6.15. 15. Of the just Proportion between Punishments and Crimes.
It is an essential point, that there should be a certain proportion
in punishments, because it is essential that a great crime should be
avoided rather than a smaller, and that which is more pernicious to
society rather than that which is less.
"An impostor,
[51]
who called himself Constantine Ducas, raised a
great insurrection at Constantinople. He was taken and condemned to be
whipped; but upon informing against several persons of distinction, he
was sentenced to be burned as a calumniator." It is very extraordinary
that they should thus proportion the punishments between the crime of
high treason and that of calumny.
This puts me in mind of a saying of Charles II, King of Great
Britain. He saw a man one day standing in the pillory; upon which he
asked what crime the man had committed. He was answered, "Please your
Majesty, he has written a libel against your ministers." "The fool!"
said the King, "why did he not write against me? They would have done
nothing to him."
"Seventy persons having conspired against the Emperor Basil, he
ordered them to be whipped, and the hair of their heads and beards to be
burned. A stag, one day, having taken hold of him by the girdle with
his horn, one of his retinue drew his sword, cut the girdle, and saved
him; upon which he ordered that person's head to be cut off, for
having," said he, "drawn his sword against his sovereign."
[52]
Who could imagine that the same prince could ever have passed two such different
judgments?
It is a great abuse amongst us to condemn to the same punishment a
person that only robs on the highway and another who robs and murders.
Surely, for the public security, some difference should be made in the
punishment.
In China, those who add murder to robbery are cut in pieces:
[53]
but not so the others; to this difference it is owing that though they rob
in that country they never murder.
In Russia, where the punishment of robbery and murder is the same,
they always murder.
[54]
The dead, say they, tell no tales.
Where there is no difference in the penalty, there should be some in
the expectation of pardon. In England they never murder on the highway,
because robbers have some hopes of transportation, which is not the case
in respect to those that commit murder.
Letters of grace are of excellent use in moderate governments. This
power which the prince has of pardoning, exercised with prudence, is
capable of producing admirable effects. The principle of despotic
government, which neither grants nor receives any pardon, deprives it of
these advantages.
Footnotes
[51]
"Hist. of Nicephorus, patriarch of Constantinople."
[52]
In Nicephorus' History.
[53]
Father Du Halde, tome i, p. 6.
[54]
Present State of Russia, Perry.
