justice, by becoming enlightened, and establishing laws and forms of procedure, has offered methods of redress preferable to that of duelling.* The same cause will produce the same effects. So soon as the law shall offer a remedy for offences against honour, there will be no temptation to have recourse to an equivocal and dangerous proceeding. Does any one love suffering and death? Certainly not. This sentiment is equally a stranger to the heart of the coward and of the hero. It is the silence of the laws — it is the neglect of justice, which obliges the wise man to protect himself by this sad, but sole resource.
In order that honorary satisfaction may have all the extent and force of which it is susceptible, the definition of offences against honour should have sufficient latitude to embrace them all. It should follow public opinion step by step — should be its faithful interpreter; every thing which it regards as an attack upon honour should be regarded as such. A word, a gesture, a look, is either of them regarded by the public as an insult. This word, this gesture, this look, should suffice, in justice, to constitute it an offence. The intention to injure constitutes the injury. Every thing directed toward a man, to express or to attract contempt towards him, is an insult, and ought to have its reparation.
It is said that these insulting signs, doubtful in their nature, fugitive, and often imaginary, would be too difficult to be described, and that some suspicious characters, seeing an insult where there was none, would cause the innocent to undergo undeserved punishments.
This danger is null, because the line of demarcation is easily traced between real and imaginary injury. It is sufficient, on the requisition of the complainant, to interrogate the defendant respecting his intention, “Did you design, by what you have said or done, to mark such an one with contempt?” If he deny it, his answer, true or false, is sufficient to clear the honour of him who has been, or believes himself to have been, offended. For, has the injury itself been only slightly equivocal? to deny it, is to have recourse to a lie, to acknowledge his fault, to disclose his fear and his weakness — in a word, it is to perform an act of inferiority, and to humiliate himself before his adversary.
In forming the catalogue of offences which possess the character of insults, there are necessary exceptions: care must be taken not to include in the decree of proscription useful acts of public censure — the exercise of the power of the popular sanction. The authority necessary for correction and reprimand must be reserved to friends and superiors. The freedom of history and of criticism must be secured.
This subject does not demand many particular rules — every species of satisfaction naturally bringing in its train a punishment to the defendant, a pleasure of vengeance for the party injured.
This pleasure is a gain: it recals the riddle of Samson; it is the sweet which comes out of the strong; it is the honey gathered from the carcase of the lion. Produced without expense, net result of an operation necessary on other accounts, it is an enjoyment to be cultivated as well as any other; for the pleasure of vengeance, considered abstractedly, is, like every other pleasure, only good in itself. It is innocent so long as it is confined within the limits of the laws; it becomes criminal at the moment it breaks them. It is not vengeance, which ought to be regarded as the most malignant and most dangerous passion of the human heart; it is antipathy, it is intolerance: these are the enmities of pride, of prejudice, of religion, and of politics. In a word, that enmity is not dangerous which has foundation, but that which is without a legitimate cause.
Useful to the individual, this motive is also useful to the public, or, to speak more correctly, necessary. It is this vindictive satisfaction which often unties the tongue of the witnesses; it is this which generally animates the breast of the accuser, and engages him in the service of justice, notwithstanding the trouble, the expenses, the enmities, to which it exposes him; it is this which overcomes the public pity in the punishment of the guilty. Take away this spring, the machinery of the laws will no longer move, or at least the tribunals will only obtain services for money — a means which is not only burthensome to society, but also exposed to very strong objections.
Some commonplace moralists, always the dupes of words, cannot understand this truth. The desire of vengeance is odious; all satisfaction drawn from this source is vicious; forgiveness of injuries is the noblest of virtues. Doubtless, implacable characters, whom no satisfaction can soften, are hateful, and ought to be so. The forgiveness of injuries is a virtue necessary to humanity; but it is only a virtue when justice has done its work, when it has furnished or refused a satisfaction. Before this, to forgive injuries is to invite their perpetration — is to be, not the friend, but the enemy of society. What could wickedness desire more, than an arrangement by which offences should be always followed by pardon?
