§ 1. Very many human beings are restrained in their duty neither by kindness nor by benefits. Dio speaks rightly: “Human beings endowed with so evil a disposition are overcome by no benefits, since these persons prepared snares for him from whom they had received such great benefits.” For so many evil persons, therefore, as for the sick, the medicine of legal punishments must be prepared.
Hence punishments are so frequent in the state, because very many are evil and must be restrained by fear of punishment. This was so little hidden both now and formerly that Seneca insulted the human race to applause when he said: “He who hates the evil hates everyone.”
In punishment, therefore, care must be taken that it look to the future. For just as one is not worthy of the name of physician if he torments the sick person with loathing for medicines or the pain of cutting and burning because intemperance has afflicted his health, rather than in order to heal him, so too must the legislator act. For no prudent person, as Seneca says in chapter 16 of On Anger, punishes because a sin has been committed, but lest it be committed. Past things cannot be recalled; future things are prevented. Those whom he wishes to make examples of wickedness ending badly he will kill openly—not only that they themselves may perish but that by perishing they may deter others.
§ 2. There were eight kinds of punishments, themselves distributed into various forms: loss, bonds, blows, retaliation, ignominy, exile, servitude, and death. All the same forms are still in use, and in so great a variety of torments they all represent to us the severity of the future judgment.
§ 3. I think that three things must be observed in these matters. First, grave punishments must be established by laws, for they are fit to terrify. If human beings commit those things for which punishments have been established, they will commit much more those for which there are none. Great harms are introduced when, through confidence in impunity, they boldly perpetrate evils.
Next, no one’s power or services toward the state should be so great that he is exempted from the punishments of laws. Unless this is observed, he will become insulting and injurious, judging license to be the reward of his virtue.
§ 4. Clemency must always temper the punishments of laws according to the circumstances of persons. But let us now treat the obligation of penal laws.
The following rules can therefore be established concerning them.
Rule I. A penal law binds the judge to punish the defendant according to it. For he ought not to judge laws but to judge according to laws.
Rule II. Another law can be enacted which binds to punishment before sentence, as do certain censures of excommunication and irregularity.
Rule III. This does not occur when a law threatens punishment or uses a verb in the future tense. But when it is said that punishment is incurred by the deed itself, or from that time—which is not customary in civil laws—the punishment binds conscience before condemnation by the judge. This is much more so when an express clause indicates that the punishment has already been incurred, as frequently occurs in deprivations.
Rule IV. After sentence has been rendered, the defendant is bound to undergo the punishment patiently, without resistance.
Rule V. Indeed, if some action by the defendant is necessary for the punishment, he is bound to it. Even when he has justly been condemned to death, he is bound to leave the prison for the place of punishment and not to fight against the ministers of justice. When prison, exile, or a fine is decreed, he is also bound to execute it.
Rule VI. A law which renders acts invalid can bind conscience so that they are not performed otherwise than according to the form which it prescribed. Yet it does not always prohibit performance of the act, for someone can perform an invalid act;
in many cases, however, it is in no way lawful.
Rule VII. Laws always have this punishment annexed: acts done contrary to the laws—indeed, without the solemnity of the laws when the laws require it for the substance of the matter—are invalid. The law of Theodosius concerning decurions was enacted and concludes thus: “For we will that no pact, no agreement, and no contract be regarded as having been concluded between those who contract when the law prohibits them from contracting.” Yet in civil law such a contract becomes invalid only when this is declared by a sentence.
Rule VIII. The supreme prince, who possesses the right of tempering laws, has power to moderate punishment. Indeed, every punishment is discretionary for the supreme prince, as Baldus says on the final law On Senators. But this must be understood in such a way that he does not depart from equity and just severity.
These rules generally contain those things which pertain to the judge and the defendant. Meanwhile, jurists treat punishments variously. It must be noted that they are imposed sometimes by canon law and sometimes by civil law, although they are often the same.
§ 5. The first punishment is νουθεσία, admonition. It is usually private and the mildest, when the obligation of someone’s duty is recalled to his mind. This is followed by another admonition called παραίνεσις, which has rebuke joined to it, called ἐπιτίμησιν in Greek. In Synesius there is: νουθετήσας οὐκ ἔπεισα, ἐπιτιμήσας ἠρέθισα—“By admonishing I did not persuade; by rebuking I provoked.”
Κόλασις is vengeance rendered to the state, and it regards the correction of the person punished. Τιμωρία is rendered to the person who was injured. Thus Aristotle, book 1 of the Rhetoric: ἡ κόλασις ἕνεκα τοῦ πάσχοντος· τιμωρία ἕνεκα τοῦ ποιοῦντος, ἵνα ἀποπληρωθῇ. Correction is punishment for the sake of the person who suffers it; retribution is for the sake of the person who exacts it, namely, that the punishment be fulfilled.
The state should direct great care to ensuring that judges do not neglect that form of punishment by which they make satisfaction for the losses or injury of others. For injured persons in reality turn their hatred against the prince, as Pausanias did against Philip, if they perceive that justice is denied them.
§ 6. The forms of punishments which are referred to those eight kinds are various.
First there is infamy, when someone’s reputation is marked. Among jurists, reputation is the condition of unimpaired dignity approved by laws and customs. When it is diminished or removed, the person who has been marked is rendered infamous, and every gate of dignity is closed to him. Law 2 On Dignities; law 12 of the Code under that title. Infamy is either of law or of fact; infamy of law belongs either to canon or imperial law. Under canon law, murderers, evil-doers, thieves, sacrilegious persons, robbers, adulterers, incestuous persons, poisoners, perjurers, false witnesses, and others like them are infamous, as are heretics, actors, plunderers of ecclesiastical goods, calumniators, and simoniacs. More persons are infamous under civil law, although not all are infamous under both systems.
Next is deposition or degradation, whether from an office, a benefice, or a rank; confiscation of goods; confinement in a monastery; prison; condemnation to public labor or the mines; servitude; and exile. All these are of various kinds.
In this class care must be taken that persons who can avenge themselves and harm the state are not punished by infamy or exile. Greece and Italy have experienced this.
Next, another grave and useful kind of punishment, extremely customary in former times but now rare, appears altogether worthy of restoration: condemnation to the mines, to public labor, to service in a public work, to saltworks, sulfur works, or sand pits. Women were condemned to service. Now almost the only remaining kind, and not even in all places, is condemnation to the galleys, and elsewhere to various labors. If the other punishments also were renewed in place of temporary or perpetual prisons, the auction block, public chastisement, branding, mutilation of ears, and exile—which now, amid divided territories and so great a multitude and rivalry of dominions, neither constitutes a great punishment nor presents a danger—if, that is, laborious punishments which recall the mind to duty were renewed, fewer crimes would be committed and the state would be aided in expense. But I shall treat this elsewhere.