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.