What, then, ought to be done, with the intention of yielding this vindictive satisfaction? It is proper to do every thing which justice requires to answer the ends of the other satisfactions, and for the punishment of the offence: nothing more is required. The least excess set apart for this object would be an evil in pure waste. Inflict the punishment which is deserved, and the injured party may draw from it the degree of enjoyment which his situation yields, and of which his nature is susceptible.
However, without adding any thing to the gravity of the punishment on this particular account, certain modifications may be given to it, in accordance with what may be supposed the feelings of the injured party, regard being had to his situation and the species of offence. Examples of this kind have been exhibited in the preceding chapter; others will be shown in connexion with the choice of punishments.
In the most common case, it is upon the author of the evil that the expense of satisfaction ought to be fixed. Why? because, when fixed in this manner, it tends, in quality of punishment, to prevent the evil, by diminishing the frequency of the offence: fixed upon another individual, it would not have this effect.
Does this reason no longer exist with regard to the first respondent? does it apply to another in default of the first? The law of responsibility ought to be modified in consequence; or, in other terms, a third person ought to be called upon to pay, instead of the author of the mischief, when he cannot furnish the satisfaction, and when the obligation imposed upon this third party tends to prevent the offence.
This may happen in the following cases:—
|1.||Responsibility of a master for his servant.|
|2.||Responsibility of a guardian for his ward.|
|3.||Responsibility of a father for his children.|
|4.||Responsibility of a mother for her children, in quality of tutor.|
|5.||Responsibility of a husband for his wife.|
|6.||Responsibility of an innocent person, who profits by the offence.|
This responsibility is founded upon two reasons; the one of security, the other of equality. The obligation imposed upon the master acts as a punishment, and diminishes the chance of similar misfortunes. He is interested in knowing the character and watching over the conduct of those for whom he is answerable. The law makes him an inspector of police, a domestic magistrate, by rendering him answerable for their imprudence.
Besides, the condition of master almost necessarily supposes a certain fortune; the circumstance of being the party injured, the object of the misfortune, supposes no such thing: when there is an inevitable evil to be borne by one of two persons, it is most desirable that its weight should be thrown upon him who is best able to bear it.
This responsibility may have certain inconveniences; but if it did not exist, the inconveniences would be still greater. Did a master wish to commit waste on the lands of his neighbour — to expose him to some accident — to wreak his vengeance on him — to make him live in continual uneasiness, he need only choose some vicious servants, whom he might instigate to serve his passions and his enmities, without commanding any thing, without being their accomplice, or without it being possible to find proofs of it; always ready to urge them on, or to disavow them, he might make them the instruments of his designs, and run no risk himself.* By showing them a little more than ordinary confidence — by taking advantage of their attachment and devotedness, of their servile vanity, there is nothing which he may not obtain by general instigations, without exposing himself to the danger of directing any thing in particular; and he would rejoice with impunity over the evil which he had done by the hand of others. “Unhappy that I am!” cried Henry the Second, one day, vexed with the haughtiness of an insolent prelate: “what! so many servants who boast of their zeal, and not one who will avenge me?” The effect of this imprudent or criminal apostrophe was the murder of the archbishop.
But that which essentially diminishes for the master the danger of his responsibility, is the responsibility of the servant. The real author of the mischief, according to circumstances, ought to be the first to bear its disagreeable consequences, as far as he is able, that the negligent or vicious servant may not be able coolly to say, when doing mischief, “It is my master’s affair, and not mine.”
Besides, the responsibility of the master is not always the same: it ought to vary according to many circumstances, which ought to be examined with attention.
The first thing to be considered is the degree of connexion which subsists between the master and the servant. Is he a day-labourer, or a man engaged by the year? — a workman out of doors, or one dwelling in the house? — an apprentice or a slave? It is clear, that the stronger the connexion is, the more his responsibility ought to be increased. An agent is less dependent upon his principal than a lackey upon his master.
