According to law, a judge should have been present at the execution. He could have put a stop to it all by a gesture. What was he doing, then, leaning back in his carriage, while a man was being massacred? What was he doing, this punisher of murderers, while in broad daylight, under his very eyes, under his horse's nostrils, under his carriage-window, a man was being murdered?
And the judge was not put on trial! and the hangman was not put on trial! and no court made inquiries about that monstrous violation of every law on the sacred person of one of God's creatures!
In the seventeenth century, in the barbarous epoch of the criminal law, under Richelieu, under Christopher Fouquet, when Monsieur de Chalais was put to death before le Bouffay of Nantes by a clumsy soldier,--who, instead of a swordthrust, gave him thirty-four blows4 with a copper's adze,--at least this appeared irregular to the Parliament of Paris: there was an investigation and a trial; and although Richelieu was not punished, although Christopher Fouquet was not punished, the soldier was. An injustice, no doubt, but underneath everything it was right.
In this case, nothing was done. The thing occurred after July, at a time of peace and great progress, a year after the celebrated lamentation of the Chamber on capital punishment. Well! The fact passed absolutely unobserved. The Paris paper published it as an anecdote. No one troubled himself about it. They merely knew that the guillotine had been purposely put out of order by some one who wished to injure the executor of noble deeds. It was the hangman's valet, who had been dismissed from service by his employer, and who avenged himself in this way.
It was only a trick. Let us continue.
At Dijon, three months ago, a woman was to be executed, (a woman!). This time also the knife of Doctor Guillotine did poor service. The head was not completely severed; so the hangman's valets took hold of the woman's feet, and in spite of the victim's shrieks, they pulled and tugged, and finally succeeded in jerking the head from the body.
At Paris, we return to the time of the secret executions. As they have not dared to behead on La Greve since July, being cowards and afraid, this is what is done. They recently took from Bicetre a man who was condemned to die, Desandrieux by name, I think; he was placed in a sort of basket drawn on two wheels, closed on all sides, locked and bolted; then, a gendarme in front and a gendarme at the rear, with little noise and no crowd, the basket was placed on the deserted square of Saint-Jacques. It was then eight o'clock in the morning, scarcely day, but a guillotine had been newly erected for the public, some dozen or more little boys who clustered on the piles of stones about the unlooked-for machine; quickly they dragged the man from the basket, and without giving him time to breathe, stealthily, slyly, shamefully, they cut off his head. That, they call a public and solemn act of justice. Infamous irony!
What do the people of the king understand by the word "civilization"? To what have we come? Justice debased by stratagem and fraud! The law by compromises! Monstrous!
It is, indeed, a fearful thing for society to treat a man condemned to die as though he were a traitor!
But let us be just; the execution was not entirely secret. In the morning, on the cross-ways of Paris, they shouted and sold, as usual, the death-sentence. It seems that there are people who make their living in this way. You understand what I mean, do you not? From an unfortunate man's crime, from his punishment, his agony, his tortures, a commodity is made, a paper which they sell for one sou. Can you imagine anything more hideous than this sou corroded with blood? Who is there who would pick it up?
These are enough facts, and too many. And are they not all horrible?
What have you to say in favor of capital punishment?
We ask the question seriously; and we ask it in order to obtain an answer; we put it to those who are well-versed in criminal law, not to literary haranguers. We know that there are those who take the good of capital punishment as a text for a parody like any other theme. There are others who advocate capital punishment only because they hate such or such an one who opposes it. For them it is a quasiliterary question, a question of persons, of proper names. These are the envious, who are as far from being good lawyers as great artists. Joseph Grippas are no nearer to the Filangieri, than the Torregiani to the Michelangelos, and the Scuderys to the Corneilles.
It is not to them that we speak, but to the men of law, properly so-called, to the logicians, to the reasoners, to those who like capital punishment for its beauty, its goodness, its mercy.
Now let them give their reasons.
Those who judge and condemn say that capital punishment is necessary. In the first place, because they must remove from society one who has already harmed it, and who can harm it again. If this is all, life-imprisonment would suffice. Of what use is death? You say that one can escape from a prison? Make your patrol better. If you do not trust in iron bars, how do you dare to have menageries?
No hangman is needed where the jailer is enough.
But, they say, society must avenge itself; society must punish. Neither the one nor the other. To avenge belongs to the individual; punishment, to God.
Society is between the two. Punishment is above her; vengeance, beneath. She uses nothing so great or so small. She should not "punish to avenge herself;" she should "correct to make better." Transform the formula of those versed in criminal law into this, and we would understand it and abide by it.
