Return to Contents

Rights in Civil Society - Section Two

Chapter 4 (Part 2)

Description of jural activity in civil society as this activity appears in its different powers and activities

2489. Individual Right receives certain modifications from the Right of civil society in so far as individuals who unite in civil society oblige themselves spontaneously to sustain the burdens necessary to attain the end of civil society. In the same way, civil-social Right receives certain modifications when people enter theocratic society. By the very fact of entering (and they have an inalienable right to this) they will to accept the obligations springing from its end. These obligations necessarily limit and temper their individual and civil rights.

2490. Indeed, the end of theocratic society is the highest of all ends (RGC, 661, 767-797) and as such requires that other ends, even the civil end, become means, not obstacles, to itself. They would be obstacles if, for example, the end of civil society were considered in isolation from and independent of the end of theocratic society. This is a common mistake nowadays when people affirm that civil law should be godless.(399)

2491. We shall speak, however, only about perfect theocratic society (RGC, 671-712). In what kind and number of ways does the Catholic Church emend civil legislation?

First, it does not accept anything in human law which it finds contrary to divine revelation, to justice and morality, and generally to its own end. However, because the Church is the City of peace, as it is called in Scripture, it imposes on its members a peaceful obligation to reject evil elements. In other words, the obligation lacks forceful sanctions, although its observance is a condition of membership and of participation in the Church's goods. Moral-religious obligation in contrast with the enactments of the City is the means used by the Catholic Church to emend whatever is unjust, wicked and impious in civil law.

2492. It must also be noted that the Church has its own way of promoting this reformation. I like to call this a `creative' way because it resembles that used by the Almighty in the reformation and regeneration of mankind. The Almighty regenerates human beings by infusing them with a new principle of supernatural life.(400) This principle, infused in the soul, eliminates the sinful principle by raising up the human person and rendering him immune from the sinful principle. So the Church, unable directly to abrogate or correct pagan civil laws containing injustice, sets up against them its own new legislation. It does not even mention pagan laws. This is how it drew Christians away from the extreme injustice present in pagan legislation.

Two legislations, theocratic and civil, thus confronted one another; the former was destined to conquer the latter. St. Jerome, describing this double legislation, says:

He gives an example of these opposing laws:

When Christian youth, obedient to the Church, brought its influence to bear on civil society, it emended civil legislation in accord with the contrary model of Christian legislation.

2493. We should also notice that civil laws which err against justice, morality and religion, are for the most part facultative and permissive. The Church normally attends to their reform simply by forbidding her children whatever is permitted but not commanded by these laws. One example of this are the laws which permitted concubinage for a year before valid matrimony. These were corrected by the Church in 1286-1288. Another example are the inhuman laws depriving children born of incestuous marriages of their right to nourishment.(402) These, too, were proscribed by the Church.(403)

We need to reflect, however, that even a simple facultative civil law, if founded on injustice, normally induces and protects unjust facts. It is facultative only when the interested parties agree not to use it. If one of them wishes to hold to the law for his own advantage, he is protected and upheld by civil authority. We have an example in any civil law which requires many formalities for the validity of a will (RI, 1416). It is certain that public power puts no obstacle to the validity of a will if all the interested parties are happy to consider it valid despite its lack of legal form. Validity according to rational law is sufficient.(404) Public power merely places no obstacle to this; the law is simply facultative. The picture changes if one of the parties wants to invalidate the will. Civil authority upholds this party and obliges the other to submit to the law. The law itself then becomes obligatory or, better, penal. The same can be said about Roman laws which declared invalid any marriage contracted by a child of a family without the consent of the parents,(405) or marriage between a step-father and the widow of his step-son.(406) These marriages were declared valid by the Church.(407) Civil laws certainly do not oblige the contracting parties to separate if neither of them complains. In this sense, the law is facultative. If, however, one of the parties does complain, separation is enforced by public authority.

2494. Finally, the Church declared that certain punishments imposed by Christian, civil society were unjust; others, not imposed, should according to justice be imposed. Christians whose duty it is to make such laws, hear and obey the Church if they are her devout children.(408) Parity of punishment for man and woman was restored in the case of adultery; Roman laws had favoured the male.(409) Women were no longer subject to punishment if they remarried within a year of their bereavement.(410) These punishments were not only deficient from the point of view of equity and justice; they also tended to set men unduly over women. It was men who made the law and, unjust as they were, made it for themselves. The Church also reformed the law that allowed a husband to kill an adulterer found with his wife,(411) and a father to kill his daughter caught in adultery.(412) These laws authenticated acts of anger and revenge; they did not decree justice and exemplary punishment.(413)

2495. The Catholic Church, as we said, recognises laws of civil society as obliging in conscience.(414) In the same way, Catholic Christians who make up civil society or possess autocracy and the faculty of making laws are obliged in conscience to accept the reform and emendation of civil laws when this springs from the Church's opposition to injustices in these laws. Catholics are also obliged to order civil laws in such a way that they never prejudice, but assist the attainment of the more noble end of theocratic society, and harmonise fully with its just laws.

2496. Politico-civil laws are those which spring from `jural reason applied for determining social organisation, or the obligations of officials and all members for the sake of co-operation in attaining the end of a society.' These laws can be subdivided into State constitutions and political laws properly so-called.

2497. I.) Constitutions. — Baroli, speaking about so-called fundamental laws, writes:

These words show clearly that the author is speaking about fundamental laws which emanate from an already constituted legislator in society. Properly speaking, these laws should be called organic, rather than fundamental.

2498. It is equally true, however, that a legislator cannot conceive the formation of true laws before he comes into being. These `laws' should therefore be called more suitably conventions. They may be tacitly admitted, or written. In an absolute monarchy, for example, it is tacitly admitted by the entire society that the monarch is absolute.(416) If this should come to be written down, it would be a truly fundamental constitution, placing in existence the legislative power of the monarch.

2499. The same is true of the act by which autocracy is transmitted and divided amongst several subjects.(417) This would be the case if a democracy, by choosing a ruler, changed itself into a constitutional monarchy. True conventions are formed between the various subjects who are each invested with a part of the autocracy, that is, between the people, the chosen king and the nobility (the house of hereditary peers). The complex of these conventions, when possessing the force of law, are normally called `constitutions'.

2500. Laws of this kind, once agreed, cannot be undone except by the holder of the autocracy as a whole. If conventions have been made between the different powers making up the autocracy, they cannot be undone or changed without agreement amongst the parties themselves.

2501. The matter of these constitutions cannot be accurately determined. They may include various levels of organic arrangements which differ from mere organic laws solely through the different obligation they induce, through the nature of the conventions which bring about their formation, and through their greater stability.

2502. Nevertheless, it could be said that the appropriate material of civil constitutions must be the precise determination of rights and political obligations of the seven subjects to be found in all societies, but especially in civil society (USR, 367-383).

2503. II.) Political laws, strictly speaking. — These are the laws established by an already constituted legislative power. They are directed at organising the social executive, the tribunal and the force in everything not provided for in the State constitution. They also prescribe rules of procedure enabling these three powers to act in the way best suited for attaining their end.

2504. These laws can be called organising or organic laws to the extent that they organise the three powers. They become laws of political procedure, economic or administrative laws, and police laws, etc., to the extent that they prescribe directives for some already organised social executive. Finally they are laws of procedure, laws determining the political rights of members brought before competent tribunals,(418) and criminal laws to the extent that they prescribe directives for already organised tribunals. They are military laws, divided according to the branches of the armed forces to which they are regularly directed, to the extent that they prescribe norms for force.