The second thing to be considered is the nature of the work on which the servant is employed. The presumptions against the master are less strong, with regard to work in which his interest would be liable to suffer from the fault of his agents, and they would be stronger in the contrary case. In the first case, the master has already a sufficient motive for exercising his superintendence: in the second, he cannot have this motive; the law must supply it.
3. The responsibility of the master is much greater, if the mischief have happened on account of his service, or during such service; because it is to be presumed that he may have directed it, that he ought to have foreseen the event, and that he might have watched over his servants at this time, more easily than during the hours of their liberty.
There is one case which seems exceedingly to reduce, even if it does not altogether destroy, the strongest reason for responsibility, when the mischief has for its cause a serious offence, accompanied consequently by a proportional punishment. If my servant, for example, having a personal quarrel with my neighbour, set fire to his granaries, ought I to be answerable for a damage that I could not hinder? If the madman do not dread being hanged, will he dread being driven from my service?
Such are the presumptions which serve as a foundation for responsibility: presumption of negligence on the part of the master, presumption of superior wealth on the part of the master above the party injured, &c.; but it ought not to be forgotten, that these presumptions are nothing, when they are contradicted by facts. An accident, for example, has happened by the overturning of a carriage. Nothing is known of the party injured. It is presumed that he is in a situation to receive an indemnity from its owner, who, it is presumed, is in a condition to bear the loss. But what becomes of this presumption, when it is known that this owner is a poor farmer, and the party injured a wealthy noble? that the first would be ruined if he had to pay the indemnity, which is of little consequence to the other. Hence presumptions ought to guide, but they ought never to enslave. The legislator ought to consult them in establishing general rules, but he ought to allow the judge to modify their application according to individual cases.
The general rule establishes the responsibility of the master; but the judge, according to the nature of the circumstances, should change this arrangement, and cause the weight of the loss to fall upon the true author of the evil.
By leaving to the judge the greatest latitude with respect to this reparation, the greatest abuse which can result will be the occasional introduction of the inconvenience which the general rule would necessarily produce, on whichever side it may be fixed. If the judge favour the author of the mischief on one occasion, and the master on another, he who is improperly treated by the free choice of the judge, is not worse off than if he had been thus improperly treated by the inflexible choice of the law.
In our systems of jurisprudence, these modifications have not been observed. The burden of the entire loss is thrown sometimes upon the servant, sometimes upon the master; from which it results, that sometimes security, and at other times equality, have been neglected, whilst the one or the other ought to have been preferred, according to the nature of the case.
The ward is not among the number of the goods of the guardian: he is, on the contrary, among the number of his charges. Has the pupil sufficient fortune to furnish the satisfaction? it is not necessary that another should pay it for him. Has he not the means? the guardianship is in this case too weighty a burthen to be surcharged with factitious responsibility. All that ought to be done is to attach to the negligence of the guardian, proved or even presumed, a fine, larger or smaller according to the nature of the proofs, but which ought not to exceed the expense of satisfaction to the party injured.
If a master ought to be responsible for the faults of his servants, much more ought a father to be so for the faults of his children. Is it possible, and ought the master to watch over those who depend upon him? It is a much more pressing duty upon a father, and much more easy to be fulfilled: he exercises over them, not only the authority of a domestic magistrate, but he possesses all the ascendancy of affection: he is not only the guardian of their physical existence; he may command all the sentiments of their souls. The master may not have been able to restrain or to watch a servant who announces dangerous dispositions; but the father, who might have fashioned at his own will the character and the habits of his children, may be considered the author of all the dispositions which they manifest. Are they depraved? it is almost always the effect of his negligence or of his vices. He ought, therefore, to bear the consequences of an evil which he ought to have prevented.
If it be necessary to add a new reason after so strong a one, it may be said that the children, with the exception of the rights which belong to them as sentient beings, are part of a man’s property, and ought to be considered as such. He who enjoys the advantages of the possession, ought to bear its inconveniences: the good much more than compensates for the evil. It would be very singular, if the loss or destruction occasioned by children should be borne by an individual who knows nothing of them, but their malice or their imprudence, rather than by him who finds in them the greatest source of his happiness, and may indemnify himself by a thousand hopes for the actual cares of their education.*
But this responsibility has a natural limit. The majority of a son, or the marriage of a daughter, putting an end to the authority of the father, causes the responsibility which the law throws upon a father to cease. He ought no longer to bear the punishment of an action which he has no longer the power to hinder.