The third and last reason is left, the theory of example. Examples must be made! We must frighten, by the sight of the fate reserved for criminals, those who are tempted to follow in their footsteps! That is almost word for word the eternal phrase of which every requisitory of the five hundred platforms of France are only more or less sonorous variations. Well! We deny, in the first place, that it is an example. We deny that the sight of punishment produces the desired effect. Far from edifying the people, it demoralizes them, it destroys their every feeling, and therefore their every virtue. There are many proofs, but our argument would be overcrowded if we were to cite them. We will mention merely one fact among a thousand, because it is the latest. It occurred ten days previous to the time we are writing. It was March 5th, the last day of the carnival. At Saint-Pol, immediately after the execution of an incendiary named Louis Camus, a group of masked men came and danced around the still reeking scaffold. So, make examples! The Mardi-Gras will laugh in your face!
If, in spite of experience, you still hold to your usual theory of example, then bring back the sixteenth century, be really formidable; bring back the various modes of punishment, bring back Farinacci, bring back the cross-examining juries; bring back the gallows, the wheel, the funeral-pile, the strappado (rack), the cutting-machine, the quartering, the ditch in which people were buried alive, the vat in which they were boiled alive; bring back to every street in Paris, as though it were an open shop among others, the hideous butcher's stall of the hangman, constantly covered with quivering flesh. Bring back Montfaucon, with its sixteen pillars of stone, its rough sessions, its caves of bones, its motes, its hooks, its chains, its carcasses, its tower of plaster dotted with ravens, its branching gallows, and the odor of dead bodies that the north-east wind wafts in large gusts across the entire Faubourg du Temple. Bring back in its permanence and power this gigantic penthouse of the Paris hangman. Yes! Here is an example indeed. Here is capital punishment that is understood. Here is a system of punishment of some importance. There is something horrible in it, and terrible too.
Or, do as is done in England. In England, which is a commercial country, a smuggler is arrested on the coast of Dover; he is arrested as an example, and as an examples he is left hanging to the gallows; but as the bad air spoils the body, the latter is carefully wrapped in linen which is coated with tar, that it may not have to be renewed very often. O land of economy! To tar those who are hanged!
But, nevertheless, this is somewhat logical. It is the most humane way of understanding the theory of example.
But do you really, seriously believe that you make an example when you
wretchedly slaughter a poor man in the most deserted spot of the outside boulevards? On the Greve, in broad daylight, it may pass; but on the square at Saint-Jacques! At eight o'clock in the morning! Who is passing there? Who ever goes by there? Who knows that you are killing a man? For whom is it an example? For the trees of the boulevard apparently.
Do you not see that your public executions are done stealthily? Do you not see that you hide yourselves? That you are afraid and ashamed of your deed? That you stammer absurdly over your discite justitiam moniti? That at heart you are troubled, abashed, restless, less sure of being right, won over by the general doubt, that you are cutting off heads mechanically, without knowing very well what you are doing? Do you not feel in your innermost heart that you have at least lost the moral and social idea of the mission of blood which your predecessors, the old lawmakers, carried out with a quiet conscience? At night, do you not turn your head over on your pillow oftener than they? Others before you have advocated capital punishment; but they believed they were in the right, that it was just and good. Jouvenel des Ursins thought himself a judge; Elie de Thorrette thought himself a judge; Laubardemont, La Reynie, and Laffemas considered themselves judges; you, in your innermost soul, are not sure that you are not assassins!
You leave the Greve for Saint-Jacques, the crowd for solitude, daylight for twilight. You do not carry on openly what you do. You hide, I tell you!
Every reason for capital punishment, then, is overthrown. Every syllogism of the platform is set at naught, all the shavings of a requisition are swept away and reduced to ashes. The slightest touch of logic destroys all poor reasoning.
Let the people of the king no longer come and ask heads from us as jurymen, from us as men, calling on us, in a soft voice, in the name of the society to be protected, the public prosecution to be assured, the examples to be made.
It is all mere rhetoric, bombast, nothing! A prick of a pin on these hyperboles, and you bring down the swelling. Beneath this soft-sounding talk, you find only hardness of heart, cruelty, barbarity, the desire to show one's zeal, the necessity of gaining one's salary. Keep silent, mandarins! Beneath the judge's velvet paw are felt the nails of the hangman.
It is hard to think in cold blood of what a criminal public prosecutor is. He is a man who makes his living by sending others to the scaffold. He is the official purveyor of places like La Greve. He is a gentleman who has some pretension to style and learning; who is a good speaker, or thinks he is; who can recite a Latin verse when necessary, or two, before carrying out a death-sentence; who strives after effect; who interests his amour-propre, O misery! where are involved the lives of others; who has his own models, his desperate types to copy, his classics, his Bellart, his Marchangy, as one poet has Racine or another Boileau. In an argument, he takes the side of the guillotine; this is his role, his province. His requisitory is his literary work; he embellishes it with metaphors, he perfumes it with quotations, it must be beautiful for the audience, and pleasing to the ladies. He has his baggage of commonplaces still new for the province, his fine points of elocution, his expressions, his literary style.
