Wilhelm von Humboldt

“ For the kinds of confidence that may be extended to a man are, according to different cases, so infinitely manifold in their nature, that I hardly know of any crime which would shut out the criminal from the whole of these at once. But there is always a general expression of mistrust in such cases, and the man of whom it would be remembered only on parallel occasions that he had transgressed any particular law, carries about with him at all times an air of suspicion. ”

“ For a man's honour and the good opinion of his fellow-citizens, is something which lies wholly beyond the reach of the political power. At most, then, such a punishment must be reduced to this: that the State may deprive the criminal of the characteristic signs of its own esteem and confidence, and leave to others the option of doing this with impunity. ”

“ For the State may content itself with exercising the most watchful vigilance on every unlawful project, and defeating it before it has been put into execution; or, advancing further, it may prohibit actions which are harmless in themselves, but which tempt to the commission of crime, or afford opportunities for resolving upon criminal actions. This latter policy, again, tends to encroach on the liberty of the citizens; manifests a distrust on the part of the State which not only operates hurtfully on the character of the citizens, but goes to defeat the very end in view ”

“ The efficiency of punishments depends entirely on the impression they make respectively on the soul of the criminal; and we might almost affirm that, in a regularly graduated series, it would be indifferent where we might determine to pause as at the highest degree, since the actual efficiency of a punishment does not so much depend on its absolute nature, as on the relative place it occupies on the scale of punishments, and since that which the State declares to be the highest punishment is readily acknowledged to be such. ”

“ But it also follows as clearly that all such actions deserve a just measure of punishment. For (seeing that they disturb and destroy that which is most essential to human enjoyment as well as development) not only is their hurtfulness too serious, that we should not resist their influence by every means consistent with the end and accordant with morality, but it follows, further, from the principles of right, that every one must suffer the punishment so far to invade the province of his own right as the crime he has committed has penetrated into that of the other. ”

“ Lastly, before concluding this subject, I ought to observe that all criminal laws, as well those which fix the punishments as those which arrange the forms of proceeding, must be fully and clearly made known to all the citizens without distinction. I am well aware that a contrary practice has been repeatedly recommended, and the reason assigned for it is that no option should be afforded to the citizen of buying, as it were, the advantage gained by the unlawful action, with the evil of the punishment voluntarily undergone. ”

“ This is, at the same time, the only way to act worthily on man's character, since we must not lead or compel him to certain actions, but only bring him to them by a consideration of the consequences, which, according to the nature of things, must flow inevitably from his conduct. Hence, instead of all the more artificial and complicated means for averting crime, I would never propose anything but good and well-matured laws ”

“ For as the State is not allowed to propose any other end to its activity than the security of its subjects, it may not impose restrictions on any other actions than those which run counter to this ultimate object. ”

“ Now, how hard such a punishment must be, we know from the feeling so common to all, that without the confidence of one's fellow-men life itself ceases to be desirable. Moreover, many other difficulties present themselves when we look more closely at the way in which such a punishment shall be applied. Mistrust of honesty will always follow where the want of it has been manifested. ”

“ It becomes necessary to examine, in the last place (now that we are treating of criminal law) , a question that has assumed a high degree of importance by the efforts of modern legislation; the question, namely, as to how far the State is entitled or obliged to prevent crimes uncommitted. There is perhaps no public project which is animated by such a philanthropic design, and the sympathy which it inspires in every man of feeling is somewhat dangerous to the impartiality of the inquiry. ”

“ It has, I trust, been sufficiently shown, in what was said above, that no man is justified in injuring another, under the name of punishment, any further than he has himself suffered by the crime. If there were no legal determination of punishment, the criminal ought to expect about the same extent of injury as he would think equal to his crime ”

“ Now, where the citizen enjoys such ample freedom as that which these pages advise, he will live in greater comfort, his soul will become more calm and composed, his imagination more beautiful, and punishment will admit of much relaxation in severity, while it loses none of its real force and efficiency. ”

“ Every citizen must be in a position to act without hindrance and just as he pleases, so long as he does not transgress the law; every one must have the right to maintain, in reply to every other, and even against all probability in so far as this can be judged of by another, "However closely I approach the danger of transgressing the law, yet will I not succumb." ”

“ No less difficult is the question, as to how long the punishment shall last. Every justly-thinking man would undoubtedly wish to confine its operation to a certain period. But will the judge be able to contrive that one who has so long borne the load of his fellow-citizens' mistrust, may at once regain their confidence on the expiration of a certain day? Lastly, it does not agree with the principles which run through this essay, that the State should give a definite direction to the opinions of the citizens in any way whatever. ”

“ Hence, the severest punishment must be reserved for him who has violated the most important right of the State itself; one less severe must be inflicted on him who has only violated an equally important right of an individual citizen; and, lastly, one still milder must be applied to him who has only transgressed a law designed to prevent such injuries.
3. Criminal laws are to be applied to him only who has transgressed them intentionally or culpably, and only in the degree in which the criminal thereby showed a disregard for the rights of others. ”

“ One of the chief means for preserving security is the punishment of transgressions of the laws. The State must inflict punishment on every action which infringes on the rights of the citizens, and (in so far as its legislation is guided by this principle alone) every action in which the transgression of one of its laws is implied. ”