To perpetuate during his whole life the responsibility of a father, as the author of the vicious dispositions of his children, would be cruel and unjust. For, in the first place, it is not true that all the vices of an adult may be attributed to the defects of his education: different causes of corruption, after the period of independence, may triumph over the most virtuous education; and besides this, the condition of a father is sufficiently unhappy, when the evil dispositions of a child, arrived at the age of manhood, have broken out into crime. After all that he has already suffered in the bosom of his family, the pain which he experiences from the misconduct or dishonour of his child, is a species of punishment which nature itself inflicts upon him, and which it is not necessary that the law should aggravate. This would be to spread poison over his wounds, without hope either of repairing the past, or guarding against the future. Those who would justify this barbarous jurisprudence by the example of the Chinese, have not recollected that the authority of the father in that country ceases only with his life, and that it is just that his responsibility should continue as long as his power.
The obligation of the mother, in similar cases, is naturally regulated by the rights she possesses.
Is the father still alive? the responsibility of the mother, as well as her power, remain absorbed in that of her husband. Is he deceased? as she takes in hand the reins of domestic government, she becomes responsible for those who are subject to her empire.
This case is as simple as the preceding. The obligation of the husband depends on his rights; the administration of their goods belongs to him alone: unless the husband were responsible, the party injured would be without remedy.
As to the rest, the order generally established is supposed here: that order so necessary to the peace of families, the education of children, and the maintenance of manners; that order, so ancient and so universal, which places the wife under the authority of the husband. As he is her head and guardian, he answers for her before the law: he is even charged with a more delicate responsibility before the tribunal of public opinion; but this observation does not belong to our present subject.
It often happens that a person, without having had any share in an offence, derives from it a sensible profit. Is it not proper that this person should be called upon to indemnify the party injured, if the guilty party cannot be found, or if he be not able to furnish an indemnity?
This proceeding would be conformable to the principles we have laid down — in the first place, with regard to security; for he may have been an accomplice without its having been proved: also with regard to equality; for it is more desirable that one person should be simply deprived of a gain, rather than that another should suffer an equal loss.
A few examples will suffice to explain this subject.
By piercing a dike, the land of one party has been deprived of the benefit of the water which he formerly possessed, and it has been given to another. He who comes into the enjoyment of this unexpected advantage, owes at least a part of his gain to him who has suffered loss.
A tenant in possession, whose estate passes to a stranger by entail, has been killed, and has left a family in want. The tenant in tail, who thus comes into a premature enjoyment of the estate, ought to be accountable for a certain satisfaction to the family of the deceased.
A benefice has become vacant, because its possessor has been killed, it matters not how. If he have left a wife and children in poverty, the successor owes them an indemnity proportioned to their necessity, and the enjoyment they had anticipated.*
The best source from which satisfaction can be taken, is the property of the delinquent, because it fulfils, as we have seen, with a superior degree of suitableness, the functions of a punishment.
But if the delinquent have no fortune, ought the injured individual to remain without satisfaction? No: for the reasons which we have already set down, satisfaction is almost as necessary as punishment. It ought to be made at the expense of the public treasure, because it is an object of public benefit; the security of all is concerned. The obligation upon the public treasure to provide satisfaction, is founded upon a reason which has the clearness of an axiom. A pecuniary burthen, divided among the whole number of individuals, is nothing for each one in comparison with what it would be for each one or a small number.
Is insurance useful in commercial enterprises? it would be no less so in the great social enterprise, where the associates find themselves united by a train of chances, without knowing each other, without choice, without the power of avoiding it, or guarding themselves by their prudence against the multitude of snares which they may mutually prepare. Calamities which arise from crimes, are not less real evils than those which arise from natural causes. If the sleep of the master be sweeter in a house insured against fire, it would be still more so if he were insured against theft. Abstraction made of its abuses, too great extent could hardly be given to a method so perfectible and so ingenious, which renders real losses so light, and which gives so much security against eventual evils.
