But the punishment of death is not authorised by any right; for I have demonstrated that no such right exists. It is therefore a war of a whole nation against a citizen whose destruction they consider as necessary or useful to the general good. But if I can further demonstrate that it is neither necessary nor useful, I shall have gained the cause of humanity.
The death of a citizen cannot be necessary but in one case: when, though deprived of his liberty, he has such power and connections as may endanger the security of the nation; when his existence may produce a dangerous revolution in the established form of government. But, even in this case, it can only be necessary when a nation is on the verge of recovering or losing its liberty, or in times of absolute anarchy, when the disorders themselves hold the place of laws: but in a reign of tranquillity, in a form of government approved by the united wishes of the nation, in a state well fortified from enemies without and supported by strength within, and opinion, perhaps more efficacious, where all power is lodged in the hands of a true sovereign, where riches can purchase pleasures and not authority, there can be no necessity for taking away the life of a subject.
If the experience of all ages be not sufficient to prove, that the punishment of death has never prevented determined men from injuring society, if the example of the Romans, if twenty years' reign of Elizabeth, empress of Russia, in which she gave the fathers of their country an example more illustrious than many conquests bought with blood; if, I say, all this be not sufficient to persuade mankind, who always suspect the voice of reason, and who choose rather to be led by authority, let us consult human nature in proof of my assertion.
It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance; for our sensibility is more easily and more powerfully affected by weak but repeated impressions, than by a violent but momentary impulse. The power of habit is universal over every sensible being. As it is by that we learn to speak, to walk, and to satisfy our necessities, so the ideas of morality are stamped on our minds by repeated impression. The death of a criminal is a terrible but momentary spectacle, and therefore a less efficacious method of deterring others than the continued example of a man deprived of his liberty, condemned, as a beast of burden, to repair, by his labour, the injury he has done to society, If I commit such a crime, says the spectator to himself, I shall be reduced to that miserable condition for the rest of my life. A much more powerful preventive than the fear of death which men always behold in distant obscurity.
The terrors of death make so slight an impression, that it has not force enough to withstand the forgetfulness natural to mankind, even in the most essential things, especially when assisted by the passions. Violent impressions surprise us, but their effect is momentary; they are fit to produce those revolutions which instantly transform a common man into a Lacedaemonian or a Persian; but in a free and quiet government they ought to be rather frequent than strong.
The execution of a criminal is to the multitude a spectacle which in some excites compassion mixed with indignation. These sentiments occupy the mind much more than that salutary terror which the laws endeavor to inspire; but, in the contemplation of continued suffering, terror is the only, or at least predominant sensation. The severity of a punishment should be just sufficient to excite compassion in the spectators, as it is intended more for them than for the criminal.
A punishment, to be just, should have only that degree of severity which is sufficient to deter others. Now there is no man whop upon the least reflection, would put in competition the total and perpetual loss of his liberty, with the greatest advantages he could possibly obtain in consequence of a crime. Perpetual slavery, then, has in it all that is necessary to deter the most hardened and determined, as much as the punishment of death. I say it has more. There are many who can look upon death with intrepidity and firmness, some through fanaticism, and others through vanity, which attends us even to the grave; others from a desperate resolution, either to get rid of their misery, or cease to live: but fanaticism and vanity forsake the criminal in slavery, in chains and fetters, in an iron cage, and despair seems rather the beginning than the end of their misery. The mind, by collecting itself and uniting all its force, can, for a moment, repel assailing grief; but its most vigorous efforts are insufficient to resist perpetual wretchedness.
In all nations, where death is used as a punishment, every example supposes a new crime committed; whereas, in perpetual slavery, every criminal affords a frequent and lasting example; and if it be necessary that men should often be witnesses of the power of the laws, criminals should often be put to death: but this supposes a frequency of crimes; and from hence this punishment will cease to have its effect, so that it must be useful and useless at the same time.