2505. We put criminal laws amongst politico-civil laws.(419) As we said, their end is not the punishment of crime, but restraint of the criminal drive. Such restraint forms part of the social end (RI, 1819). We have spoken already about the Right of defence against probable attacks on rights which human beings possess in the state of nature (RI, 1820-1994). Here we shall add a few comments about the exercise of penal right in civil society.

2506. The reason for punishment inflicted by civil society on delinquents. — Restraint of the criminal drive by means of exemplary penalties, that is, through fear brought about by the threat and infliction of punishment.(420)

2507. The absolute measure of punishment. — We have to distinguish compensation for harm from punishment. Compensation should be ample, that is, sufficient to compensate certainly and fully any harm deliberately caused.(421) Punishment, however, must be the minimum required for the end in view, that is, restraint of the criminal drive (RI, 1684).(422) Establishing this minimum requires the observance of certain matters.

2508. First, exemplary punishment will never obtain total restraint of the criminal drive. How far, then, should punishment go?

My general answer is that the rigour of penal law can be taken to the point where further application would cause more harm than good. It should not be taken further even though it does not achieve total restraint of the criminal drive. This means that the rigour of penal law must be confined to that degree which brings maximum good. This maximum is calculated by subtracting the evil,(423) which in part is always connected with the rigour of penal law.

2509. This maximum can be calculated only approximately by expert, perspicacious minds who can see to some extent the effects of different degrees of harshness. The calculation is complicated, and to be carried out with complete prudence rather than rational analysis.

One element in this calculation is the drop in crime. This can diminish to the point where the few crimes that occur bear no relationship with the punishment. In other words, they happen simply through human fallibility and corruption, and could not be avoided whatever the increase in the rigour of public punishment. This is the greatest possible reduction in crime in any given civil society.(424) To attempt to obtain more would result in abandoning the maximum good to be desired from penal laws. Moreover, this kind of reduction is often unrealisable. To want to obtain it by constant increase of rigour would result in the loss of the maximum good that penal laws must serve. The maximum good, therefore, is not properly speaking the reduction in crime to the extreme proposed, although the rarity of crime is one of the elements which form part of the calculation of that maximum [App., no. 10].

2510. The relative measure of punishment. — There is no doubt that the measure of punishment must vary in different civil societies according to the intensity of the criminal drive to be suppressed, and according to the insensitivity to exemplary punishment which serves as a counter to criminal drive.

2511. In other words, punishment should be decreased in a nation in so far as its average criminal drive is less intense and the people are more sensitive(425) to similar punishments. The absolute measure of punishment will be fulfilled by lesser punishment in a very sensitive people amongst whom crime is rare and the desired good is at its maximum.

2512. The degree of intensity of the criminal drive depends on a people's wickedness and its innate and acquired tendencies to evil. The degree of sensitivity to exemplary punishment depends on the greater degree of activity, and of indolence and habit, in inflicting punishment, as well as the level of self-respect. It also depends on the level of foresight and culture, or torpor and barbarism. A temperament inclined to torpor and barbarism does not easily reflect on possible punishment or on the danger of incurring it. The more corrupt and barbarous a people is, the greater its need of more severe punishment.

2513. We noted that antiquity is divided into two great cycles relative to moral and intellectual progress. The first begins with a state of moral goodness accompanied by a healthy, perspicacious, natural understanding, and gradually descends to a state of barbarism. The second rises from this final state of barbarism to that of civilisation. Greek traditions begin the history of the human race with the second cycle, and describe progressive civilisation. There is no trace of the more ancient course of history. Consequently Greek and Roman penal laws are at first extremely severe and bloody. One example are the Draconian laws, written as they say in blood. But as peoples develop and improve, penal laws become milder. Finally, the Romans arrive and bring civil society to its apex in the ancient world. Their boast is to have formulated milder penal laws than any other nation: gloriari licet nulli gentium mitiores placuisse poenas.(426)

2514. If, however, we go back beyond the time in which Greek and Latin authors describe penal laws in all their crudeness and severity (the penal laws pertaining to the first legislations known to these authors), we find milder punishment. Indeed, the death penalty was excluded at the beginning of the world because, I think, it was not necessary at the time [App., no. 11]. When Plato described penal legislation, he regretted the impossibility of providing the mild punishment he desired. According to him, very ancient legislators had been able to do this because the first of them were children of the gods and had legislated for heroes, themselves children of the gods. Plato himself, however, lived in an inferior, human age, and had to legislate for human beings:

These ancient legislations mentioned by Plato must have belonged to the first cycle. The second cycle began with what the Greeks called `the age of men', before which they had only fables about gods and heroes. Thucydides' words hinting at the progress from mild to rigid punishment should therefore be referred to the first cycle:

2515. The relative measure of punishment has to be calculated from the jural, moral condition of a given people. As far as we are concerned, this jural, moral condition is the median quantity and the quality of the criminal drive. The counter-thrust provided by punishment must be proportioned and harmonised with this quantity and quality, as Romagnosi admirably points out:

However, we want to speak only about the relative quantity, not the quality of punishment.(430)

2516. The following comments have to be made on this point.

The separation of penal legislation from other means used by government to bring society to its end is a serious abuse of abstraction. Penal legislation cannot be perfect unless it is accompanied by all other moral and intellectual means intended to diminish crime. Civil government has the same obligation as each individual `not to use violent methods to obtain what is just until all peaceful means have been found useless' (RI, 505, 1796-1799). These peaceful methods intended to prevent crime and eliminate the criminal drive are reduced to promoting everything that enhances people: virtue, religion and education. According to G. D. Romagnosi:

He goes on, noting that this is a jural duty for civil society:

This is the standard with which to judge civil governments so neglectful of many suitable, persuasive means 1. for removing the occasion for crime, 2. for destroying the tendency to crime by bettering the wills of the citizens and 3. for suppressing the first signs of crime before it has a chance to develop. The execution and torment rendered necessary through their neglect or wickedness is nothing more than infraction of right, social offence and public assassination.(432)

2517. The legislator must therefore establish only necessary penal laws. Prior to this, he must use all his skill to ensure that necessary punishment is reduced to the minimum. He will achieve this, as we said, by

1. encouraging moral virtue with every means in his power;
2. removing all occasions of crime with wise vigilance and care, without offending the rights of anyone or unduly restricting inoffensive freedom;
3. ensuring that the threat of punishment is clear to all, and that fear of punishment is the maximum to be derived from the nature of the punishment. The same punishment can, in fact, be threatened and carried out so as to induce fear more effectively — and more effectively even than greater punishment.

2518. Several aspects of public justice coalesce to produce this last effect. They are all jurally obligatory as corollaries of the general obligation which governments have to reduce, with means proper to themselves, the necessity of punishment to the minimum level. In other words, they have to make the least punishment as effective as possible. These aspects are:

1. the greatest public vigilance in apprehending the guilty;
2. incorrupt force which ensures unalterable, speedy process of prosecution of the guilty;
3. wise, cautious procedure which takes account of the crime without confusing innocent parties with the guilty;(433) the procedure should also be brief and loyal;
4. determined, immediate, inevitable punishment, adapted to the manner and characteristics of the criminal drive;
5. exemplary execution of the punishment, that is, it should be public, suitable for arousing terror, moral and respectful of human dignity [App., no. 12].

2519. Let us grant that civil government neglects no peaceful means useful to society for diminishing crime and reducing the criminal drive; let us also grant that it has put into force to the best of its ability the minimum, relative measure of punishment needed to suppress the criminal drive in any given civil society committed to its care. Two questions now arise: how can government recognise the effective extent of this relative measure? and if, as we said, this measure is relative to the criminal drive, how will government be able to recognise the degree and characteristics of this drive in a given nation?