However, all insurances are exposed to great abuses from fraud or negligence: fraud on the part of those who, in order to obtain unlawful indemnities, feign or exaggerate their losses; negligence, whether on the part of the assurers, who do not take all necessary precautions, or on the part of the assured, who use less vigilance in guarding against losses which are not to be borne by them.
In a system of satisfactions at the expense of the public treasure, there is reason to fear —
1. A secret connivance between the party pretending to be hurt, and the pretended author of the offence, in order to obtain an undue indemnity.
2. Too great security on the part of individuals, who, having no longer to fear the same consequences of crimes, would not make the same efforts to prevent them.
This second danger is little to be dreaded. No one would neglect his actual possessions, a good certain and present, with the hope of recovering, in case of loss, only an equivalent for the thing lost, and even at the most an equivalent. To this let it be added, that this recovery would not be obtained without care and expense; that there must be a transient privation; that he must bear the burthen of prosecution, and act the always disagreeable part of an accuser; and that, after all, under the best system of procedure, success is still doubtful.
There would remain, therefore, sufficient motives for each individual to watch his property, and not to encourage offences by his negligence.
On the side of fraud, the danger is much greater. It cannot be prevented but by detailed precautions, which will be explained elsewhere. As examples, it will be sufficient to point out two opposite cases; one in which the utility of the remedy exceeds the danger of the abuse, the other in which the danger of the abuse exceeds the utility of the remedy.
When the damage is occasioned by an offence, the punishment of which is weighty, and its author is judicially convicted of the crime, it seems that fraud is very difficult. All that the impostor, who pretends to have been hurt, can do to procure an accomplice, is to give him a part of the profits of the fraud: but unless the clearest principles of proportion between crimes and punishments have been neglected, the punishment which the accomplice will have to undergo, would be more than an equivalent to the total profit of the fraud.
Observe, the offender ought to be convicted before the satisfaction is awarded: without this precaution, the public treasure would be pillaged. Nothing would be more common than the tale of imaginary thefts; of pretended robberies committed in a clandestine manner, or during the darkness of the night, or by unknown persons who have escaped. But when it is necessary to have apprehended the guilty, complicity is not easy. The part which it would be necessary to act, is not one of those which is easily performed, in as much as, besides the certainty of punishment for the individual charged with the pretended offence, there would also be a particular punishment in case the imposture should be detected — a punishment to be shared by the two accomplices; and if it be considered how difficult it is to invent a plausible story of an offence altogether imaginary, it may be believed that such frauds would be very rare, if they ever happened.
The danger most to be apprehended is the exaggeration of a loss resulting from a real offence. But it is necessary that the offence should be susceptible of this species of falsehood, and this is a case sufficiently rare.
It appears, therefore, that it may be laid down as a maxim, that in all cases in which the punishment of an offence is weighty, it need not be feared that an imaginary offender will be willing to charge himself with an offence for a doubtful profit.
But, for the opposite reason, when the mischief results from an offence of which the punishment is slight or none, the danger of abuse would be at its height if the public treasure were responsible for it. The insolvability of a debtor is an example. Where is the beggar who would not be trusted, if the public were security for him? what treasury would be able to pay every creditor whose debtors did not actually pay them? and how many false debts would it not be possible easily to suppose?
This indemnification would not only be abusive: it is unnecessary; since, in the transactions of commerce, the risk of loss enters into the price of merchandise, or the interest of money: if the merchant were sure never to lose, he would sell at a lower price; hence, to seek from the public an indemnification for a loss which had been compensated for beforehand, would be to seek to be paid twice over.*
There are other cases in which satisfaction ought to be made at the public expense.