I shall be told that perpetual slavery is as painful a punishment as death, and therefore as cruel. I answer, that if all the miserable moments in the life of a slave were collected into one point, it would be a more cruel punishment than any other; but these are scattered through his whole life, whilst the pain of death exerts all its force in a moment. There is also another advantage in the punishment of slavery, which is, that it is more terrible to the spectator than to the sufferer himself; for the spectator considers the sum of all his wretched moments whilst the sufferer, by the misery of the present, is prevented from thinking of the future. All evils are increased by the imagination, and the sufferer finds resources and consolations of which the spectators are ignorant, who judge by their own sensibility of what passes in a mind by habit grown callous to misfortune.
Let us, for a moment, attend to the reasoning of a robber or assassin, who is deterred from violating the laws by the gibbet or the wheel. I am sensible, that to develop the sentiments of one's own heart is an art which education only can teach; but although a villain may not be able to give a clear account of his principles, they nevertheless influence his conduct. He reasons thus: "What are these laws that I am bound to respect, which make so great a difference between me and the rich man? He refuses me the farthing I ask of him, and excuses himself by bidding me have recourse to labour, with which he is unacquainted.''
"Who made these laws? The rich and the great, who never deigned to visit the miserable hut of the poor, who have never seen him dividing a piece of mouldy bread, amidst the cries of his famished children and the tears of his wife. Let us break those ties, fatal to the greatest part of mankind, and only useful to a few indolent tyrants. Let us attack injustice at its source. I will return to my natural state of independence. I shall live free and happy on the fruits of my courage and industry. A day of pain and repentance may come, but it will be short; and for an hour of grief I shall enjoy years of pleasure and liberty. King of a small number as determined as myself, I will correct the mistakes of fortune, and I shall see those tyrants grow pale and tremble at the sight of him, whom, with insulting pride, they would not suffer to rank with their dogs and horses.''
Religion then presents itself to the mind of this lawless villain, and, promising him almost a certainty of eternal happiness upon the easy terms of repentance, contributes much to lessen the horror of the last scene of the tragedy.
But he who foresees that he must pass a great number of years, even his whole life, in pain and slavery, a slave to those laws by which he, was protected, in sight of his fellow-citizens, with whom he lives in freedom and society, makes an useful comparison between those evils, the uncertainty of his success, and the shortness of the time in which he shall enjoy the fruits of his transgression. The example of those wretches, continually before his eyes, makes a much greater impression on him than a punishment, which instead of correcting, makes him more obdurate.
The punishment of death is pernicious to society, from the example of barbarity it affords. If the passions, or the necessity of war, have taught men to shed the blood of their fellow creatures, the laws, which are intended to moderate the ferocity of mankind, should not increase it by examples of barbarity, the more horrible as this punishment is usually attended with formal pageantry. Is it not absurd, that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves? What are the true and most useful laws? Those compacts and conditions which all would propose and observe in those moments when private interest is silent, or combined with that of the public. What are the natural sentiments of every person concerning the punishment of death? We may read them in the contempt and indignation with which every one looks on the executioner, who is nevertheless an innocent executor of the public will, a good citizen, who contributes to the advantage of society, the instrument of the general security within, as good soldiers are without. What then is the origin of this contradiction? Why is this sentiment of mankind indelible to the scandal of reason? It is, that, in a secret corner of the mind, in which the original impressions of nature are still preserved, men discover a sentiment which tells them, that their lives are not lawfully in the power of any one, but of that necessity only which with its iron sceptre rules the universe.