2520. First, we should note what Romagnosi has to say on the subject:

2521. Second, we note that the laws of the human heart are common to all. If we wished to discover from these laws the degree and characteristics of the criminal drive, we would have only a general, abstract result, applicable to every society. We would never know the degree and characteristics of the criminal drive in a given civil society. For example, the laws of the human heart enable us to establish in general that the criminal drive will be greater in those individuals who 1. have greater power to harm, 2. occasions for doing harm, 3. lust for possessions, 4. take pride in domineering, 5. have other passions and vices, 6. boldness, 7. lack of moral restraint, 8. hope to succeed and go unpunished, and 9. have no fear of discredit. Similar circumstances or moral qualities of individuals can be added to this list. None of this, however, enables us to know the measure of the criminal drive which really exists in a given nation. It is simply a rule which, when applied to positive data, leads us to discover that measure.

2522. Third, as we said, certain qualities and dispositions are found in the human heart which can serve as a rule for knowing the quantity and characteristics of the criminal drive in individuals. The same is true for civil societies, each of which possesses certain conditions of its own enabling us to indicate with probability the degree and characteristics of its criminal drive, provided that the factual conditions on which the calculation is based are known exactly. These conditions and social qualities refer equally to the state of the people and to that of government at various levels of its perfection.

2523. These observations show that theoretical principles and rules are not sufficient to provide knowledge of the measure of the criminal drive in any given society. Compilations of facts are required in which we see actuated the symptoms and indications present in the theoretical rules. The abundance of diligently compiled, symptomatic facts enables us to reduce them to a single general fact, an average fact which expresses the frequency of the case and consequently the probability that it will be repeated. The degree of this probability is the measure of the criminal drive.

Where are we to find such a classification of facts? So far, they do not exist anywhere, although they should be registered in the moral statistics of which we spoke elsewhere. They are poorly developed despite their urgent necessity.(435) A time will come when these statistics will be recognised as the eye of politics, and especially of criminal legislation. Deciding punishment without them will seem to be gambling with the sorrows and torments of human beings. Collecting accurate statistics of this kind and periodically renewing them is therefore a condition for public justice; it is a jural duty of the civil legislator.

2524. Equality of punishment. — There is no doubt that punishment threatened by society should be equal for all. We must not be misled about this equality, however. We are dealing with jural equality, that is, equality before the law.(436) Relative to penal legislation, this equality can be formulated as follows: `Every member of civil society, finding himself in the same circumstances and committing the same crime, will be tried in the same way and receive the same punishment.'

2525. This penal-jural equality does not, however, remove two other inequalities. Indeed, it cannot be preserved unless the legislator takes account of the two inequalities we wish to indicate.
These arise from variations in the circumstances indicated in the formula: from the delinquent's circumstances, and from the circumstances of the person offended. In other words, both the delinquent and the person offended can be unequal; both can exist in unequal circumstances, which have to be calculated for the punishment to be equal.

2526. We note however that not every inequality in the delinquent, and not every circumstance of person offended requires consideration. Attention must be confined to whatever is necessary to temper the punishment in such a way that it is maintained at an equal level for all.

2527. We ask first: `What are the circumstances of the person offended which must be kept in mind by the criminal legislator?' — `Only those which change the species or the gravity of the crime.'

Punishment would not have penal-jural equality if it were the same for different species and different degrees of gravity of crime. This species, and gravity in the same species, if it is affected by the circumstances and qualities of the person offended, must be calculated according to these circumstances and qualities. This does not mean that the legislator takes account of the person offended. He is considering the crime which he wishes to punish justly. If it is more serious, penal teaching requires that society be protected more rigorously. Legislations which, for fear of offending penal-social equality, feel themselves obliged to punish a crime without regard to the qualities of the person offended,(437) have misunderstood penal-social equality. I am speaking, of course, about those qualities which render a crime more serious.(438)

2528. We have to pass now to the conditions of the delinquent: `What are the conditions of the delinquent which have to be kept in mind by the penal legislator?' There is no doubt that conditions relative to the delinquent which change the species or aggravate the crime must also be considered. They come to form part of his penal-jural responsibility (RI, 1779-1791).

2529. In addition, legislative wisdom will note all the circumstances of the delinquent which are of assistance in discovering the most effective and at the same time mildest punishment as a counter-thrust to the criminal drive of other individuals in the same circumstances.

2530. This, too, will be done haphazardly and imperfectly if the moral statistics of which we have spoken are not compiled. These statistics should contain the classification of delinquents for various periods of time according to their age, sex, profession and other social distinctions. This will show which crimes are normally committed by one class rather than another.

2531. The tenor of punishment should be examined on the basis of these factual matters to discover the most efficacious and mildest punishment for each class of persons. Punishment will then be established according to the characteristics and degree of intensity which achieve the effect intended by penal teaching. This, as we have seen, is directed `to reducing the frequency of crime to the two limits constituting the absolute measure of punishment.'

2532. Characteristics of punishment. — Granted the various characteristics and the degree of the criminal drive in different classes of citizens and foreigners (civil society has to defend itself against foreigners according to the same principles of equity), it is not contrary to the principle of social equality that punishment, the counter-thrust to the criminal drive, should take different forms and impose different burdens. If these differences are calculated not arbitrarily, but on the basis of moral statistics made known to the public, they will not be considered in any way unjust. They would, however, be seen as unjust if the legislator maintained rigid equality of punishment for the various classes of people that he had in mind. Moreover, variation in punishment is not only the way to achieve penal justice; it will also be praised for its humanity as the only way to mitigate, as far as possible, the rigour of punishment.

2533. We must speak now of the various, particular kinds of punishment.

Punishment by disgrace. — Every publicly known punishment brings with it a degree of disgrace corresponding to the degree of punishment. Disgrace is simply public disapproval of the crime. Disgrace, therefore, forms part of natural justice; as punishment, it follows inevitably upon crime. This just punishment cannot be inflicted for fault, however, except by upright, public opinion which forms a just estimate of fault. And it will be better inflicted in so far as public opinion is more uniform. But one of the most important duties of civil government is to use means peculiar to itself to rectify and enlighten public opinion, not to falsify it (cf. 2305-2307). Disgrace, therefore, must not be confined to certain crimes; it is a part of punishment attached by nature and reason to all crimes without exception. It must be inflicted by the public, not by government. Considerations of this kind make me wish that civilised people would completely remove humiliating punishments from criminal codes and be content with having the crime denounced to the public who alone are the competent ministers of justice in this matter and, as such, capable of inflicting merited shame.

2534. Acting in any other way produces various difficulties which, instead of serving justice, alter its balance, distort upright public opinion and foment immorality. The reasons for this are as follows.

1. If government wishes to distribute disgrace, it either wants to do this according to justice or believes it can arbitrarily increase disgrace for certain crimes to the degree required as a counter-thrust to the criminal drive. In the former case, government would have to assign a certain portion of disgrace to all crimes, which it cannot usefully do. Well-formed public opinion already does this of its own accord; others cannot do it in place of public opinion. In the latter case, government necessarily injures truth and justice, and wants to accomplish the impossible.

It injures justice because disgrace has only one measure, determined not at will but by the measure itself of the crime. Disgrace is not, therefore, amongst those punishments which can be increased and decreased according to the degree of the criminal drive. Consequently, it does not appertain to punitive power.

It wants to accomplish the impossible because what it desires is necessarily in opposition to public opinion which alone decrees the true blame to be placed on faults. Such opposition brings government into disrepute.

2535. 2. Because legislation's arbitrary use of humiliating punishment falsifies public opinion in some way, government automatically falls short in its sacred duties and ruins public morality.

2536. 3. Increasing the degrees of disgrace due to crime means sowing the seed of ill will; it is a true act of hatred against the delinquent. Such a sad effect amongst the public simply means that a wicked passion displaces tranquil, just disapproval in the mind. The great need of humanity is not an increase of hatred, but of benevolence in the heart.

