A COMMENTARY ON THE BOOK,
Of Crimes and Punishments

II

OF PUNISHMENTS

The misfortunes of the wretched in the face of the severity of the law have induced me to look at the criminal code of nations. The humane author of the essay, Of Crimes and Punishments, is only too right in complaining that punishment is much too often out of proportion to the crime, and sometimes detrimental to the nation it was intended to serve.

Ingenious punishments, in which the human mind seems to have exhausted itself in order to make death terrible, seem rather the inventions of tyranny than of justice.

The punishment of the wheel was first introduced in Germany in times of anarchy, when those who seized royal power wished to terrify, by the device of an unheard-of torture, whoever would dare to rise up against them. In England they used to rip open the belly of a man convicted of high treason, tear out his heart, slap his cheeks with it, and then throw it into the fire. And what, very frequently, was this crime of high treason? During the civil wars, it was to have been faithful to an unfortunate king, and sometimes had to be explained according to the doubtful rights of a conqueror. In time, manners became milder; it is true that they continue to tear out the heart, but it is always after the death of the criminal. The torture is terrible but the death is easy, if death can ever be easy.

IX

OF WITCHES

In 1749 a woman was burned in the Bishopric of Wurtzburg, convicted of being a witch. This is an extraordinary phenomenon in the age in which we live. Is it possible that people who boast of their reformation and of trampling superstition under foot, who indeed supposed that they had reached the perfection of reason, could nevertheless believe in witchcraft, and this more than a hundred years after the so-called reformation of their reason?

In 1652 a peasant woman named Michelle Chaudron, living in the little territory of Geneva, met the devil going out of the city. The devil gave her a kiss, received her homage, and imprinted on her upper lip and right breast the mark that he customarily bestows on all whom he recognizes as his favorites. This seal of the devil is a little mark which makes the skin insensitive, as all the demonographical jurists of those times affirm.

The devil ordered Michelle Chaudron to bewitch two girls. She obeyed her master punctually. The girls' parents accused her of witchcraft before the law. The girls were questioned and confronted with the accused. They declared that they felt a continual pricking in certain parts of their bodies and that they were possessed. Doctors were called, or at least, those who passed for doctors at that time. They examined the girls. They looked for the devil's seal on Michelle's body — what the statement of the case called satannic marks. Into them they drove a long needle, already a painful torture. Blood flowed out, and Michelle made it known, by her cries, that satannic marks certainly do not make one insensitive. The judges, seeing no definite proof that Michelle Chaudron was a witch, proceeded to torture her, a method that infallibly produces the necessary proofs: this wretched woman, yielding to the violence of torture, at last confessed every thing they desired.

The doctors again looked for the satannic mark. They found a little black spot on one of her thighs. They drove in the needle. The torment of the torture had been so horrible that the poor creature hardly felt the needle; thus the crime was established. But as customs were becoming somewhat mild at that time, she was burned only after being hanged and strangled.

In those days every tribunal of Christian Europe resounded with similar arrests. The faggots were lit everywhere for witches, as for heretics. People reproached the Turks most for having neither witches nor demons among them. This absence of demons was considered an infallible proof of the falseness of a religion.

A zealous friend of public welfare, of humanity, of true religion, has stated in one of his writings on behalf of innocence, that Christian tribunals have condemned to death over a hundred thousand accused witches. If to these judicial murders are added the infinitely superior number of massacred heretics, that part of the world will seem to be nothing but a vast scaffold covered with torturers and victims, surrounded by judges, guards and spectators.

X

OF CAPITAL PUNISHMENT

It is an old saying that a man after he is hanged is good for nothing, and that the punishments invented for the welfare of society should be useful to that society. It is clear that twenty vigorous thieves, condemned to hard labor at public works for the rest of their life, serve the state by their punishment; and their death would serve only the executioner, who is paid for killing men in public. Only rarely are thieves punished by death in England; they are transported overseas to the colonies. The same is true in the vast Russian empire. Not a single criminal was executed during the reign of the autocratic Elizabeth. Catherine II who succeeded her, endowed with a very superior mind, followed the same policy. Crimes have not increased as a result of this humanity, and almost always, criminals banished to Siberia become good men. The same thing has been noticed in the English colonies. This happy change astonishes us, but nothing is more natural. These condemned men are forced to work constantly in order to live. Opportunities for vice are lacking; they marry and have children. Force men to work and you make them honest. It is well known that great crimes are not committed in the country, except, perhaps, when too many holidays bring on idleness and lead to debauchery.

