Of Prosecution and Prescription.
The proofs of the crime being obtained, and the certainty
of it determined, it is necessary to allow the criminal time and means for his
justification; but a time so short as not to diminish that promptitude of
punishment, which, as we have shewn, is one of the most powerful means of
preventing crimes. A mistaken humanity may object to the shortness of the time,
but the force of the objection will vanish if we consider that the danger of
the innocent increases with the defects of the legislation.
The time for inquiry and for justification should be fixed
by the laws, and not by the judge, who, in that case, would become legislator.
With regard to atrocious crimes, which are long remembered, when they are once
proved, if the criminal have fled, no time should be allowed; but in less
considerable and more obscure crimes, a time should be fixed, after which the
delinquent should be no longer uncertain of his fate: for, in the latter case,
the length of time, in which the crime is almost forgotten, prevents the
example of impunity, and allows the criminal to amend, and become a better
member of society.
General principles will here be sufficient, it being
impossible to fix precisely the limits of time for any given legislation, or
for any society in any particular circumstance. I shall only add, that, in a
nation willing to prove the utility of moderate punishment, laws which,
according to the nature of the crime, increase or diminish the time of inquiry
and justification, considering the imprisonment or the voluntary exile of the
criminal as a part of the punishment, will form an easy division of a small
number of mild punishments for a great number of crimes.
But it must be observed, the time for inquiry and
justification should not increase in direct proportion to the atrociousness of
crimes; for the probability of such crimes having been committed is inversely
as their atrociousness. Therefore the time for inquiring ought, in some cases,
to be diminished, and that for justification increased, et vice versa.
This may appear to contradict what I have said above, namely, that equal
punishments may be decreed by unequal crimes, by considering the time allowed
the criminal or the prison as a punishment.
In order to explain this idea, I shall divide crimes into
two classes. The first comprehends homicide, and all greater crimes; the second
crimes of an inferior degree. This distinction is founded in human nature. The
preservation of life is a natural right; the preservation of property is a
right of society. The motives that induce men to shake off the natural
sentiment of compassion, which must be destroyed before great crimes can be
committed, are much less in number than those by which, from the natural desire
of being happy, they are instigated to violate a right which is not founded in
the heart of man, but is the work of society. The different degrees of
probability in these two classes, require that they should be regulated on
different principles. In the greatest crimes, as they are less frequent, and
the probability of the innocence of the accused being greater, the time allowed
him for his justification should be greater, and the time of inquiry less. For
by hastening the definitive sentence, the flattering hopes of impunity are
destroyed, which are more dangerous as the crime is more atrocious. On the
contrary, in crimes of less importance, the probability of the innocence being
less, the time of inquiry should be greater, and that of justification less, as
impunity is not so dangerous.
But this division of crimes into two classes should not be
admitted, if the consequences of impunity were in proportion to the probability
of the crime. It should be considered, that a person accused, whose guilt or
innocence is not determined for want of proofs, may be again imprisoned for the
same crime, and be subject to a new trial, if fresh evidence arises within the
This is, in my opinion, the best method of providing at
the same time for the security and liberty of the subject, without favouring
one at the expense of the other; which may easily happen, since both these
blessings, the unalienable and equal patrimony of every citizen, are liable to
be invaded, the one by open or disguised despotism, and the other by tumultuous
and popular anarchy.
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