“What seems to us to be revolting today was just in that epoch. Who knows whether, in future, humans, approaching their objective, will not have scruples about killing animals, not recognizing the right to take the lives of the beings that God has given to them? That would then be justice; we would be barbarians in their eyes. They would be content to live on the products of nature: bread, fruits and vegetables.
“To pass on to contemporary times, divorce, forbidden in France, is allowed in the greater part of the civilized world. What is punished here is licit elsewhere.
“In France, people are under the threat of the law; in England, they are under its protection. We are only permitted to have one wife; in Turkey, it is considered a good thing to have several. Where is the truth in this chaos of contradictions?
“‘Larceny, incest, the murder of children and fathers, everything has its place among virtuous actions. Can there be anything more ludicrous than a man having the right to kill me because he lives overseas and his prince has a quarrel with mine, although I have none with him? Why are you killing me? What! Don’t you live on the other side of the water? My friend, if you lived on this side, and I killed you, I would be a murderer, and it would be unjust to kill you like this, but since you live on the other side, I’m a good man and this is just.
“‘Because of this confusion, some people have been led to say that justice is the authority of the legislator, others the prerogative of the sovereign, others still the present custom—and that is the most reliable. But according to that reasoning, nothing is just in itself; everything changes with time. Custom is the basis of all equity, by the sole reason that it is received; it is the mystical foundation of its authority.’24
“Justice therefore exists within us in the condition of an instinct; we have the notion of it, but we cannot circumscribe it within an invariable limit. That is one of the certain marks of our imperfection, along with the necessity of a Superior Being, who is the sole possessor of justice. It has the objective of discovering the truth. Now, as the truth is not of this world, it is a grave responsibility to disengage it from the tissue of errors with which it is enveloped. By dint of seeking it, we eventually denature it. Summum jus, summa injuria.
“Who can boast of being just? In the absence of striking evidence—and more!—justice, with all its procedures, is only based on probabilities. Pulled apart by contending advocates, who mount an assault of lies, it can only grope forwards. Which of the two is telling the truth? The cleverer often wins the case, and justice, blinded, but in good faith, pronounces on the basis of appearances. It is a power subject to manipulation, which one ought not to expose to the influence of speech; one risks falsifying it thus.
“The remedy, however, is quite simple. Our descendants have found it. Instead of complicating that which ought to emerge of its own accord, they have cut off the evil at its root, by eliminating the spirit of chicanery from the debates. No more advocates, no more public prosecutors. The accused remains, face to face with his judges. The work of justice is accomplished of its own accord. The facts are there. They speak sufficiently for or against the accused. What good does it do, before the hearing, to charge him with a devastating indictment, or for him to pose as a victim in a hypocritical defense? Is there any need for so many fine phrases, to reveal what is or is not the case?
“A simple report is sufficient to guide the deliberations of the judges who interrogated the accused, confront him with his accomplices, if he has any, have witnesses deposed and, weighing the responses, establish an accurate account.
“Those who prosecute and defend by trade are equally reprehensible. They both act without conviction, one paid by the government, the other by anyone rich enough to buy the flexibility of his eloquence. Is it not shameful that men who enjoy a stainless reputation and who, outside of their functions, are honored and esteemed, should sell their conscience in this way?
“The defender is supposed to be convinced of his client’s innocence, but in criminal matters where everything is against the accused, does he believe a word of what he says?
“I do not know whether the role of advocate or that of public prosecutor is the more odious. The public prosecutor is coldly inhuman in demanding the death penalty without good grounds. The advocate becomes his client’s accomplice in taking his side against society. I would rather be the person who unmasks the crime, at the risk of being mistaken, than one who denies or excuses it in the presence of overwhelming evidence. And these two men, who play ball with the fate of the accused, are the best of friends on coming out of the hearing. They are doing their jobs.
“Is not the worse enemy of society the advocate who risks reintegrating into its bosom a malefactor whom impunity will encourage to continue his dangerous exploits? What does he do? He earns his living, and for that, he argues for or against with the same facility. He adores tomorrow that which he overturned yesterday, benefiting from the harm he has done. When he takes up a good cause, it is hazard that had furnished it. Anything is good in order to make money. He will be neither more nor less esteemed in consequence; that is the way things are.
“In 3878 the title of advocate is nothing more than a certificate of study awarded to those who embrace a political career, as the title of bachelor of letters is awarded to those desirous of embarking on a liberal career. It is merely a diploma indispensable for standing as a candidate, just as the diploma of elementary education is for an elector.
“The standing magistracy, therefore, no longer exists; nothing remains but the seated magistracy, disengaged from and external influence, interrogating, judging and sentencing solely in the light of logic and conscience.
“There is no ornamented speech by an advocate to render a guilty person innocent, nor crushing indictment by a public prosecutor to make an innocent one guilty. Both fill an unnecessary role, repugnant to the austere rectitude of justice. The accused bears within him the evidence of his innocence or his culpability. It is the interrogation that gives rise to the probability; it is the confrontation of witnesses that shines a light on the truth.