A Roman citizen was condemned to death only for crimes affecting the welfare of the state. Our teachers, our first legislators, respected the blood of their fellow citizens; we lavish that of ours.

This dark and delicate question has been long discussed: whether judges may punish by death when the law does not expressly require this punishment. This question was solemnly debated before Emperor Henri IV. He judged, and decided that no magistrate could have this power.

There are some criminal cases that are so unusual or so complicated, or are accompanied by such strange circumstances, that the law itself has been forced in more than one country to leave these singular cases to the discretion of the judges. If there really should be one instance in which the law permits a criminal to be put to death who has not committed a capital offense, there will be a thousand instances in which humanity, which is stronger than the law, should spare the life of those whom the law has sentenced to death.

The sword of justice is in our hands; but we ought to blunt it more often than sharpen it. It is carried in its sheath before kings, to warn us that it should be rarely drawn.

There have been judges who loved to make blood flow; such was Jeffreys in England; such in France was a man who was called coupe-tête. Men like these were not born to be judges; nature made them to be executioners.

XIX

OF SUICIDE

The famous Duverger de Hauranne, abbé of St. Cyran, considered the founder of Port Royal, wrote around 1608 a treatise on suicide which has become one of the rarest books in Europe. The Decalogue, he says, orders us not to kill. The murder of one's self seems to be just as much included in this precept as the murder of some one else. Now, if there are situations in which it is right to kill Some one else, there are also situations in which it is right to kill one's self; however, a man should attempt to take his own life only after first consulting his reason.

Public authority, which serves in place of God, may dispose of our life. Human reason may also serve in place of Divine reason: a ray of the eternal light.

St. Cyran extends this argument to great length, which could be taken as sheer sophistry; but when he comes to an explanation and to particulars, it is more difficult to answer him. One might, he states, kill himself for the good of his prince, his country, or his family.

It is indeed true that we cannot condemn such men as Codrus and Curtius. Surely no ruler would dare to punish the family of a man wholly dedicated to his prince; indeed, there is no sovereign who would dare not to reward such a man. St. Thomas said the same thing well before St. Cyran. But we do not need Thomas or Bonaventura or Hauranne to know that a man who dies for his country is worthy of our praise.

The abbé of St. Cyran concludes that it is permitted to do for one's self what it is worthy to do for another. It is generally well known what Plutarch, Seneca, Montaigne, and a hundred other philosophers allege in favor of suicide. It is a common subject and an exhausted one. I do not claim here to present a defense of an action condemned by the laws; but neither the Old Testament nor the New ever forbade a man to depart from life when he could no longer bear it. No Roman law condemned self-murder. On the contrary, here is the law of Emperor Marcus Aurelius, which was never revoked.

"If your father or your brother, convicted of no crime, kills himself either to remove himself from grief or through weariness of life, or in despair or in madness, his will is valid, or if he dies intestate, his heirs inherit according to law."

Despite this humane law of our ancient masters, we still rip apart and pierce with a stake the body of a man who dies voluntarily; we render his memory infamous; we dishonor his family to the extent that we can; we punish the son for having lost his father, and the widow for being deprived of her husband. We even confiscate the possessions of the deceased, which is tantamount to plundering the patrimony of the living to whom it belongs. This custom, like many others, is derived from our canon law, which deprives those who die a voluntary death of the rights of burial. The conclusion drawn from this fact is that no one can inherit on earth the property of a man who is deemed to have no inheritance in heaven. The canon law in the section, De Pœnitentia, assures us that Judas committed a greater sin in hanging himself than in betraying our Lord Jesus Christ.

