CAPITAL PUNISHMENT.*
M. JULES SIMON'S beautiful little book, recently published, though written, he tells us, thirty years ago, and dedicated to Victor Hugo, is one which has the merit of bringing out vividly one aspect of the question of capital punishment, that of the fallibility of human judgment. The story is that of three young men of the name of Nay!, school-fellows of the writer at the small Breton town of Vannes, the best behaved pupils of their so-called college, who, nevertheless, in the course of the slight revival of the Chouannerie which took place after 1830,—one of them, indeed, having been drawn for the conscription, and having refused to serve, and all three having joined in consequence one of the Chouan bands,— became implicated in the murder of a M. Brossard, Mayor of La Peine de Mont: Real. ParJules Simon. Paris: Librairie Internationale 1865
Bignan, the hat of one of the brothers having been discovered in the room where he had been found dead, with eighteen knife-stabs in his body, and a Chouan proclamation nailed with a knife in his breast. In vain they declared, whilst absolutely refusing to give up the names of any other persons, that they had been forced to accompany the murderers, that they had tried to prevent the assassination, and had been held fast whilst it was taking place; their own advocate could not at first believe them ; the presiding judge, with the professional brutality of such personages in France (trained, as they all have been, as human bloodhounds, through the apprenticeship of the " ministere public "), even when, as happened in this case, they are really humane men, bade them imperiously hold their tongues,—" Au moms, pas d'hypocrisie !" All three were sentenced to death. It was with great difficulty that they could be persuaded to lodge the usual appeal in Cassa- tion ; indeed, it was only when the judge, persuaded in his heart of the probability of their innocence by their advocate at a private interview, actually ordered them to sign it, that they consented to do so. The appeal succeeded ; the judgment was quashed for some vice of form, and a new trial had to take place, previously to which the wife of one of the brothers endeavoured everywhere to procure evidence in discharge of the accused. It so happened that two other members of the band which had killed Brossard, named Le Pridoux and Jean Brien, guilty also of two other murders, were arrested. But these persisted in maintaining that the Nayls had gone voluntarily to Brossard's house, knowing what was to be done, and had been present in arms during the murder. Again they were condemned, as well as the two newly-arrested men, and *heir mother, who had gone mad already, but recovered for a while her reason, died a few days after. A last attempt was made, how- ever, by Marion Nayl, the heroic daughter-in-law, with the mother of Le Pridoux, who, indeed, knew all the details of the assassina- tion of Brossard, and at last giving in to Marion's pleading, told her the names of two women who were able to testify of the young men's innocence. It is difficult to make out from M. Jules Simon's work how a new trial seems to have taken place, but this time "in five minutes "the jury pronounced a verdict of acquittal, and the three brothers were released. One is now a priest, and M. Simon intimates that another played an important part in 1848.
M. Simon's narrative,—a model of pathetic art,—is very sug- gestive in many respects ; among which may be pointed out that of the truly Celtic secretiveness of the Breton population, so similar to what we see daily in Ireland, which sooner than denounce a crime mixed up with politics would have let three innocent men go to the scaffold. But, confining ourselves to that which M. Simon seeks to prove, that death-punishments need to be abolished as the means of irreparable injustice, what does he show that does not apply to every punishment ? In one sense, every single act of man is irreparable ; the past cannot be undone. Horrible it is, no doubt, that innocent men should perish by the executioner's hand. But the horror in reality lies not in the mere fact of death, but in the injus- tice of the punishment. Is it really more horrible that such men should bow their heads to the guillotine than that they should be condemned—under the French law, for instance—to the Bagne for life ; in other words, to the dragging of the cannon-ball and of the chain which should link them, day after day, month after month, year after year, to some atrocious obscene scoundrel, the shame and scorn of humanity? Without going even so low, how many a man has entered a jail innocent, and come out of it ripe for every crime, through the mere maddening sense of the injustice suffered ? How many a man has come out of it to find that he has a home no more,—his wife perhaps in a lunatic asylum, his children on the streets,—and to die broken-hearted ? Is not all this irreparable ? Yet is it a reason for throwing open every prison, for abolishing all attempt to enforce justice between man and man ? Logically, the same arguments which tell against the irreparable scaffold can never stop short of this. If we can- not face and accept the dread fact of the fallibility of human judgment,—if we try to believe that under any system of legisla- tion or jurisprudence we can avoid the chance of its working supreme iujustice,—if we cannot admit to ourselves that after we have taken every pains to secure, not only for the culprit at the bar of the criminal court, but for every fellow-creature whose actions .are impugned, for every suspected party, for every doubtful ques- tion, the fairest trial, the most equitable tribunal, the most merci- ful sentence, the most admirable appliances for carrying it out, the solemn issues of right and wrong with all their consequences lie yet in other hands than ours,—there is no rest for us on this earth, no light for our path, no hope for our actions.