What must men think, when they see wise magistrates and grave ministers of justice, with indifference and tranquillity, dragging a criminal to death, and whilst a wretch trembles with agony, expecting the fatal stroke, the judge, who has condemned him, with the coldest insensibility, and perhaps with no small gratification from the exertion of his authority, quits his tribunal, to enjoy the comforts and pleasures of life? They will say, "Ah! those cruel formalities of justice are a cloak to tyranny, they are a secret language, a solemn veil, intended to conceal the sword by which we are sacrificed to the insatiable idol of despotism. Murder, which they would represent to us an horrible crime, we see practised by them without repugnance or remorse. Let us follow their example. A violent death appeared terrible in their descriptions, but we see that it is the affair of a moment. It will be still less terrible to him who, not expecting it, escapes almost all the pain.'' Such is the fatal though absurd reasonings of men who are disposed to commit crimes, on whom the abuse of religion has more influence than religion itself.
If it be objected, that almost all nations in all ages have punished certain crimes with death, I answer, that the force of these examples vanishes when opposed to truth, against which prescription is urged in vain. The history of mankind is an immense sea of errors, in which a few obscure truths may here and there be found.
But human sacrifices have also been common in almost all nations. That some societies only it either few in number, or for a very short time, abstained from the punishment of death, is rather favourable to my argument; for such is the fate of great truths, that their duration is only as a flash of lightning in the long and dark night of error. The happy time is not yet arrived, when truth, as falsehood has been hitherto, shall be the portion of the greatest number.
I am sensible that the voice of one philosopher is too weak to be heard amidst the clamours of a multitude, blindly influenced by custom; but there is a small number of sages scattered on the face of the earth, who will echo to me from the bottom of their hearts; and if these truths should happily force their way to the thrones of princes be it known to them, that they come attended with the secret wishes of all mankind; and tell the sovereign who deigns them a gracious reception, that his fame shall outshine the glory of conquerors, and that equitable posterity will exalt his peaceful trophies above those of a Titus, an Antoninus, or a Trajan.
How happy were mankind if laws were now to be first formed! now that
we see on the thrones of Europe benevolent monarchs, friends to the virtues
of peace, to the arts and sciences, fathers of their people, though crowned,
yet citizens; the increase of whose authority augments the happiness of
their subjects, by destroying that inter. mediate despotism which intercepts
the prayers of the people to the throne. If these humane princes have suffered
the old laws to subsist, it is doubtless because they are deterred by the
numberless obstacles which oppose the subversion of errors established
by the sanction of many ages; and therefore every wise citizen will wish
for the increase of their authority.
Imprisonment is a punishment which differs from all others in this particular, that it necessarily precedes conviction; but this difference does not destroy a circumstance which is essential and common to it with all other punishments, viz. that it should never be inflicted but when ordained by the law. The law should therefore determine the crime, the presumption, and the evidence sufficient to subject the accused to imprisonment and examination. Public report, his flight, his extrajudicial confession, that of an accomplice, menaces, and his constant enmity with the person injured, the circumstances of the crime, and such other evidence, may be sufficient to justify the imprisonment of a citizen. But the nature of this evidence should be determined by the laws, and not by the magistrates, whose decrees are always contrary to political liberty, when they are not particular applications of a general maxim of the public code. When punishments become less severe, and prisons less horrible, when compassion and humanity shall penetrate the iron gates of dungeons, and direct the obdurate and inexorable ministers of justice, the laws may then be satisfied with weaker evidence for imprisonment.
A person accused, imprisoned, tried, and acquitted, ought not to be
branded with any degree of infamy. Among the Romans we see that many accused
of very great crimes, and afterwards declared innocent, were respected
by the people, and honoured with employments in the state. But why is the
fate of an innocent person so different in this age? It is because the
present system of penal laws presents to our minds an idea of power rather
than of justice: it is because the accused and convicted are thrown indiscriminately
into the same prison? because imprisonment is rather a punishment than
a means of securing the person of the accused; and because the interior
power, which defends the laws, and the exterior, which defends the throne
and kingdom, are separate, when they should be united. If the first were
(under the common authority of the laws) combined with the right of judging,
but not however immediately dependent on the magistrate, the pomp that
attends a military corps would take off the infamy, which, like all popular
opinions, is more attached to the manner and form than to the thing itself,
as may be seen in military imprisonment, which, in the common opinion,
is not so disgraceful as the civil. But the barbarity and ferocity of our
ancestors, the hunters of the north, still subsist among the people in
our customs and our laws, which are always several ages behind the actual
refinements of a nation.