XXII

OF CRIMINAL AND OTHER FORMS OF PROCEDURE

If one day humane laws soften in France some of our too rigorous customs, but without giving greater facility to crime, it is likely that there will also be a reform of those articles of procedure in which our legislators were animated by too severe a zeal. Criminal law in many respects seems to have been contrived only for the ruin of the accused. It is the only uniform law in the kingdom; should it not be as favorable to the innocent as it is terrifying to the guilty? In England, a mere false arrest is compensated by the official who ordered it; but in France, the innocent man who has been flung into a dungeon and has suffered torture, has no consolation to hope for, no damages to seek against any one; he remains with a permanently ruined reputation in society. The innocent man condemned! And why? Because he was dragged out of his home and imprisoned! He ought to arouse only pity and respect. The discovery of crimes demands severity: it is a war that humane justice wages against iniquity; but there is generosity and compassion even in war. The soldier is compassionate; must the man of law be savage?

Let us here compare on a few points the criminal procedure of the Romans with our own.

With the Romans, witnesses were heard in public, in the presence of the accused, who could answer them, even question them or have them cross-examined by a lawyer. This procedure was noble and frank; it was full of Roman magnanimity.

With us, everything is done in secret. A single judge, with his clerk, hears each witness separately, one after another. This practice, established by François I, was authorized by the commissioners who drew up the laws of Louis XIV, in 1670. Nothing but a misunderstanding was responsible for it.

They imagined, in reading the code, de Testibus, that the words testes intrare judicii secretum meant that witnesses were interrogated in secret. But secretum here means the judge's chamber. It would not be correct Latin to say intrare secretum for "speaking in secret." A solecism was responsible for this part of our jurisprudence.

Witnesses are usually of the very dregs of the population, and the judge, in private conversation with them, can make them say anything he likes. These witnesses are heard a second time, still in secret, for what is known as the reading of the testimony. And if, after this reading, they retract what they had earlier said, or if they change their testimony in any essentials, they are punished for perjury. So that when a simple-minded fellow, who cannot express himself well but whose heart is in the right place, remembers that he has said too much or too little, that he has misunderstood the judge or that the judge has misunderstood him, and out of a principle of justice takes back what he had said, he is punished as a criminal, and is often forced to adhere to false testimony, only out of fear of perjury.

If he runs away, the accused exposes himself to conviction, whether the crime be proven or not. Some writers on jurisprudence, it is true, maintain that in such instances a man should not be condemned if his crime has not been clearly established; but others, less enlightened, and perhaps more generally followed, have a contrary opinion: they venture to say that the flight of the accused is proof of the crime; that the contempt he displays for justice, in refusing to appear before it, is worthy of the same punishment he would receive were he convicted. Thus, according to the school of jurists to which the judge may happen to belong, an innocent man will be acquitted or condemned.

It is a great abuse of French jurisprudence that it often regards as laws the sometimes cruel fantasies and errors of unprincipled men, who have substituted their feelings for laws.

Two ordinances were promulgated during the reign of Louis XIV which are in force throughout the entire kingdom. In the first, concerned with civil procedure, judges are forbidden to give judgment when the petition is not proved; but in the second, which governs criminal procedure, there is no provision that the accused will be discharged if no evidence is brought against him. This is a strange business! The law states that a man sued for money shall be condemned to pay only if the debt be allowed; but when life is in question, it is a moot point if a man who refuses to go before the court must be condemned when the crime has not been proven; and the law does not resolve this difficulty.

When the accused has taken to flight, you proceed to seize and take inventory of his property; you do not even wait for the proceedings to be finished. You still have no proof, you do not yet know if he is innocent or guilty, and you begin by forcing immense expenses on him!

It is a penalty, you say, as punishment of his disobedience of a legal summons. But does not the extreme severity of your criminal procedure force him to this disobedience?

A man is accused of a crime. At once you lock him up in a wretched dungeon; you allow him no communication with any one; you load him down with irons as if you had already found him guilty. The witnesses who testify against him are beard in secret; he is confronted with them only for a moment; before hearing their testimony he must state his objections to them in detail; at the same time, he must name everyone who might support these objections, none of which are admitted after the reading of the testimony. If he shows the witnesses that they may have exaggerated certain facts or omitted others, or have been mistaken in some of their details, the fear of punishment will make them persist in their perjury. If circumstances described by the accused during interrogation be reported differently by the witnesses, that will be quite enough for ignorant or prejudiced judges to condemn an innocent man.

