CAPITAL PUNISHMENT.
This useless prodigality of punishments, by which men have never been
made any better, has driven me to examine whether the punishment
of death be really useful and just in a well organised government.
What kind of right can that be which men claim for the slaughter of
their fellow-beings? Certainly not that right which is the source of
sovereignty and of laws. For these are nothing but the sum-total of
the smallest portions of individual liberty, and represent the general
will, that is, the aggregate of individual wills. But who ever wished to
leave to other men the option of killing him? How in the least possible
sacrifice of each man’s liberty can there be a sacrifice of the greatest
of all goods, namely, of life? And if there could be that sacrifice, how
would such a principle accord with the other, that a man is not the
master of his own life? Yet he must have been so, could he have given to
himself or to society as a body this right of killing him.
The death penalty therefore is not a right; I have proved that it cannot
be so; but it is a war of a nation against one of its members, because
his annihilation is deemed necessary and expedient. But if I can show
that his death is neither necessary nor expedient, I shall have won the
cause of humanity.
The death of a citizen can only be deemed necessary for two reasons.
The first is when, though deprived of his personal freedom, he has
still such connections and power as threaten the national security;
when his existence is capable of producing a dangerous revolution in
the established form of government. The death of a citizen becomes
then necessary when the nation is recovering or losing its liberty, or
in a time of anarchy, when confusion takes the place of laws; but in
times when the laws hold undisturbed sway, when the form of government
corresponds with the wishes of a united nation, and is defended
internally and externally by force, and by opinion which is perhaps even
stronger than force, where the supreme power rests only with the real
sovereign, and riches serve to purchase pleasures but not places, I see
no necessity for destroying a citizen, except when his death might be the
real and only restraint for diverting others from committing crimes; this
latter case constituting the second reason for which one may believe
capital punishment to be both just and necessary.
Since mankind generally, suspicious always of the language of reason, but
ready to bow to that of authority, remain unpersuaded by the experience
of all ages, in which the supreme punishment has never diverted resolute
men from committing offences against society; since also they are equally
unmoved by the example of the Romans and by twenty years of the reign
of the Empress Elizabeth of Russia, during which she presented this
illustrious example to the fathers of their people, an example which
is at least equivalent to many conquests bought by the blood of her
country’s sons, it is sufficient merely to consult human nature itself,
to perceive the truth of the assertion I have made.
The greatest effect that any punishment has upon the human mind is not
to be measured by its intensity but by its duration, for our sensibility
is more easily and permanently affected by very slight but repeated
impressions than by a strong but brief shock. Habit holds universal sway
over every sentient being, and as we speak and walk and satisfy our
needs by its aid, so moral ideas only stamp themselves on our mind by
long and repeated impressions. It is not the terrible yet brief sight of
a criminal’s death, but the long and painful example of a man deprived
of his liberty, who, having become as it were a beast of burthen,
repays with his toil the society he has offended, which is the strongest
restraint from crimes. Far more potent than the fear of death, which men
ever have before their eyes in the remote distance, is the thought, so
efficacious from its constant recurrence: ‘I myself shall be reduced to
as long and miserable a condition if I commit similar misdeeds.’
Capital punishment makes an impression in prospect which, with all
its force, does not fully meet that ready spirit of forgetfulness, so
natural to man even in his most important concerns, and so liable to
be accelerated by his passions. As a general rule, men are startled
by the sight of violent sufferings, but not for long, and therefore
such impressions are wont so to transform them as to make of ordinary
men either Persians or Spartans; but in a free and settled government
impressions should rather be frequent than strong.
Capital punishment becomes a spectacle for the majority of mankind, and
a subject for compassion and abhorrence for others; the minds of the
spectators are more filled with these feelings than with the wholesome
terror the law pretends to inspire. But in moderate and continuing
penalties the latter is the predominant feeling, because it is the only
one. The limit, which the legislator should affix to the severity of
penalties, appears to lie in the first signs of a feeling of compassion
becoming uppermost in the minds of the spectators, when they look upon
the punishment rather as their own than as that of the criminal.