The time for inquiry and for justification should be fixed by the laws, and not by the judge, who, in that case, would become legislator. With regard to atrocious crimes, which are long remembered, when they are once proved, if the criminal have fled, no time should be allowed; but in less considerable and more obscure crimes, a time should be fixed, after which the delinquent should be no longer uncertain of his fate: for, in the latter case, the length of time, in which the crime is almost forgotten, prevents the example of impunity, and allows the criminal to amend, and become a better member of society.
General principles will here be sufficient, it being impossible to fix precisely the limits of time for any given legislation, or for any society in any particular circumstance. I shall only add, that, in a nation willing to prove the utility of moderate punishment, laws which, according to the nature of the crime, increase or diminish the time of inquiry and justification, considering the imprisonment or the voluntary exile of the criminal as a part of the punishment, will form an easy division of a small number of mild punishments for a great number of crimes.
But it must be observed, the time for inquiry and justification should not increase in direct proportion to the atrociousness of crimes; for the probability of such crimes having been committed is inversely as their atrociousness. Therefore the time for inquiring ought, in some cases, to be diminished, and that for justification increased, et vice versa. This may appear to contradict what I have said above, namely, that equal punishments may be decreed by unequal crimes, by considering the time allowed the criminal or the prison as a punishment.
In order to explain this idea, I shall divide crimes into two classes. The first comprehends homicide, and all greater crimes; the second crimes of an inferior degree. This distinction is founded in human nature. The preservation of life is a natural right; the preservation of property is a right of society. The motives that induce men to shake off the natural sentiment of compassion, which must be destroyed before great crimes can be committed, are much less in number than those by which, from the natural desire of being happy, they are instigated to violate a right which is not founded in the heart of man, but is the work of society. The different degrees of probability in these two classes, require that they should be regulated on different principles. In the greatest crimes, as they are less frequent, and the probability of the innocence of the accused being greater, the time allowed him for his justification should be greater, and the time of inquiry less. For by hastening the definitive sentence, the flattering hopes of impunity are destroyed, which are more dangerous as the crime is more atrocious. On the contrary, in crimes of less importance, the probability of the innocence being less, the time of inquiry should be greater, and that of justification less, as impunity is not so dangerous.
But this division of crimes into two classes should not be admitted, if the consequences of impunity were in proportion to the probability of the crime. It should be considered, that a person accused, whose guilt or innocence is not determined for want of proofs, may be again imprisoned for the same crime, and be subject to a new trial, if fresh evidence arises within the time fixed.
This is, in my opinion, the best method of providing at the same time
for the security and liberty of the subject, without favouring one at the
expense of the other; which may easily happen, since both these blessings,
the unalienable and equal patrimony of every citizen, are liable to be
invaded, the one by open or disguised despotism, and the other by tumultuous
and popular anarchy.
The generality of men want that vigour of mind and resolution which are as necessary for great crimes as for great virtues, and which at the same time produce both the one and the other in those nations. which are supported by the activity of their government, and a passion for the public good. For in those which subsist by their greatness or power, or by the goodness of their laws, the passions, being in a weaker degree, seem calculated rather to maintain than to improve the form of government. This naturally leads us to an important conclusion, viz. that great crimes do not always produce the destruction of a nation.