2537. 4. Even stronger, I think, is the case against chastisement that exposes the delinquent to public derision, and abandons him to wicked mockery and torment by the crowd(439) and by children (who as a result soon develop bad habits). It is desirable rather that the people conceive feelings of commiseration for the guilty. I mean moral commiseration, which first leads people to desire the emendation of the criminal and then the end of his punishment.

2538. 5. Man-made disgrace, augmented by public demonstrations and declarations, becomes even more unjust after the delinquent's reform. He suffers longer than is necessary, and the stain, which perhaps cannot be wiped out, gives rise to feelings of indignation, hate, despair and impudence. Initially, this makes emendment difficult, and then impedes its stability.

2539. Fines and corporal punishment. — It seems clear to me that a delinquent who inflicts damage on the public purse (for example, by damaging a public road) should always compensate society for the damage caused. If this fine, which is compensatory of its nature, is not sufficient to suppress the criminal drive, some suitable punishment should be added.(440) However, I do not think that this principle of compensation can be applied with total consistency. According to the principle, expenses sustained by the State in maintaining criminal justice should be fully compensated by fines inflicted on the criminals who cause them,(441) just as the expenses sustained in the administration of civil-private justice should be compensated by those who litigate maliciously, or are in the wrong (cf. 2474). Why should harmless, peaceful citizens, who give no trouble to courts, be burdened in this way?

2540. At this point, we need to compare fines and corporal punishment. Which penalty is the better?

Wherever possible, fines should be used. They debase people less and respect their dignity more. As a consequence they are milder.

2541. Moreover, fines allow for precise gradations.

2542. The suitability of this kind of punishment was recognised in the Middle Ages,(442) when almost all crime(443) was punished by a monetary tariff, and in remote antiquity almost as soon as money was invented.(444)

2543. It may be objected that in this case the rich will be advantaged over the poor who cannot pay and will have to undergo corporal punishment. But this kind of objection shows that the purpose of punishment imposed by civil society has not been well understood. It is not a question of punishing crime with a just standard, but of restraining the criminal drive. If, therefore, society restrains crime amongst the rich with fines alone, it has achieved the end of punishment, and all its other rights in the matter cease. Society has an equal right to restrain the criminal drive amongst the poor, but it cannot do this through fines. It must use the means available, that is, corporal punishment. We are not dealing with a distinction between rich and poor, but the exercise of a right which civil society has towards both classes. This right is also a duty. We are dealing with the attainment of a public good, that is, the defence of all citizens against any crime which could break out.

2544. But how can you measure such totally different matters as fines and corporal punishment, which have no common unity? — The same mistake! The measure of the two punishments is exactly the same provided they obtain the same effect, the restraint of the criminal drive. Each punishment must be brought to the level where it obtains its effect without consideration of other punishments, or without need for comparison with them. We are not dealing with distributive justice here, or, if we are, it is already fulfilled when an equal check has been placed on both classes, rich and poor.(445)

2545. Other questions could be raised about fines and painful, physical punishments. Let us begin with fines.

First question: Must fines be measured by the degree of a person's wealth?

Answer: — No. The more normal cause of delinquency is cupidity. The criminal drive is therefore usually in proportion to this. If we suppose that there is less cupidity amongst the rich, the criminal drive amongst them will be less and require less counter-thrust. On the other hand, the degree of cupidity is also the measure of the pain caused by the fine. Hence where cupidity is greater, whether in the rich or poor person, the fine itself becomes more painful and pungent. There should, therefore, be perfect equality in fines.(446)

2546. Second question: which goods should be subject to fines? In other words, granted that a fine has been inflicted, and that the guilty person has a debt towards society, on which goods should the fine be levied?

Answer: — a) First, not on the chattels which in France are called `goods considered stable by law.' These are the goods necessary for subsistence, such as the bed belonging to the guilty person, the beds of his wife and children, necessary clothes, tools of one's trade, and so on. According to Roman law, these goods should be respected even when other creditors demand their rights.

b) Second, the law has to punish only the guilty and, as far as possible, prevent punishment from falling even indirectly on the innocent. At the same time, families and their well-being, not individuals, are the special, proper aim of civil society (RI, 735-737). The fine should not therefore affect that share of goods necessary to a family if it is to go on living and progressing without falling into misery. The fine should be levied with due regard to the age and health of the wife and children, and the number of children. These are matters to be fixed by wise laws, and not left to the discretion of judges or bailiffs.

2547. c) Finally, the share of goods determined by the constitutive law of civil society as necessary patrimony for the status of citizen (cf. 1690-1693) should be left intact. The family of the guilty person pays the necessary poll-tax from these goods.

2548. Here I cannot omit an excellent passage from Plato which touches on almost all these points simultaneously. He begins by recognising the preservation of the entire society as the sole reason for capital punishment. Society cannot in fact be preserved if incorrigible citizens go unpunished as they rebel against divine, domestic or even civil society. He goes on immediately to speak with admirable wisdom about fines. He says:

These conditions correspond precisely to what we have called the political patrimony mentioned by ancient writers (RI, 1401-1404).

2549. Third question: What stipulations should be attached to corporal punishment?

Answer: — All punishments (except capital punishment) could be taxed as fines. Corporal punishment could then be imposed as a substitute for fines if the guilty person were unable to pay. This substitution should be established beforehand in the criminal code, and mentioned in the decision.

2550. Flogging and in general every sharp, but temporary, harmless pain can usefully be employed in this case without harmful consequences to the family of the guilty person, provided it is applied without serious harm to bodily health. This punishment, if sufficient, is the best.

2551. Prison, whether mild or harsh, has no harmful consequences for the families of unmarried delinquents whether they live with their families or not. Nor is it harmful in the case of idle, non-productive delinquents who are a burden rather than a help to their families. As Romagnosi says, they are of no `social worth.'(450)

2552. Detention and prison can, however, cause very serious damage to innocent families when the guilty member is useful to the others by supporting them with his work, and providing the other members with work. This is especially the case if he alone is capable of directing them, or has the ability to maintain the shops, workshops and earnings on which they live.

To say that the damage suffered by the innocent is indirect (the normal hair-splitting of lawyers) is baseless. It remains just as harmful, and unjustly harmful, if it can be avoided, as it often can be — and more often than one imagines. But this can only be done through wise legislation, by believing that it is possible, and by taking account of the pain and anguish pressing down upon innocent creatures. Let me say briefly what comes to mind immediately on this subject, about which lengthy thought and solid, collective study by the civil legislator is a sacred duty. If prison is believed necessary for a man who works, let him work sufficiently to compensate with his earnings the damage and punishment of the family whom he has to abandon. If this does not suffice, is it absurd for a human, civil, Christian society to think of some other way in which to compensate the unhappy, non-culpable family?

2553. We have seen that civil society is obliged to be careful in eliminating harm which may come to a family as a result of punishment inflicted on the guilty. Criminal legislators, however, also have the duty to see that punishment helps the guilty to emend rather than grow worse.(451)

This noble duty also descends from the general duty of the end of society, and from the special end of punishment, the aim of which is to diminish crime. Society operates against its own end therefore if, in applying punishment, it worsens the person it punishes and nourishes rather than decreases the criminal drive in him. It operates in accordance with its end if it betters this person. Civil society neglects its duty if it does not regulate punishment in accordance with its end. But how will it succeed in doing this?

2554. I think it will succeed if the concept underlying punishment by incarceration is predominantly the following: `Prison must be a place of work and education for delinquents.'