“Take, for example, the affairs of the assize court, where the roles of advocate and public accuser are most prominent. With these two individuals eliminated, the judges are not under the influence of any bias before opening the discussion, nor any pressure afterwards. They establish extenuating circumstances themselves.
“In any case, there is no longer a head to dispute with society. The death penalty has been abolished for more than twelve centuries. It has been recognized that humans, being created, do not have the right to dispose of the lives of their fellows, created like them. Only the one who has given life has the right to take it away. In incarnating our souls he had designs of which we are ignorant; perhaps, in administering justice ourselves, we are spoiling them. Punishment is his prerogative, as well as mercy.
“Then again, is not a person driven by self-interest or any other passion obeying the irresistible power of instinct? What is instinct? Is it an acquired force, to which reflection, reason and study give birth within us, and develops with thought? If that were the case, we could rid ourselves of it with the same facility that we appropriated it. No, instinct is an unconscious force, a fatal deposit that nature has implanted in our soul when it was only in embryo, a deposit to which education gives the extension of a second nature. One succeeds is combating instinct, but never in stifling it.”
“But you’re falling into fatalism,” the Marquise put in.
“Yes and no. Yes, if instinct, born within us, is the consequence of the vitiated blood that engendered us. Morality is then impotent to uproot it. It can shake it temporarily, but, like a staff thrown into water, it will soon reappear at the surface. It is inherent in the innate impressions of our soul, as vices of conformations are inherent in our physical configuration. The fault is not entirely that of the person who is its victim; it is, in large measure, that of his forebears, who yielded to evil penchants and, having assimilated them, h
ave transmitted them by generation or education.
“No if, born of an honorable family and brought up with good principles, a person voluntarily allows his heart to be tainted by contact with bad society. A person whom hazard throws into that milieu before his ideas have had time to form, unable to weigh good and evil, might perhaps experience a good impulse. He will allow himself, it is true, to follow the bad examples he has been shown, but a light will shine in his blinded mind, he will remember vaguely the first impression engraved on his soul, and as soon as the evil is done, he will repent of it.
“He is, however, more guilty than the other. An effort of will would have sufficed to separate him from the current into which self-interest, pleasure or weakness had dragged him—whereas the unfortunate upon whom the deplorable weight of heredity weighs, combined with the bad lessons of education, sees evil merely as an ordinary line of conduct. A good impulse would seem ridiculous to him. Thus, he can be treated as predestined.
“Both of them are removed from society, to which they are harmful; they are sent to distant countries—but they are not removed from the number of the living. Who can tell whether their journey in this world is not the punishment of an anterior life? Who can tell whether the evil they have done might not have good consequences? Those are considerations that escape the limited conceptions of our intelligence. Everything in this world is so well-calculated, so well-arranged, that there is a danger at every step of disturbing the intentions of Providence. Everything has its reason for being; if a criminal exists, it is because he has an unknown utility; if not, why would he trouble our existence? Why would he strike an honest man rather than a scoundrel? Might it not be because that honest man is destined to end the ordeal of an unhappy life by his own hand? That would then be an evil for a good.
“Certainly, crime is condemned by all divine and human laws, but it is not the prerogative of humans, subject to so many weaknesses, to punish crime with crime. In any case, crime is no more excusable by personal sentiment than by legal reparation. Let us allow death to come; let us not summon it. Life is not very long, expiation will come, sooner or later. To repair an injustice, let us not commit a second.
“The role of the law, in cold-bloodedly avenging society, has something cynical about it, reminiscent of barbarian times. Unfortunately, the principle of talion is so inveterate in social beliefs that it will require another eight centuries to root it out. In that epoch, however, reaction operating within the human mind, people will have scruples about disposing of existences of which they are not the masters. They will reserve that concern to the Creator, the arbitrary sovereign of all things, who holds all destinies in his hands. His infinite justice is infallible. He will make use of it more surely, and in wiser measure, than we are able to do ourselves.
“That is not to say that a criminal should be treated in the same way as a good man—far from it. Given a criminal, with the full plenitude of his free will, God opposes to his actions those which his own plans have designed. If humans were merely unconscious machines obedient to a superior will, there’re would be no merit in following the path of good in preference to that of evil, and God himself, having fashioned the criminal, would be the true criminal. God therefore allows nature to accomplish its work; he contents himself solely with directing it in its good and evil instinct without influencing it. He intends humans to learn perfection from imperfection; for that, it is necessary that they tolerate one another.
“I shall analyze the epoch to which I have been transported, according to the laws I see in force.
“No more remand prisons, no more solitary confinement.25
“The remand prison removed a man inopportunely from his family and his employment on the strength of a suspicion, to detriment of his dependents, who, during the time the remand last—sometimes for years—are deprived of their livelihood and fall abruptly from ease into poverty.