In order that a punishment may be just, it must contain only such
degrees of intensity as suffice to deter men from crimes. But as there
is no one who on reflection would choose the total and perpetual loss
of his liberty, however great the advantages offered him by a crime,
the intensity of the punishment of servitude for life, substituted for
capital punishment, has that in it which is sufficient to daunt the most
determined courage. I will add that it is even more deterrent than death.
Very many men face death calmly and firmly, some from fanaticism, some
from vanity, which almost always attends a man to the tomb; others from a
last desperate attempt either no longer to live or to escape from their
misery; but neither fanaticism nor vanity have any place among fetters
and chains, under the stick, under the yoke, in a cage of iron; the
wretch thus punished is so far from terminating his miseries that with
his punishment he only begins them.
The mind of man offers more resistance to violence and to extreme but
brief pains than it does to time and to incessant weariness; for whilst
it can, so to speak, gather itself together for a moment to repel the
former, its vigorous elasticity is insufficient to resist the long and
repeated action of the latter. In the case of capital punishment, each
example presented of it is all that a single crime affords; in penal
servitude for life, a single crime serves to present numerous and lasting
warnings. And if it be important that the power of the laws should often
be witnessed, there ought to be no long intervals between the examples
of the death penalty; but this would presuppose the frequency of crimes,
so that, to render the punishment effective, it must not make on men
all the impression that it ought to make, in other words, it must be
useful and not useful at the same time. And should it be objected that
perpetual servitude is as painful as death, and therefore equally cruel,
I will reply, that, taking into consideration all the unhappy moments of
servitude, it will perhaps be even more painful than death; but whilst
these moments are spread over the whole of a lifetime, death exercises
all its force in a single moment. There is also this advantage in penal
servitude, that it has more terrors for him who sees it than for him
who suffers it, for the former thinks of the whole sum-total of unhappy
moments, whilst the latter, by the unhappiness of the present moment, has
his thoughts diverted from that which is to come. All evils are magnified
in imagination, and every sufferer finds resources and consolations
unknown to and unbelieved in by spectators, who substitute their own
sensibility for the hardened soul of a criminal.
The following is the kind of reasoning adopted by the thief or the
assassin, whose only motives for not breaking the laws are the gallows
or the wheel. (I know that the analysis of one’s own thoughts is an art
only learnt by education, but a thief does not the less act according to
certain principles because he is unable to express them). ‘Of what sort,’
he argues, ‘are these laws that I am bound to observe, that leave so
great an interval between myself and the rich man? He denies me the penny
I ask of him, and excuses himself by ordering from me a work of which
he himself knows nothing. Who has made these laws? Were they not made
by rich and powerful men, who have never deigned to visit the wretched
hovels of the poor, who have never divided a musty loaf of bread amid
the innocent cries of famished children and the tears of a wife? Let
us break these bonds, which are fatal to the greater number, and only
useful to a few indolent tyrants; let us attack injustice in its source.
I will return to my state of natural independence; I will live for some
time happy and free on the fruits of my courage and address; and if
the day should ever come when I have to suffer and repent for it, the
time of suffering will be short, and I shall have one day of misery for
many years of liberty and pleasure. As the king of a small band, I will
correct the errors of fortune, and see these tyrants pale and tremble
before one, whom in their insolent arrogance they rated lower than their
horses or their dogs.’ Then religion hovers before the mind of the
criminal, who turns everything to a bad use, and offering him a facile
repentance and an almost certain eternity of bliss does much to diminish
in his eyes the horror of that last tragedy of all.
But the man who sees in prospect a great number of years, or perhaps the
whole of his life, to be passed in servitude and suffering before the
eyes of fellow-citizens with whom he is living in freedom and friendship,
the slave of those laws which had once protected him, makes a useful
comparison of all these circumstances with the uncertain result of his
crimes and with the shortness of the time for which he would enjoy their
fruits. The ever present example of those whom he actually sees the
victims of their own imprudence, impresses him much more strongly than
the sight of a punishment which hardens rather than corrects him.
Capital punishment is injurious by the example of barbarity it presents.