2555. It is not, therefore, punishment of the prisoner that has to be sought in prison. Punishment is necessarily connected with 1. reclusion and privation of physical freedom; 2. assiduous work, ordered and imposed by others; 3. the privation of restoratives such as wine and tobacco that could cause disorder;(452) 4. moral education accompanied by forceful means wisely applied. In this system, punishment is secondary; prison becomes a means for the betterment of the guilty. This does not diminish it as punishment, but simply ensures its human dignity and gives it worth in the eyes of the criminal himself. It may indeed be milder, but it is more effective; the manner of inflicting it has decreased the need for rigour. The virtue inspired in the guilty, the moral habits imposed upon them, are far more powerful in repressing any possible criminal drive in them than material, angry pain. The good conduct of released prisoners will serve as good example in lowering the criminal drive that their bad example had previously incited.

2556. Negative and positive means have to be employed if prison is to be a place of education and moral betterment. One of the most necessary negative means is the separation of the delinquent from contagion by other prisoners. Without separation, there is no hope for his emendment; he will certainly get worse. A communal prison is a school of wickedness.(453)

The advantage, and indeed the necessity of the cell system must be immediately obvious to everyone, even if it is not used with the same constant rigour as in Philadelphia, but tempered in accordance with the proposal made by Tocqueville in his admirable Report. However, I think there should be some kind of wise classification of prisoners. There should also be some gradation of solitary confinement from absolute to lesser solitude. As prisoners improve, they should be moved at various times to different stages of social life, but without being allowed any contact whatsoever with other prisoners. No one with evil tendencies can be improved by evil company; only by good.

Nevertheless, round-the-clock separation of inmates is, as we said, only a negative means. It impedes greater evil, and even prepares the way for good. But it cannot be expected to better these sad people. We have to trust more in positive means, which, thanks to our modern materialism and unbelief, are the least studied by the philanthropists of our century.
Amongst these positive means the most influential is that of religion. Priests, religious men and women, pious Christians, male and female, are the true friends of humanity. Their help can provide prisoners with instruction, comfort, good motivation and finally true conversion to God and virtue. If the spirit of the Catholic Church is allowed to penetrate prisons, inmates will be seen to change into penitents. This is the only way to form true penitentiaries.

2557. Penal colonies. — This kind of punishment has immense advantages without the drawbacks of prison. It can perhaps be used more successfully than any other punishment for reclaiming the worst cases for society by sending them to a new world where they are forced to forget the instigation to vice found in the old world. However, not all governments have the opportunity of unloading the lowest elements of their populations in distant, uncultivated lands.

2558. Loss of political rights. — These political rights of the criminal are either some duty entrusted to him by civil society, or simply his state as a citizen. If his crime shows that he is unsuitable for office he should be stripped of his job without compensation. But is this loss of a post, which is more a consequence of the manifestation of the criminal's unsuitability than of the crime itself, a sufficient punishment? The answer depends, as always, on the great rule of the end of social punishment, that is, restraint of the criminal drive. Certainly, the loss of one's post seems a necessary consequence of unsuitability, not a criminal punishment. Nevertheless, it is painful, and need not be increased by further punishment if it can be shown to have produced its effect as counter-thrust to the kind of crime in question amongst officials.

2559. I consider the total loss of citizenship neither useful nor necessary. However, granted that civil society is constituted in such a way that radical power is divided according to the citizens' income or capital (cf. 1687-1693), this power must naturally decrease in proportion to the many fines levied on the capital of the delinquent, and to other punishments affecting his material possessions.(454)

2560. We can now summarise what we have said so far. Acts of autocratic power are the material and executive activities carried out by this power, and the commands, judgments and laws which emanate from it directly.

A fifth kind of acts, the organisation of society, has to be added to these four. This will be achieved by a simple, changeable command if the society is small and in its infancy. More often, it will depend upon organic laws. As we said, it soon becomes obligatory, as civilisation develops, to organise by means of law (cf. 2427-2428).

2561. It is clear that conceiving an autocratic power in charge of a civil society without need of a ministry is practically impossible. Bonald notes, acutely enough, that every society includes of its nature some kind of trinity: the autocrat (the person who wills), the minister (the person who executes) and the subject (the person or people who obeys).

2562. The autocrat communicates some of his own power to the organic offices. Note, however, that autocratic power is in part essential to the autocrat as supreme power, and in part not essential. Legislative power, for example is essential; executive power is not. The communication of power therefore can be either delegation of all or part of autocratic power, or communication of simple executive power.

2563. Supreme-delegated power pertains to what we have called government-mandatory power (USR, 313). An example of this are deputies who in constitutional States represent the people having a part in the autocracy.

2564. In the second case, the power communicated is properly called ministry. This ministerial, executive power is found in the three social subjects which I have called the executive, the tribunal and military force (USR, 367).

2565. The executive is divided into two branches:

I. The first is the office of political vigilance (political magistrate). This office is responsible

1. For seeing that members of a society fulfill their social duties, and do nothing opposed to them.
2. For recognising the cases in which government intervention is necessary to regulate the modality of rights.
3. For establishing and putting into execution the modalities which, without prejudice to the value of anyone's rights, are necessary or useful for the maintenance of public order and the good of all, and prevent disorder.

II. The second is the office of administration of public goods (economic magistrate).

2566. We move now to the sixth act of autocratic power, provision of suitable persons for the various responsibilities established along with the organisation (cf. 2151-2153). Can the autocratic power nominate persons to offices at will?

Here we have to distinguish between seigniorial and social Right. A master can nominate whomsoever he wishes as procurator of his own affairs. Doing this, he does not offend anyone's right, although he may offend against prudence and culpably harm himself and his family by preferring favourites of his own who are unsuitable for dealing usefully with his interests. But if the master is also a civil autocrat, he must execute his social duties faithfully.

2567. The civil administrator must be guided in his rule by social, not seigniorial Right. Consequently, he does not have a seigniorial choice in nominating persons to social offices or responsibilities. Rather, he has a strict jural obligation to choose the persons whom he judges impartially to be the best, all things being considered, for carrying out the offices.

2568. Again, he has the jural obligation to use all the means of which he has knowledge, and over which he has power, to discover with the greatest possible safety the most suitable persons. This is the case even if such persons seek modestly and virtuously to avoid honorific and profitable public responsibilities.

2569. Granted all this, the autocrat, or his proxy, remains the competent judge of the greatest possible suitability that can be found. And this is the basis of distributive social justice.

2570. The greatest possible suitability is therefore the only rule according to which the autocrat, or the person he has delegated, must choose the officials. It is true that a great number of elements enter into the calculation of this suitability, each one of which must be attributed its exact weight. In the end, however, the choice must always fall on the greatest comprehensive suitability that can be found; it must not be made according to the personal taste of the autocrat. It would appear that one of these elements must be nationality. If, however, the autocrat were to find definitely more suitable persons amongst foreigners, after nationality has been given due weight in the calculation, he would have to prefer a foreigner. A worthy foreigner could, of course, soon become a national, and thus be acquired for the country. Enlightened rulers sometimes enriched their States by inviting great men to their countries from all parts. This was to the glory of the rulers and the immense social advantage of their countries.

2571. Have those chosen for social responsibilities and offices the jural duty to accept this work? The responsibilities can be considered either as public burdens, or as honorific, well-paid, advantageous posts in so far as they put people in the public eye and offer economic advantages to their holders. Everyone can renounce well-paid jobs and honours. No one can renounce public burdens, but he can require them to be distributed proportionately. The competent judge of this proportionality is the autocrat alone (cf. 2153). The citizen can ask to be dispensed from the office or responsibility offered to him, but will have to accept it if the autocrat does not willingly grant him the dispensation.

2572. The most onerous of these burdens in civilised nations is military service, which must be distributed more scrupulously than other burdens.