If from this point of view we look back upon the trials of Brossard's murderers, we shall see every reason to be thankful that the penalty of death was in existence, and that the conscience of French jurymen had not then learnt to play those shameful tricks with "extenuating circumstances" which at the present day have made a disgraceful farce of so many trials of the worst offenders. If ever there were creatures whom society had a right to cut off from itself, Le Pridoux and Jean Brien and their accomplices were such ; scoundrels who could not only compel innocent men to be present at a frightful murder, but persist, these in allowing them to be sentenced as guilty, those in actually declaring them to be so. If such savage, venomous beasts in human form have not a right to be exterminated from God's earth, then the blood of every tiger and rattlesnake, wolf and viper, slain since man came into the world, cries from the ground against him as a murderer.
M. Jules Simon's narrative, then, though containing the most valuable lesson as to the fallibility of human justice, and there- fore as to the caution with which punishment of any kind should be applied, contains in reality none which specially affects capital punishment. Three innocent men were with great difficulty rescued from death ; two villains out of some fifteen who seem to have taken part in the murder received the well-earned punish- ment of their crime,—such is the sum and substance of the story. Society, according to the measure of its lights, seems hardly to have been unjust in sentencing the former, whilst the evidence against them was so strong as to be almost overwhelming ; cer- tainly no more than just in ridding itself of the latter. Death punishment is no doubt horrible ; but so is war ; and death punishment is but an incident in the standing warfare of society in its own self-defence against all crimes and wrongs that threaten its existence from within, just as the death of the soldier is an incident in that occasional warfare which it has to carry on for self-defence against outer enemies ; with this enormous dif- ference indeed, that the slain soldier is presumably an otherwise unoffending citizen, while the slain criminal is at the present day almost invariably a deep-dyed offender.
There is indeed one historical consideration which may be offered to the advocates of the abolition of death-punishments. A state of things in which capital punishment should not exist in the criminal code would be no novelty. Such a mild humane law (as they would term it) existed at one time throughout a very large part of Europe, and within our own island. Let any one turn over the codes of law contained in a work, more full of interesting matter for any one who has eyes to see than almost any one of equal bulk, Canciani's Leges Barbarorum Antiqum ; if he cannot read Latin, let him look into the ninth and tenth lectures of Guizot's History of Civilization in France. He will find it to have been the rule, except in those parts in which more of the influence of Roman law prevailed, from the fifth or sixth to well into the eighth century, that capital punishment should not be inflicted, even for murder ; that a price paid to the family of the dead, with or without a fine to the king, should be a sufficient requital for it. In the laws of our own Kentish Ethelbert (beginning of seventh century) the slaying of a man in the King's will only bound the slayer to make amends with fifty solidi or shillings ; if killed in an earl's vill, twelve solidi were enough. What tenderness of human life towards the criminal ! how gentle the manners which it bespeaks ! Why, those were ages in which every man's hand almost was against his fellow, the annals of which present what seems to us an almost unbroken series of the bloodiest and most treacherous crimes !—when, from the highest judge to the lowest, the king, the earl, the scabinus, every one, perhaps, would come red-banded to judgment ! No, the wise man who looks into the past as well as the present, if hesees that the abuse of capital punishment tends to induce a reckless- ness of human life, sees also that its absence must induce the like recklessness. Where the law does not avenge • man, man avenges himself. The era of the weregilil is that also of private revenges and blood-feuds ; the weregild itself indeed is expressly devised to supply the place of the latter. Even in our own days, duelling in France may be said to have grown with the abuse of "extenuating circumstances." By all means, let the guillotine and the gallows be used as sparingly as possible, that they may. deprive society of none who may yet become useful, or at least unoffending, members of it. But, as the needful ministers in the last resort of its warfare against social wrong, let them stand.
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