If human passions, or the necessities of war, have taught men to shed
one another’s blood, the laws, which are intended to moderate human
conduct, ought not to extend the savage example, which in the case of a
legal execution is all the more baneful in that it is carried out with
studied formalities. To me it seems an absurdity, that the laws, which
are the expression of the public will, which abhor and which punish
murder, should themselves commit one; and that, to deter citizens from
private assassination, they should themselves order a public murder. What
are the true and the most useful laws? Are they not those covenants and
conditions which all would wish observed and proposed, when the incessant
voice of private interest is hushed or is united with the interest of the
public? What are every man’s feelings about capital punishment? Let us
read them in the gestures of indignation and scorn with which everyone
looks upon the executioner, who is, after all, an innocent administrator
of the public will, a good citizen contributory to the public welfare,
an instrument as necessary for the internal security of a State as
brave soldiers are for its external. What, then, is the source of this
contradiction; and why is this feeling, in spite of reason, ineradicable
in mankind? Because men in their most secret hearts, that part of them
which more than any other still preserves the original form of their
first nature, have ever believed that their lives lie at no one’s
disposal, save in that of necessity alone, which, with its iron sceptre,
rules the universe.
What should men think when they see wise magistrates and grave priests
of justice with calm indifference causing a criminal to be dragged
by their slow procedure to death; or when they see a judge, whilst a
miserable wretch in the convulsions of his last agonies is awaiting the
fatal blow, pass away coldly and unfeelingly, perhaps even with a secret
satisfaction in his authority, to enjoy the comforts and pleasures of
life? ‘Ah’ they will say, ‘these laws are but the pretexts of force,
and the studied cruel formalities of justice are but a conventional
language, used for the purpose of immolating us with greater safety, like
victims destined in sacrifice to the insatiable idol of tyranny. That
assassination which they preach to us as so terrible a misdeed we see
nevertheless employed by them without either scruple or passion. Let us
profit by the example. A violent death seemed to us a terrible thing in
the descriptions of it that were made to us, but we see it is a matter of
a moment. How much less terrible will it be for a man who, not expecting
it, is spared all that there is of painful in it.’
Such are the fatal arguments employed, if not clearly, at least vaguely,
by men disposed to crimes, among whom, as we have seen, the abuse of
religion is more potent than religion itself.
If I am confronted with the example of almost all ages and almost all
nations who have inflicted the punishment of death upon some crimes, I
will reply, that the example avails nothing before truth, against which
there is no prescription of time; and that the history of mankind conveys
to us the idea of an immense sea of errors, among which a few truths,
confusedly and at long intervals, float on the surface. Human sacrifices
were once common to almost all nations, yet who for that reason will dare
defend them? That some few states, and for a short time only, should
have abstained from inflicting death, rather favours my argument than
otherwise, because such a fact is in keeping with the lot of all great
truths, whose duration is but as of a lightning flash in comparison with
the long and darksome night that envelops mankind. That happy time has
not yet arrived when truth, as error has hitherto done, shall belong to
the majority of men; and from this universal law of the reign of error
those truths alone have hitherto been exempt, which supreme wisdom has
seen fit to distinguish from others, by making them the subject of a
special revelation.
The voice of a philosopher is too feeble against the noise and cries
of so many followers of blind custom, but the few wise men scattered
over the face of the earth will respond to me from their inmost hearts;
and, amid the many obstacles that keep it from a monarch, should truth
perchance arrive in spite of him at his throne, let him know that it
comes there attended by the secret wishes of all men; let him know that
before his praises the bloody fame of conquerors will be silenced, and
that posterity, which is just, will assign him the foremost place among
the pacific triumphs of a Titus, an Antonine, or a Trajan.
Happy were humanity, if laws were now dictated to it for the first
time, when we see on the thrones of Europe beneficent monarchs, men
who encourage the virtues of peace, the sciences and the arts, who are
fathers to their people, who are crowned citizens, and the increase of
whose authority forms the happiness of their subjects, because it removes
that intermediate despotism, more cruel because less secure, by which the
people’s wishes, always sincere, and always attended to when they can
reach the throne, have been usually intercepted and suppressed. If they,
I say, suffer the ancient laws to exist, it is owing to the infinite
difficulties of removing from errors the revered rust of many ages; which
is a reason for enlightened citizens to desire with all the greater
ardour the continual increase of their authority.