“ How much the attainment of all other objects which man proposes to his endeavours, would sutler from the adoption of such a scale as that to which we referred—how much it contradicts all the principles laid down in this essay, it is needless for me to show. Again, the equality or correspondency between crime and punishment which is demanded by the reasons we have developed, cannot be absolutely determined; we cannot decide in a general way that this or that crime is just deserving of this or that particular punishment. ”

“ He must therefore draw a careful distinction between the citizen who is only suspected, and the criminal who is actually convicted, never treating the former like the latter; and, in fine, must never deprive even the convicted criminal of the enjoyment of his rights as a man and as a citizen, since he cannot lose the former but with his life, and the latter only by a legal, judicial exclusion from the political union. ”

“ For in a State which does not give rise to such critical circumstances by the very nature of its own constitution, but which, on the contrary, secures such a degree of freedom to its citizens as that which it is the design of these pages to recommend, it is hardly possible in general that such situations as those we describe should arise, without finding a sufficient remedy in the voluntary assistance of the citizens themselves, and thereby rendering any State interference unnecessary; the cause in such a case must be looked for in the conduct of the man himself. ”

“ For the forms of morality and observance of law are infinitely different and varying; and if another person decides that such or such a course of conduct must lead to unlawful actions, he follows his own view, which, however just it may be, is still only the view of one man. ”

“ And all others, whether they are designed to counteract the causes of crime, or to prevent actions, harmless in themselves, but often leading to criminal offences, are wholly beyond the State's sphere of action. ”

“ For, firstly, it does not come within the proper province of the law to recommend virtues, but only to prescribe duties which can be enforced; and it will frequently happen that virtue will lose by such an attempt, since man only enjoys a course of virtuous action when it proceeds from his own free will. And, secondly, every mere request contained in a law, and every admonition or advice which a superior gives in virtue of it, is a positive command, which theoretically, it is true, men are not forced observe, but which in reality they always do obey. ”

“ Lastly, we must take into account how many circumstances may oblige, and how many motives may incite, men to follow such advice, even wholly contrary to their convictions. Of this kind is usually the influence which the State exercises over those destined for the transaction of its affairs, and through whom it endeavours, at the same time, to operate on the other citizens. Since such persons are leagued with the State by special contracts, it is certain that it can exercise greater rights over them than over the other citizens. ”

“ By such a course the idea is at the same time banished from the minds of the citizens that they are treated arbitrarily by the State, and that its conduct towards them is not grounded on proper motives—a prejudice easily engendered where severe punishments are inflicted on actions which either really have only a remote influence on security, or whose connection with the latter is less easy to understand. ”

“ Now all prevention of crime must be directed to its causes. But these causes, which are so infinitely varied, might be generally expressed perhaps as the feeling, not sufficiently resisted by reason, by the disproportion between the inclinations of the agent and the means in his power for gratifying them. ”

“ But it may appoint proper officers to be on the watch in public places where misdemeanors are most commonly committed; establish public prosecutors, who may, in virtue of their office, proceed against suspected persons; and, lastly, make it legally binding on all the citizens to lend their assistance to the task, by denouncing not only crimes which are contemplated but not yet committed, but those which are already perpetrated, and the criminal agents concerned in them. ”

“ The most severe punishments, therefore, should be allotted to those crimes which really infringe on the rights of others, and the milder ones to transgressions of those laws which are simply designed to prevent such infringements, however important and necessary those laws may be of themselves. ”

“ For it is only by such a correspondency that harmony is preserved between man's internal moral development and the success of political arrangements, without which even the most artificial legislation will always fail in its end. ”

“ For the less bodily painful and terrible they are, the more do they become so in a moral point of view; while excessive physical suffering tends to lessen the sense of shame in the sufferer himself, and, in the spectator, that of indignation and censure. And from this we see that mild punishments might be much more frequently employed than at first sight would seem possible; since they gain, on the other hand, a compensating moral weight and efficiency in proportion to their mildness. ”

“ I have hitherto confined myself to the supposition that the persons to whom such a supervision as that of which we speak is entrusted do not produce conviction, but only operate through the medium of external arguments. ”

“ It is with this view that the most enlightened modern legislators have endeavoured to make punishments at the same time reformatory in their operation. Now it is certain, not only that everything should be removed from the punishment of criminals at all calculated to do harm to their morality, but also that every means of correcting tbeir ideas and improving their feelings must be left open to them, so long as it does not counteract the object designed by the punishment. But instruction is not to be thrust even on the criminal ”

“ For to derive it from a mutual contract is not only useless, but is also attended with this difficulty,—that capital punishment, for example, which is clearly necessary at some times and in certain local circumstances, could not be justified with such a supposition, and that every criminal could escape his punishment if before undergoing it he separated himself from the social contract ”

“ But that it is well to exercise an influence on one's fellow-citizens and their morality through the medium of a living example and convincing persuasion, is too manifest to be expressly repeated. In any case, therefore, where such an institution produces these results, the foregoing reasoning cannot apply. ”

“ But it follows also, on the other hand, from this same principle, that he may justly resist every punishment exceeding the measure of his crime, however certain it might be that this punishment alone, and no milder one whatever, would be efficacious. There is manifestly an intimate connection in human ideas between the internal feeling of right and the enjoyment of external happiness, and the former seems to man to entitle him to the latter. ”

“ If there seems to be a contradiction between this principle and that laid down with regard to the actions of individual men, it must not be forgotten that the previous question was of such actions as in their immediate consequences were likely to infringe on the rights of others, and that here we are considering those from which, in order to produce this effect, a second action must arise. ”