He hates the proper word almost as much as do our tragic poets of Delille's school. Do not fear that he will call things by their name, pooh! For any idea of nudity to which you may object he has a complete disguise of epithets and adjectives. He makes Monsieur Sanson presentable. He glosses over the chopper. He stumps the seesaw. He twists the red basket into a paraphrase. You no longer know what it is. It is sweet-sounding and decent. Can you picture him at night, in his office, composing at his ease, and to the best of his ability, the harangue which will raise a scaffold in six weeks? Do you see him sweating with blood and perspiration to fit the head of an accused man into the most fatal article of the code of law? Do you see him cutting off a wretch's head with a poorly made law? See how he inserts into a mess of tropes and synecdoches two or three poisonous texts, in order to express and extract at great pains the death of a man. Is it not true that while he writes, he probably has the hangman crouching at his feet, beneath his table, in the dark; and that he stops writing from time to time to say to him, like a master to his dog, "Lie still there! Lie still! You shall have your bone"?
In his private life this public man may be an honest fellow, a good father, a good son, a kind husband and friend, and all the epithets of Pere-Lachaise read.
Let us hope that the day is at hand when the law will abolish these mournful duties. The atmosphere of our civilization alone should use capital punishment.
One is sometimes tempted to believe that the advocates of capital punishment have not carefully reflected on what it is. But weigh in the scales of some crime this exorbitant right which society takes upon herself to remove, what she has not given, this punishment, this most irreparable of irreparable punishments!
Of two cases this is one:--
The man whom you kill has no family, no relatives, no friends. In this case he has had no education, no instruction, neither care for his mind nor for his heart; then, by what right do you kill this poor orphan? You punish him because in his childhood he crept on the ground without help and without a protector! You ascribe to him, as a forfeit, the isolation in which you have left him. You make a crime of his misfortune! No one taught him to know what he was doing. The man is ignorant. His fault is in his destiny, not in him. You kill an innocent man. Or, the man has a family; and then do you think that the blow by which you kill him hurts him alone? that his father, his mother, his children will not be disgraced? No. In killing him, you behead his whole family. And here, again, you kill innocent beings.
Awkward and blind penalty which, turn where it may, kills the innocent!
Imprison this man, this criminal with a family. In his cell he can still work for his own. But how can he provide for them in the depths of the tomb? And can you think without shuddering of what will become of his little boys, his little girls, whose father, and consequently their bread, you take away? Are you counting on this family from which to supply, after fifteen years, the galleys from the boys, the low music-hall from the girls? Oh, the poor little innocents!
In the colonies, when a slave receives capital punishment, a thousand francs indemnity are given to the man's master. What! you indemnify the master, and not the family! Here, again, do you not take a man from those who own him? Is he not, by a more sacred right than that of the slave to the master, the property of his father, his wife, his children?
We have already convicted your law of assassination. Now, here it is convicted of robbery.
Still another point. Do you think of the man's soul? Do you know its condition? Do you dare to despatch it so freely? Formerly, at least, the people had some faith; at the final moment the feeling of religion that was in the air softened the most hard-hearted; a victim was at the same time a penitent; religion opened one life to him as society closed the other; every soul had a knowledge of God; the scaffold was but the outer gate of heaven. But what hope do you place on the scaffold, now that the mass has no more faith? now that every religion is attacked by the dry-rot, like the old ships which lie unheeded in our ports, and which once discovered, perhaps, worlds? now that little children ridicule God? By what right do you undertake something in which you yourselves doubt the dark souls of your condemned, such souls as Voltaire and Monsieur Pigault-Lebrun have made them? You deliver them into the hands of the priest of the prison, an excellent old man, no doubt; but does he believe, and will he make them believe? Does he not make drudgery of his sublime task? Do you consider him a priest, this good man who jostles against the hangman in the wagon? A writer of soul and talent has said before us: "It is a horrible thing to keep the hangman, after having sent away the confessorl"
Those, no doubt, are nothing but "sentimental reasons," some scornful people may say whose logic comes only from their head. To our mind these are the best. We often prefer reasons of sentiment to reasons of judgment. Moreover, the two are always connected; remember that. "The Treatise on Cri
mes" is grafted upon the "Spirit of the Law." Montesquieu engendered Beccaria.
Reason is on our side, feeling is on our side, experience is on our side. In the model states where capital punishment is abolished, the number of capital crimes decreases year after year. Think of this.
However, we do not ask for a sudden and absolute abolishment of capital punishment at once, as was so thoughtlessly advocated by the Chamber of Deputies. On the contrary, we desire every precaution and all possible prudence. Morever, we seek not merely the abolishment of capital punishment, we want a complete change of the punishment in all its forms, from the highest to the lowest, from the lock to the chopper; and time is an element which should enter into such an undertaking, in order that it may be well done. So, on this subject, we hope to develop the system of ideas which we consider practicable. But aside from the partial abolishment in the case of counterfeit money, incendiary, so-called robberies, etc., we ask that from now on, in every capital question, the president put this question to the jury: "Was the accused moved by passion or by interest?" and that in case of the jury's replying, "The accused acted from passion," that he be not condemned to death. This, at least, would spare us some revolting executions. Ulbach and Debacker would be saved. Othello would no longer be guillotined.