“In the case of his innocence, a not-guilty verdict returns him to his family and employment, but the tribunal does not take any account of the damage that his remand has done to his dependents. Justice is entirely penal, not remunerative; its infallibility is a dogma. Often, for that unfortunate, it means complete ruination. His business, suddenly interrupted, has lost its clientele.
“As for solitary confinement, it is essentially contrary to nature. We have the right to extract criminals from society, but we do not have the right to forbid them the use of speech. Enforced silence, physicians have established, idiotizes those on whom it is imposed after a certain period of time. Intelligence needs to expand its conceptions, and for that it makes use of speech. All development demands extension. By virtue of concentration and confinement, ideas in the brain become confused; they collide, mingling and forming a confused amalgam, a formless composite of a multitude of disjointed thoughts. The brain is so fatigued that it almost loses the faculty of thought; it lacks space; it is cluttered. It is necessary that thought be let out, like a spring surging from the ground, like a swollen river overflowing its banks, like compressed steam opening the safety-valve of a boiler, like lava spreading in fiery streams from the crater of a volcano.
“Let people be punished, but not turned into beasts. Let the body be attacked, but not the intelligence. Intelligence depends on the soul, and the soul depends on God.
“Let the body be attacked, I said, but not so that death ensues, because death involves the desertion of the soul, and it would then be the soul that would be affected.
“In solitary confinement, the condemned man reaches the point of no longer belonging to humankind. He is a machine, a thing, less than an animal; he has no instinctive reason.
“Solitary confinement has therefore been purely and simply suppressed, and remand prisons have been replaced by police surveillance. The accused continues his employment and remains in the midst of his family until justice decides his fate. The idea has been broached of compensation, but compensation has its inconveniences; it would only be allocated after the judgment, when the harm has already been done—which is to say, when time has run out. Then again, financial compensation might perhaps repair the material injury, but not the moral injury.
“In any case, crime, having decreased with progress, is a rare exception in this era, and the laws that punish it are only inscribed in the Code for form’s sake.
“The death penalty has also been abolished, as I said. Human justice has been declared incompetent to pronounce such a grave sentence. There might be extenuating circumstances that escape its investigations. Its means of action are not sufficiently absolute for such a responsibility to be accepted.
“The criminal’s entire punishment is exclusion from society. He is a poisonous plant, contact with which is dangerous. He is therefore separated from other people forever; his punishment is to be sent to a colony overseas.
“This law, applicable in 2000 years in consequence of the changes that have taken place in humans, would not be applicable in our day, when crime is too frequent an objection. Colonization would not be a sufficiently terrible prospect for the criminal, who, while counting on impunity, would still calculate the risks to be run. Death suddenly appears a pitiless possibility, before which he sometimes stops and recoils. It is, therefore, a security for present-day society; but that society, modified over time, will adopt a new constitution in conformity with its needs, its mores and its instincts.
“That is what the future has in store for us. The present is too young to change its face abruptly; it can only lay the foundations on which the future will be built. The world was not built in a day; it cannot be reformed overnight. It proceeds by means of shocks, which become more violent as it approaches its goal. That goal might be 3000, 4000 or 5000 years hence; my faculties do not permit me to penetrate that far into the future; judging by the symptoms I observe, it will not exceed that term, to which it is close, relative to the epoch of its creation.
“1789 marked the era of social convulsions; 1900 will consecrate the triumph of de
mocracy; that is how, from one shock to the next, the world will reach its end.
“In matters of legislation, we are still in a rudimentary state. The present Code has not yet existed for 100 years, but for a nascent jurisprudence, what an immense step society has taken since ’89!
“Now, we waste precious time with intricate dissertations, which confuse the mind instead of enlightening it, and debates run on in idle, often puerile, discussions. There is quibbling over form, but not fundamentals. All attention is concentrated on seeking weaknesses in the adversary’s arguments. Laws are so contradictory that they may furnish each side with an argument that each believes, in good faith, to be irrefutable, to the extent that both are sometimes right, and the magistracy wrongs the less skillful in procedure. That is what comes from the precipitation with which laws are made one after another, without any thought of repealing the old—and the old are inevitably in direct contradiction with the new. Seeking clarification in the midst of such chaos, it is not the evidence that triumphs but the appearance.
“Lawsuits involving rights abound in examples of this kind. So many laws have been made in this area that the judgments of tribunals are always subject to dispute. The advocate of the civil party cites a law from some epoch on which he bases his argument; the public prosecutor opposes an anterior or posterior law that completely gives the lie to the law put forward by the advocate. What judge can boast of having been fair in such a case? Each side has the law in its favor, and yet one of them must be in the wrong. Whoever is convicted in the first instance is acquitted on appeal, and vice versa. Justice varies according to the presentation of the case, the conscience of the judges and the skill of the advocates.
“The supreme court of appeal only rules on questions of procedure. If it recognizes that a case has not been correctly conducted in matters of form it sets aside the judgment and the work of several months must begin again, because one word has been written instead of another—puerilities that have nothing to do with the guilt or innocence of the accused. There is a distinction between the law and its interpretation.
The World in 2000 Years Page 14