1. Cases of physical calamity, such as inundations, fires, &c. Aids granted by the state in such cases, are not only founded upon the principle, that the weight of the evil, divided among all, becomes more light; they rest also upon this other, that the state, as protector of the national wealth, is interested in preventing the deterioration of the national domain, and ought to re-establish the means of re-production in those parts which have suffered. Such were what have been called the liberalities of Frederick the Great to those provinces which had been desolated by certain calamities: they were acts of prudence and preservation.
2. Losses and misfortunes, the consequences of hostilities. Those who have been exposed to the invasions of the enemy have a right so much the more particular to a public indemnification, as they may be considered as having sustained the attack which threatened all parties, as being, by their situation, the point the most exposed for the common defence.
3. Evils resulting from unblameable errors of the ministers of justice. An error in justice is already, by itself, a subject of grief; but that this error, once known, should not be repaired by proportional indemnification, is an overturning of the social order. Ought not the public to follow the rules of equity which are imposed on individuals? is it not shameful that it should employ its power in severely exacting what is due to itself, and should refuse to restore what it owes? But this obligation is so evident, that it becomes obscure by endeavouring to prove it.
4. Responsibility of a community for an offence of violence, committed in a public place in its territory. It is not properly the public treasure which ought to be employed in this case; it is the funds of the district or province, which ought to be taxed for the reparation of a negligence of police.
In case of competition, the interests of an individual ought to have place before those of the revenue: what is due to the injured party, on account of satisfaction, ought to be paid in preference to what is due to the public treasure on account of fine. Ordinary jurisprudence does not decide thus, but it is thus that reason decides. The loss suffered by an individual is an evil felt; the profit to the revenue is a good not felt by any person. What is paid by the offender as a fine, is a punishment, and nothing more; what he pays as a satisfaction is also a punishment, and a punishment even more than ordinarily strong, besides this, it is a satisfaction for the party injured; that is to say, a good. When I pay to the revenue, a creature of reason with whom I have no quarrel, I feel only the same regret for the loss as I should do had I dropt the sum into a well: when I pay it to my adversary, when I am thus obliged to confer a benefit on him whom I wished to injure, there is connected with the payment a degree of humiliation, which gives to the punishment thus inflicted the most desirable character.
† See Introduction to Morals and Legislation.
* The following work is edited from the Traités de Legislation published by Dumont, and the original MSS. of Bentham.
* Of this kind are immoveables in general; family relics, portraits, works executed by esteemed individuals — domestic animals, antiquities, curiosities, pictures, manuscripts, instruments of music; in fact, all that is unique, or appears to be so.
† If it refer to a thing or an animal which reproduces, a judgment may be formed in the same manner, as to the side on which the superiority of affection will be found with respect to the fruits and the products; as the wine of a particular vine, the foal of a favourite horse, &c. However, the pretensions of the anterior proprietor have not so much force in this case, as in the other. The last possessor is only the second proprietor of the animal or thing which produces, but he is first proprietor of the productions themselves.
‡ It matters not whether the acquirer be honest or dishonest. It is not for him, but for you the true proprietor, that an interest is given to him in taking care of the estate or thing which has fallen into his possession. That he should derive a profit from all the good he does to it, nothing can be more wise. It would be possible to establish a punishment against the omissions which should cause it to perish; but its maintenance will be better secured by offering a reward, or rather an indemnification for, care in its preservation. There are many cases in which it would be difficult to prove the offence of negligence; and besides, when reward finds its natural place, and does not produce danger, reward and punishment together are worth more than punishment alone.
∥ I lose a horse worth thirty pounds; you buy it of a man who sells it to you as his own for ten pounds. In virtue of the above rule, you would be obliged to give it up to me, on receiving from me what you gave for it. I am the loser: It remains for me to recover from the seller my ten pounds, and on his default I ought to have relief from the public treasure. But if, instead of adjudging the horse to me, it had been adjudged to you (which might be reasonable under certain circumstances,) then you ought to be obliged to pay me his full value, otherwise I am made to suffer a loss, in order to procure a gain for you. But in this case, you have your remedy against the property of the offender, or, on his default, against the public treasure.