What man is there who is not terrified by this procedure? What just man can be certain of not being crushed by it? O judges! If you want accused innocent men not to flee, give them the means of defending themselves.

The law seems to require the magistrate to behave towards the accused man as an enemy rather than a judge. The judge has the power of ordering the confrontation of the accused by the witness, or of omitting it. How can so necessary a thing as the confrontation of witnesses be an arbitrary matter.

If a crime is in question, the accused can not have a lawyer; hence he decides to flee, a step which every maxim of the law urges upon him; but in running away, he may be condemned whether the crime is proven or not. Thus a man sued for money is condemned to pay only if the debt be allowed; but when life is at stake, a man can be condemned by default even though the crime has not been established. Is it, then, that the law considers money more than it does life! O judges! Consult pious Antoninus and good Trajan; they forbade the absent to be condemned.

Indeed, your law allows an embezzler or a crooked bankrupt to have recourse to the counsel of a lawyer; and very often, an honorable man is deprived of this aid. If even a single instance can be found in which an innocent man might be acquitted through the help of an attorney, is it not clear that the law which deprives him of such help is unjust?

The president of the royal commission, de Lamoignon, said in speaking against this law, "The lawyer or counsel customarily allowed accused men is not a privilege granted by ordinances or laws: it is a liberty acquired by natural right, older than any human laws. Nature teaches every man that he must depend on the talents of others when he cannot find his own way, and to call on help when he does not feel strong enough to defend himself. Our laws have taken so many advantages away from the accused that it is altogether just to conserve for them what remains, especially the right to counsel, which is the most essential part. For if one compares our procedure with that of the Romans and of other nations, he will find that none are so rigorous as that observed in France, particularly since the ordinance of 1539."

This procedure has been even more severe since the ordinance of 1670. It would have been much more mild if most of the commissioners had thought like de Lamoignon.

The parliament of Toulouse has a very unusual way of dealing with proof by witnesses. In other places half-proofs are admitted, which are at bottom only doubts: for everyone knows there are no such things as half-truths; but at Toulouse they allow quarter-proofs and eighth-proofs. Hearsay, for example, might be considered a quarter-proof, and another piece of hearsay, more vague still, an eighth-proof. So that eight rumors, which are only a single echo of an unfounded report, can serve as a complete proof. And it was more or less on this principle that Jean Calas was condemned to be broken on the wheel. Roman laws required proofs to be luce meridiana clariores.

XXIII

THE IDEA OF A REFORM

The magistracy is itself so respectable that the only country in the world where it can be bought and sold prays to be delivered from this practice. Men hope that a jurist might come by his merit to deliver that justice which he formerly defended in person and through his writings. Perhaps there will then arise, by dint of fortunate labors, a regular and uniform judicial system.

Will men always judge the same case differently in the provinces and in the capital? Must the same man be right in Brittany and wrong in Languedoc? Indeed, there are as many systems of law as there are cities; and even in the same parliament, the rules of one house are not those of the next.

What prodigious inconsistency there is in the laws of the same kingdom! In Paris, a man who has resided in the city for a year and a day is considered a citizen. In Franche-Comté, a free man who has lived for a year and a day in a house held in mortmain becomes a slave; his collateral relations can not inherit the property he may have acquired elsewhere; and his own children are reduced to beggary if they spend a year away from the house in which the father has died. The province is called "frank," but what frankness!

When limits are to be fixed between civil authority and ecclesiastical custom, what interminable disputes arise! What are these limits? Who will reconcile the eternal contradictions of the treasury and the bench? And finally, why in certain countries are sentences passed without explanation? Is it shameful to give the reasons for a verdict? Why do not they who judge in the king's name present their death sentences to the king before execution?

No matter which way we look, we find contradiction, harshness, uncertainty, arbitrary power. In this age we are trying to make everything perfect; let us try, then, to perfect the laws on which our lives and fortunes depend.



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