1. It must be distributed equally amongst all the citizens. Accordingly, it conforms to social justice, it would seem, if families not subject to call-up, or exempt for any reason, pay some compensatory tax, justly calculated. This will be slightly higher than the tax paid to the State by families who suffer by conscription, and will be calculated either on the principle that it is distributed to these families or to the individuals they provide (cf. 2154), or put into the State treasury for the general alleviation of public taxes.

2. Conscription must be kept to the lowest possible level, that is, sufficient to provide for wars which have a true social reason.

2573. We have to distinguish here between wars which a master wages in defence of his own seigniorial Right (dynastic wars), and those fought by civil society in self-defence (national wars). A master, even if he is not head of civil society, must be defended by those of his bond-servants whose servitude includes this burden (cf. 2159). If he wishes to hire mercenaries, as families often did before the constitution of civil associations, he has to form a free contract with them. He cannot force them to fight for him. A modern example of this is Lord Cochrane, when he came to the help of the Greeks and used his own money to arm a frigate.

2574. On the other hand, it is very fitting that civil society should defend its autocrat even if it has no servile tie towards him.

2575. The seventh act of autocratic power, which is as much a duty as a right, is vigilance or social inspection. This supreme, universal vigilance applies to the execution of commands, judgments, laws, and extends in a special way to officials nominated by an autocratic power. As Baroli shrewdly says:

2576. Autocratic power contains all governmental powers, all the acts that we have so far enumerated. Some of them, however, are so essential to this power, that they cannot be alienated; some can be communicated to ministers.

The essential powers of an autocrat are the following: supreme command, supreme judgment, supreme legislation and supreme inspection. These supreme acts can be delegated, but if alienated, bring about cessation of autocratic power. Other commands can be entrusted to other people. The autocratic power can work through organs by instituting a ministry. Social ministry extends therefore to the following: 1. the acts of material execution; 2. lesser commands and ordinances; 3. lesser judgments; 4. lower levels of inspection.

Other matters that could be required relative to the exercise of such offices are dealt with in treatises on the subject. My own lengthy work may therefore be considered finished.

Notes

(399) Some have maintained this impiously, some through abuse of abstraction. The former are in a certain way coherent with their own principles, the latter are not. Indeed, if people who unite in civil society believe at least in a God who lays down laws, and rewards good and evil, they must consequently ensure that the civil laws they make do not offend divine laws. This is even more the case if they believe in revelation, in Christianity, in Catholicism. There can be no greater absurdity than imagining that because people come together in civil society, they can shake off the will of God, granted that they recognise and believe it is manifested to human beings, as all Christians do.

(400) Cf. Dottrina del peccato originale, 91-118.

(401) Ad Ocean.

(402) C., bk. 5, tit. 5: 6. - Nov. 89, tit. 1, c. 15.

(403) Decretal., bk. 4, tit. 7, c. 5.

(404) I have shown that the faculty for making a will is present in natural Right. It is not created by civil laws (RI, 1377-1393).

(405) Instit., bk. 1, tit. 10. — Digest., bk. 23, tit. 2: 2.

(406) Ibid., 15.

(407) C. Trid., Sess. 24, c. 1, De Reform. Matr.

(408) The Church worked for the perfection of civil legislation not only as Church, but also as a body with political rights. In this condition she was called to take a direct part in the formation of laws and, in a word, to share in civil autocracy. Everyone knows how the clergy were the first estate in all the nations of Europe. The Bibliothèque de l'homme publique (t. 3, p. 51), a publication highly unfavourable to the clergy, says in speaking of the Franks and Burgundians: `Ecclesiastics, the only educated people, almost all of Roman origin, became the interpreters of law which they made more acceptable and human than barbarian law. They had the largest share in the capitularies of our kings, and in our first and second rank of aristocracy, which formed the Code at that time. One section of these capitularies is the work of the Councils which were adopted and confirmed by the king and the nation; the other was the work of the ancient parliaments. — As far as the nobles were concerned, disagreements were terminated by war. Vassals, extending their rights as they pleased, or on the occasion of some particular offence, fought against their sovereigns. It was the clergy who acted as mediators for most of these conflicts, and opposed private wars and violence with the maxims of the Gospel, rational right and the threat of excommunication. Their mediation consistently enriched them and brought them ever greater consideration.'

(409) Decretal., bk. 5, tit. 16.

(410) C., bk. 5, tit. 9: 1. - Decretal., bk. 4, tit. 21, c. 4: 5.

(411) Dig., bk. 48, tit. 5: 24, 25; C., bk. 9, tit. 9: 4; Nov., 117, c. 15.

(412) Dig., bk. 48, tit. 5: 23, 29.

(413) Cf. M. Troplong, De l'influence du Christianisme sur le Droit civil des Romains, Paris, 1840, for a recent work on this subject.

(414) `Laws do not distain to imitate the sacred canons. At the same time, the enactments of the sacred canons are helped by the decisions of rulers' (Decree of Gregory IX, bk. 5, t. 32, c. 1); `Indeed, holy Church does not reject service under secular laws which reflect equity and justice' (ibid., t. 33, c. 28).

(415) Diritto naturale pubblico interno, §114, *1.

(416) Seigniory has no need of tacit convention, but there is no doubt that the right to govern a civil society autocratically, placed in the hand of a single individual and separated from seigniorial right, does need some tacit convention. This is the general opinion of all Catholic authors. St. Alphonsus is one example. He writes: `It is certain that the power of making laws has been put in the hands of mankind. This power relative to civil laws does not pertain to anyone by nature except to the community of mankind which transfers it to the single individual or group of persons by whom the community is ruled' (Th. M., bk. 1, n. 104). This conclusion, although fundamentally right, is inappropriately expressed: 1. properly speaking, the power of making civil laws is not given to mankind by nature (only fathers have the power to make laws for their families); nature provides only the power of making conventions. There is, moreover, the power to constitute legislative authority by means of conventions between human beings; 2. it is not true properly speaking that legislative power passes from the community of mankind (unless this has been organised in a democratic government) to one or two individuals. Rather, the community of mankind which has no power to make laws sets up this power in one or more individuals through conventions by which all oblige themselves to obey one or more persons whom it elects by way of contract as its head and governor.

(417) This was the Roman view. According to their conception, legislative power passed from the people, who possessed it in the already constituted republic, to the emperor alone. This concept undoubtedly served as a basis for all imperial authority. When mentioned in the Digest by the jurisconsults it was called the `royal law'. `What pleases the ruler has the force of law. By means of the royal law on which the ruler's power of command rests, the  PEOPLE HAVE CONFERRED ALL ITS OWN POWER OF COMMAND TO HIM AND UPON HIM (Dig., bk. 1, t. 4: 1). Justinian put this law in his Institutions (bk. 1, t. 2, §6) as the foundation of his authority. We have to remember that the same royal law, which is presumed to be given by the Roman people to the individual who assumed supreme power, could not have been a law, but only a convention. It became law, however, for members of the Roman commonalty because it was agreed both by the people who ceded their legislative right and by the individual who acquired and retained it as his very own.

(418) Civil codes are bodies of laws of various kinds. Sometimes they determine individual rights, according to natural reason; sometimes they establish rights or modifications of rights in view of the social or political end. I want to insist that the perfection of codes of law requires a precise distinction between the various modes of law.

(419) Consequently, civil society can proceed ex officio to search out and punish even private crimes, as Romagnosi very aptly maintains in his Osservazioni sulla dissertazione `Della legislazione criminale' del Sign. avv. Massa di Mentone (Biblioteca Italiana, nn. 114-115, 4th and 5th questions).