* Some years ago a Canary bird gave rise to a lawsuit before one of the Parliaments in France. A journalist, who has given an account of it, amused himself at the expense of both parties, and regarded the whole affair as ridiculous. I am not of his opinion. It is imagination which gives their value to the objects we esteem most precious. In laws made solely in accordance with the universal opinions of men, can too marked an attention be made to the preservation of every thing which constitutes their happiness? Ought this sensibility, which attaches us to the beings which we have reared, which we have become accustomed to, and whose whole affections are fixed on us, to be forgotten? This suit, so frivolous in the eyes of the journalist, was only too serious, since one of the parties sacrificed to it, not only his money, but his probity and his honour. An object esteemed at such a price cannot be called a bagatelle.
* In order to form an idea of the torment which results from the accumulation and duration of trifling vexations, almost imperceptible when alone, it is only necessary to recal the prolonged ticklings, and the persecutions so common in the plays and the quarrels of childhood. At this age, the least quarrels lead to acts of violence: the idea of decorum is not yet sufficiently strong to repress them; but the fickleness and the pity natural to early youth, prevents their being pushed to a dangerous point, and reflection does not give them that bitterness which a mixture of accessory ideas imparts to them in the maturity of life.
† To say that any one is a rascal, is not to reproach him with any one action in particular, but it is to accuse him in general of such conduct as brings a man to the gallows. These offensive words ought to be carefully distinguished from special defamation, from that which has a particular object. This may be refuted — it allows of attestative satisfaction. These oftensive words, being vague, do not admit of being so dealt with.
‡ Many circumstances concurred in the age of chivalry to the establishment of duelling. Tournaments, single combats fashioned by glory, designed as amusements, led naturally to challenges of honour. The idea of a particular Providence, derived from Christianity, led to the interrogation of Divine Justice in this manner, and to the reference of quarrels to its decision.
Nevertheless, long before the era of Christianity, duelling was established in Spain as a mode of trial. The following passage from Livy leaves no doubt upon the question:—“Quidam quas disputando controversias finire nequierant aut noluerant, pacto inter se, ut victorem res sequeretur ferro decreverunt. Quum verbis disceptare Scipio vellet, ac sedare iras: negatum id ambo dicere communibus cognatis; nec alium deorum hominumve quam Martem se judicem, habitu[Editor: illegible character]os esse.” Book xxviii. sec. 21.
* The Japanese surpass in this respect the men of honour of modern Europe. The European, for the chance of killing his adversary, gives him a reciprocal and equal chance. The Japanese, for the chance of leading him to rip up his own belly, begins by setting him the example.
* Does the public know the reason which it has for its opinion? Is it guided by the principle of utility, or by a mechanical imitation and an ill developed instinct? Does he who fights, act from an enlightened view of his own and the general interest? These are questions more curious than useful. The following observation may serve to resolve them. It is one thing to be guided by the presence of certain motives, it is another thing to perceive their influence. There is no action or judgment without motive, no effect without a cause. But in order to understand the influence which a motive has over us, it is necessary to know how to direct the mind upon itself, and to anatomize its thoughts: it is necessary to divide the mind as it were into two parts, of which the one is to be occupied in observing the other; a difficult operation, of which, from want of exercise, few persons are capable.
* It was in 1305 that Phillippe le Bel abolished duelling in civil cases. He had rendered the parliament sedentary at Paris, and done much for the establishment of judicial order.
* There are many methods of doing evil by means of another, without any trace of complicity. I have heard it said by a French counsellor, that when the parliaments wished to save a guilty person, they designedly chose some unskilful person as a reporter, hoping that his unskilfulness would give birth to some means of nullity. This was truly employing ingenuity in the service of prevarication.
* It was a maxim of the Roman law —Qui sentit commodum sentire debet et onus.
* It is a common maxim —Neminem oportet alterius incommodo [Editor: illegible word] fieri.
* A voluntary subscription, a bank of insurance destined to reimburse losing creditors, might be advantageous, without its being proper for the administrators of the public funds to institute such an establishment. The public funds being the product of constraint, ought to be managed with the greatest economy.
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