There are some crimes which, though frequent in society, are of difficult proof, a circumstance admitted as equal to the probability of the innocence of the accused. But as the frequency of these crimes is not owing to their impunity so much as to other causes, the danger of their passing unpunished is of less importance, and therefore the time of examination and prescription may be equally diminished. These principles are different from those commonly received; for it is in crimes which are proved with the greatest difficulty, such as adultery and sodomy, that presumptions, half proofs, &c. are admitted; as if a man could be half innocent, and half guilty, that is, half punishable and half absolvable. It is in these cases that torture should exercise its cruel power on the person of the accused, the witnesses, and even his whole family, as, with unfeeling indifference, some civilians have taught, who pretend to dictate laws to nations.
Adultery is a crime which, politically considered, owes its existence to two causes, viz. pernicious laws, and the powerful attraction between the sexes. This attraction is similar in many circumstances to gravity, the spring of motion in the universe. Like this, it is diminished by distance; one regulates the motions of the body, the other of the soul. But they differ in one respect; the force of gravity decreases in proportion to the obstacles that oppose it, the other gathers strength and vigour as the obstacles increase.
If I were speaking to nations guided only by the laws of nature, I would tell them, that there is a considerable difference between adultery and all other crimes. Adultery proceeds from an abuse of that necessity which is constant and universal in human nature; a necessity anterior to the formation of society, and indeed the founder of society itself; whereas all other crimes, tend to the destruction of society, and arise from momentary passions, and not from a natural necessity. It is the opinion of those who have studied history and mankind, that this necessity is constantly in the same degree in the same climate. If this be true, useless, or rather pernicious, must all laws and customs be which tend to diminish the sum total of the effects of this passion. Such laws would only burden one part of society, with the additional necessities of the other; but, on the contrary, wise are the laws which, following the natural course of the river, divide the stream into a number of equal branches, preventing thus both sterility and inundation.
Conjugal fidelity is always greater in proportion as marriages are more numerous and less difficult. But, when the interest or pride of families, or paternal authority, not the inclination of the parties, unite the sexes, gallantry soon breaks the slender ties, in spite of common moralists, who exclaim against the effect, whilst they pardon the cause. But these reflections are useless to those who, living in the true religion, act from sublimer motives, which correct the eternal laws of nature.
The act of adultery is a crime so instantaneous, so mysterious, and so concealed by the veil which the laws themselves have woven, a veil necessary indeed, but so transparent as to heighten rather than conceal the charms of the object, the opportunities are so frequent, and the danger of discovery so easily avoided, that it were much easier for the laws to prevent this crime, than to punish it when committed.
To every crime which, from its nature, must frequently remain unpunished, the punishment is an incentive. Such is the nature of the human mind, that difficulties, if not unsurmountable, nor too great for our natural indolence, embellish the object, and spur us on to the pursuit. They are so many barriers that confine the imagination to the object, and oblige us to consider it in every point of view. In this agitation, the mind naturally inclines and fixes itself to the most agreeable part, studiously avoiding every idea that might create disgust.
The crime of sodomy, so severely punished by the laws, and for the proof of which are employed tortures, which often triumph over innocence itself, has its source much less in the passions of man in a free and independent state than in society and a slave. It is much less the effect of a satiety in pleasures, than of that education which in order to make men useful to others, begins by making them useless to themselves. In those public seminaries, where ardent youth are carefully excluded from all commerce with the other sex, as the vigour of nature blooms, it is consumed in a manner not only useless to mankind, but which accelerates the approach of old age.
The murder of bastard children is, in like manner, the effect of a cruel dilemma, in which a woman finds herself, who has been seduced through weakness, or overcome by force. The alternative is, either her own infamy, or the death of a being who is incapable of feeling the loss of life. How can she avoid preferring the last to the inevitable misery of herself and her unhappy infant! The best method of preventing this crime would be effectually to protect the weak woman from that tyranny which exaggerates all vices that cannot be concealed under the cloak of virtue.
I do not pretend to lessen that just abhorrence which these crimes deserve, but to discover the sources from whence they spring; and I think I may draw the following conclusion: That the punishment of a crime cannot be just, that is necessary, if the laws have not endeavoured to prevent that crime by the best means which times and circumstances would allow.