(420) This truth was well known in antiquity, as we can see in affirmations of Plato (De Legib., 9, and Gorgias) quoted by Seneca (De Clem., 1: 15) and A. Gellius. (Noct. Actt., 6: 14); and in Aristotle (Politic., 7: 13) and Cicero (De Off.).

(421) The subtleties of certain authors lead them to claim that the moral obligation to compensate harm depends upon 1. the will to damage a specific person; 2. fault. For example, they say that a person who burns John Smith's hayrick in the belief that it belongs to David Jones is not obliged to compensate John Smith because there was no intention of damaging his property. — The answer to this most subtle of subtleties seems to be this. The intention of harming David Jones contained two dispositions: 1. that of harming human nature in an individual; 2. that of harming David Jones, a determined individual. Granted that there is no obligation to compensate John Smith, who was not the intended victim, there still remains the obligation of compensating human nature which is the same in John Smith and David Jones, and which the arsonist intended to damage. If he is not obliged to make restitution to David Smith, he is obliged to restore the hayrick, the object he set on fire. The owner will then re-possess it for himself and use it.

(422) According to Gioia (Dell'ingiuria e dei danni, etc., bk. 3, sect. 1, c. 1: 3), `if there is no satisfaction, the public feels alarm proportioned to the uncompensated damage. Punishment alone is not sufficient to destroy the alarm caused by crime. It will indeed reduce the number of delinquents, but they will never be a zero number of criminals. Examples of crimes committed more or less publicly arouse a proportionate fear; each person sees that he could suffer in the same way. This fear ceases when crime is constantly followed by satisfaction and by punishment. Crime followed by punishment but not by satisfaction would simply show that the number of guilty who were punished equalled the number of ineffective punishments. Corresponding alarm would be produced in public morale (Bentham, Traités de législation, tom. 2)'.

(423) The evil connected with penal law is not so much the punishment inflicted on delinquents as the suffering caused to good people. Every delinquent has innocent relatives and friends. The harm that he suffers through punishment falls on entire families and on others indirectly affected by the rigour of the law. Damage is also caused by the inevitable consequences of penal legislation, such as criminal laws, tribunals, enquiries, armed police, spies, and so on. This can only be adequately compensated by the greater good one expects from it. Nevertheless, when considering the many evils necessarily brought about by penal justice, some weight should be given to the suffering of the guilty whose health, credit, and so on, deteriorate. They may even be deprived of life, which could have helped them to reform and do some good for themselves and the social body. This last consideration should be added to all the others which make it desirable to restrict the death penalty as far as possible. I am certainly not amongst those who, like the Avv. Carlo Lucas (cf. Du système pénal., etc., Paris, 1827 — a work which won prizes at Paris and Geneva), maintain that the death penalty is always unjust, but I do hope that certain civil, Christian societies will cease to make use of it in the not too distant future.

(424) `In any given society' because this final rarity of crime, which will always remain whatever penal rigour is in place, varies in different civil societies according to the degree of their evil tendencies and habits.

(425) Sensitivity varies in degree according to race, the social age in which a people is found, dominant opinions, and so on. It is said that the peoples in Suripatan decided to undertake only defensive wars, and to cut off the enemies' noses rather than kill them. This worked wonders (cf. Saint-Foix, Oeuvres, t. 4). But would this kind of defence be equally successful against a European nation? - Nor do I think that the remedy used to prevent Milesian girls from killing themselves would be effective at all times and everywhere.

(426) This was said à propos the death penalty inflicted on Metius Fuffetius. `This was the first and last death penalty amongst the Romans on a par with other laws of humanity. It is a matter for pride that punishment on other occasions was milder than that inflicted by other nations' (Liv., bk. 1). Cf. Rollin's comments, t. 3, on the mildness of Roman punishment in reference to the execution of Metius Fuffetius.

(427) De Leg., 9.

(428) Bk. 3, §45.

(429) Genesi del Diritto penale, §1504.

(430) Note the distinction we make between the absolute and relative quantity of punishment. The absolute quantity is determined in theory by a general formula equally applicable to all civil societies, sound or corrupt. To determine this quantity we had recourse to two effectual limits caused presumptively by penal legislation. These limits are: 1. the rarity of crime, which has reached such a low level that greater rigour in the law would be unable to diminish crime any further; 2. the incidental evils accompanying penal laws, and every degree of rigour used by them, which increase to the point that the maximum, refined good brought about by penal legislation begins to diminish. The perspicacity of politicians must subtract these evils from the sum of good brought about by the penal law, and consider the sum of refined good which remains. The degree of rigour must not increase to such an extent that the maximum of refined good is made to decrease. As we said, the absolute measure, that is, the degree of rigour of punishment in every civil society is that which diminishes crime as far as possible and no further, without causing per accidens other evils which detract from the refined, maximum good effected by penal laws. To obtain the relative measure of punishment, we have to see how punishment must be increased or lessened in different nations or civil societies of different jural-moral condition in order to achieve in some particular nation an absolute measure of punishment. Here success depends, I repeat, on the degree of the criminal drive in a given nation, or class of persons in the nation, and on the characteristics of this drive. From these two elements, we must calculate the relative measure of the punishment we seek.

(431) Genesi del diritto penale, §421, 55, 163.

(432) Plato speaks of penal laws after the institution of every moral virtue in his City. His introduction to the discussion on penal right should be placed at the head of the criminal code by every legislator. `It could seem out of place to provide laws for the things of which we are now about to speak (that is, crime) because we are dealing, in fact, with a City which we consider admirably disposed for the acquisition of virtue. Surely, it must seem strange to everyone to suppose that a wicked man could be born in a well-educated City, just as he could elsewhere. Do we really need the threat of laws to prevent someone from becoming a criminal or committing such things? Do we need laws to punish crime that has been committed? In other words, do we expect to find such wicked people in our republic? We, however, do not formulate laws as though we were the first legislators, the children of God. Their laws were intended for heroes, born like the legislators from the gods...' Truly just penal laws are those which the legislator prescribes for civil society after he has educated and established it with all the wisdom of which he is capable.

(433) It is extremely difficult to determine judicial proofs which are simultaneously alert and cautious. It is extremely difficult to determine the weight to be given to the judge's intimate conviction, which cannot be entirely ignored. In fact, codes which wisely determine precise, ascertained facts of a crime do not go on to determine ascertained facts from ascertained facts, but leave this to the judge's discretion. For example, it may establish as ascertained that such and such a weapon or instrument was used to commit a crime, but it will not be established that this weapon was already owned by the accused person at the time of the crime. This proof will depend on the judge's logic. A bloody table knife is found near the body of a deceased person; a corresponding fork is found in the house of the accused. The judge may consider this coincidence sufficient proof that the knife really belonged to the accused. The Austrian Code, which does not determine such proof from the ascertained fact, leaves the conclusion to the judge; it does however determine the ascertained fact. On the one hand, finding signs of the presence of the accused, such as marks of his shoes near the body, is not considered proof because this indication is not enumerated by law; on the other, finding signs or clues of the knife, such as the fork mentioned above, is sufficient proof of the ascertained fact because the signs or proofs of ascertained facts are not determined by law, but left to the critical assessment of the judge.

(434) Genesi del D. P., §1391, 1345, 337.

(435) SP, 853-858.

(436) SP, 214-215.

(437) Gioia, speaking about the statutes of the Italian republics, claims to have noticed `that in the midst of political disputes, civil legislation took several retrograde steps and violated EQUALITY WHILE PREACHING IT (Dell'ingiuria etc., p. 2, sect. 2, c. 3, §1). He also says: `If we compare the laws of barbarian peoples between the 5th and 12th centuries with those established by the Italian republics which appeared from the 12th century onwards, we find that punishment for injuries done to ecclesiastics in the first period was three times the ordinary punishment. In the second period, the former punishment was lowered and made equal to the ordinary punishment. Greater punishment remained as a guarantee for civil authority alone' (Delle injurie etc., p. 1, bk. 1, c. 5, a. 1, §2). Again: `The laws of medieval Italian republics, directed BY A CONFUSED IDEA OF SOCIAL EQUALITY, took no account of distinction in injuries which could be committed against women as well as men. Equal punishment was inflicted for these injuries. This is criminal injustice. Women are more susceptible to contempt, more easily alarmed, and weaker physically' (Dell'ingiuria etc., p. 2, bk. 2, sect. 1, a. 2, c.1, §2).

(438) One of the qualities of the offended person which does not render the crime more serious is, for example, his wealth. A law of Ina, king of Wessex, quoted in Canciani (Leges Barbarorum, etc., t. 4, p. 239) was, therefore, unjust, and today seems laughable. The crime was measured, according to a very apt phrase of Gioia, in acres. It increased relative to the amount of land possessed by the person offended. The calculation was made as follows:

A similar law attributed to Alfred the Great is also cited by Canciani (ibid., p. 250). These laws remind us of the way normally used in England to indicate a man's wealth: `He's worth so many pounds'. Only Gioia's tortuous, petty spirit could maintain that crime should be measured relative also to the wealth of the person offended.

(439) I refer to the chastisement that the uneducated rabble tends to prefer. Governments who second this deplorable desire are making a serious mistake. `In the case of adultery committed by a wife with the assent of her husband, the statute of Ferrara condemns him to be taken through the public streets on a cart, the front of which is decorated with two horns of a goat or a bull' (Statutorum, bk. 3, c. 103). What is really odd is to find a recent author proclaiming this as a glory of our poor Italy! Melchior Gioia, the author in question, adds the following serious comment to the words we have quoted: `This emblematic sign (of the horns) and others found in our Statutes — show that several ideas, presented as original by Bentham, may be new in England. They are not new in Italy' (Dell'ingiuria, etc., p. 2, bk. 1, sect. 2, art. 2, c. 3, §1).

(440) People unable to pay should compensate with work. If family obligations make this impossible, and the family itself is innocent and not to be involved in the chastisement due to the guilty party, sufficient corporal punishment should be inflicted to restrain the criminal drive, as our principles showed.

(441) However, the portion of the expenses which guilty people cannot pay must be sustained by society. These expenses should not be imposed on people guilty of other crimes.

(442) According to Bentham, financial punishment is suitable when the damage caused by the delinquent, or the advantage he gains, is of its nature financial, or such that it can be valued financially. When the injury is of its nature extraneous to finance, compensation cannot be measured exactly relative to the loss incurred. In this case, fines are not appropriate (Traités de Législation, t. 2). This, however, is obviously wrong. Bentham 1. confuses satisfaction with punishment; 2. forgets that punishment is not measured by the crime, but only by the criminal drive that needs to be restrained; 3. does not realise that even the most diverse good and evil are simultaneously measured very well by the effect they produce in the human spirit, as I noted in SP, 581-585.

(443) In many medieval legislations, punishment imposed for murder was paid by a fine. This reflected the mildness of primitive legislation, and of the legislation which Plato established in his book on laws. So, for example, the Salic law (t. 43) decrees: `If a freeman kills a Frank or a male barbarian who lives under the Salic law, he will be judged guilty and held to pay 8,000 denarii, that is, 200 coins (gold coins, equivalent to 40 silver denarii). If a freeman kills a Roman male, a table companion of the King, he will be judged at 12,000 denarii, 300 gold coins.' — The law of the Alemanni (t. 44) states: `If anyone kills a male, he will be fined 9 wergeld (wergeld is a form of fine); if a woman, 18 wergeld. - The law of the Bavarians (t. 3, n. 13): `If anyone kills a freeman, he will pay his parents if they are still alive; if not, he shall pay his patron, or the person on whom he depended while he lived, twice 80 gold coins. The fine is doubled if anything happens to a woman.' The law of the Ripuarians: `If any freeman kills a Ripuarian freeman, he will be judged guilty at 200 gold coins.' The Saxon law: `Anyone who kills a noble will pay 1,440 gold coins.' — English law: `If anyone kills a noble (men were divided into nobles, freemen and bond-servants), he will be fined 600 gold coins; for a freeman, 200; for a bond-servant, 30.' Frisian law: `If a noble kills a noble, he will pay 70 gold coins; if a noble kills a freeman, 54 gold coins and one denarius; if a freeman kills a noble, 80 gold coins.' Lombard law (bk. 1, t. 9): `If anyone secretly kills a baron, a freeman, a bond-servant or a handmaid, but only one or two were responsible for the murder itself, they must pay 800 gold coins.'

(444) According to Servius, the Latin expressions, luere, persolvere poenas, etc., recall the very ancient custom of paying for crimes with fines. He comments on Vergil (bk. 1, v. 136): `Luetis, persolvetis. Et hic sermo a pecunia descendit: ANTIQUORUM ENIM POENAE OMNES PECUNIARIAE FUERUNT [You will expiate, you will pay. Here the word refers to money: FOR THE ANCIENTS, ALL PUNISHMENT WAS PECUNIARY].' Fines go back to the time when money was weighed on a scales. Servius again says (in his commentary on the Aeniad, bk. 2, v. 229): `Expendere is derived from the use of money. The ancients always punished financially, as we see. Even in very early times, when MONEY WAS WEIGHED, it was used instead of capital punishment.' He makes the same comment about the word pendere (bk. 6, v. 20).

(445) Melchior Gioia shows his ignorance of penal teaching when he endeavours to criticise the statute of Tortona which substituted the loss of an eye for a fine of 200 lire which a man had to pay for violating a consenting virgin, and the loss of a nose for a fine of 100 lire which the consenting virgin had to pay. He reasons as follows: `There is no need to point out that loss of one's nose is infinitely more deforming than loss of an eye. On the other hand, we should not forget the difference of the sexes. The old codes are full of similar proportional mistakes between punishments' (Dell'ingiuria etc., p. 2, bk. 2, sect. 2, art. 1, c. 2). This decree of the Tortona statute, and many others in the ancient codes, are certainly barbarous and deplorable, but not because of their lack of proportion, as Gioia maintains.

(446) This is also G. D. Romagnosi's opinion. Cf. Genesi del D. P. §1569-1576.

(447) What a great similarity this has to Hebrew laws!

(448) What a beautifully delicate law this is! An innocent family has inevitably suffered by the execution of its father, but the great philosopher thinks that it should be compensated and comforted by civil society and thus confirmed in its own good ways. Modern legislation is still a long way from such just, elevated feelings.

(449) Delle leggi, bk. 9.

(450) `By social worth, I mean the faculty a man has of working for others while working for himself and, while exercising a single kind of work, of enjoying civil independence' (Genesi del D. P., §962).

(451) `No punishment imposed by the law tends to evil. Its normal effect is always to produce one of two results: either it makes better the person punished, or renders him less wayward' (Plato, Delle leggi, bk. 9).

(452) Wine and tobacco were forbidden in French prisons by the law of 19th May, 1819. The many advantages of this enactment were indicated by Tocqueville in his Report on the Progetto di legge relativo al regime penitenziario.

(453) Prisons in France were seriously affected in this way between 1828-1841:

In addition, crime had been organised in France. Criminals come to understand one another's position, and communicate. Their society can have its origin only in prison. All this can be found in Tocqueville's Report, quoted above, and in the accompanying documents, supplied by the Interior Ministry.

(454) Cf. Blackstone, t. 1, p. 238-240.

(455) Baroli, Diritto naturale pubblico interno, §130.

Part Three Contents

Home