it credible, that there formerly existed a supreme tribunal more horrible than the Inquisition, and that this tribunal was established by Charlemagne? It was the judgment of Westphalia, otherwise called the Vhemic Court. The severity, or rather cruelty, of this court, went so far as to punish with death, every Saxon who broke his fast during Lent. The same law was also established in in the beginning of the seventeenth century. In the archives of a little place called St. Claude, situated in a remote corner of the most mountainous part of the county of Burgundy, are preserved the particulars of the sentence and verbal process of execution of a poor gentleman named Claude Guillon, who was beheaded on the 28th of July, 1629. Being reduced to the utmost poverty, and urged by the most intolerable hunger, he eat, on a fish-day, a morsel of horse flesh, which had been killed in a neighbouring field. This was his crime. He was found guilty of sacrilege. Had he been a rich man, and had spent two hundred crowns in a supper of sea-fish, suffering the poor to die of hunger, he would have been considered as a person fulfilling every duty. The following is a copy of his sentence: “Having seen all the papers of the process, and heard the opinions of the doctors learned in the law, we declare the said Claude Guillon to be truly attainted and convicted of having taken away part of the flesh of a horse, killed in the meadow of that town; of having caused the said flesh to be dressed, and of eating the same on Saturday the 31st of March,” etc.
I am ashamed of having said any thing on this subject, after what hath been already said by the author of the Essay on Crimes and Punishments. I ought to have been satisfied with wishing, that mankind may read with attention the work of that friend to humanity.
The sovereign, who represents the society itself, can only make general laws to bind the members; but it belongs not to him to judge whether any individual has violated the social compact, or incurred the punishment in consequence. For in this case there are two parties, one represented by the sovereign, who insists upon the violation of the contract, and the other is the person accused, who denies it. It is necessary then that there should be a third person to decide this contest; that is to say, a judge, or magistrate, from whose determination there should be no appeal; and this determination should consist of a simple affirmation, or negation of fact.
If it can only be proved, that the severity of punishments, though not immediately contrary to the public good, or to the end for which they were intended, to prevent crimes, be useless; then such severity would be contrary to those beneficent virtues, which are the consequence of enlightened reason, which instructs the sovereign to wish rather to govern men in a state of freedom and happiness, than of slavery. It would also be contrary to justice, and the social compact.
These three examples have two features in common. First, in each case, the person who acts does no wrong to any particular person but does a wrong to the rightful condition, in the following sense. The person acts on a maxim which, if universalized, would make a rightful condition impossible: founding rightful relations on falsehoods, refusing to punish offenders, or refusing to enter into a rightful condition in the first place. One is tempted to observe that a well-functioning rightful condition can tolerate a limited amount of this behaviour, just as it can tolerate a certain level of crime: the presence of the occasional Freeman on the Land who actively rejects the state’s authority, the occasional falsehood, or the occasional act of clemency does not cause the state to collapse. But that is not Kant’s point: he identifies the wrong as the inconsistency of the maxim of the action with the possibility of a rightful condition. Second, in each case, the action, though a juridical wrong (a wrong concerning the rights of others) is not itself punishable or amenable to juridical remedy. In the case of persons in the state of nature who refuse to enter into a rightful condition with each other, there is by definition no-one who has the authority to force them into a rightful condition, much less to punish them: the defining feature of the state of nature is precisely the absence of this authority. The ruler who exercises clemency cannot be punished nor can his act of clemency be undone by other institutional actors; one of the features of executive authority, for Kant, is the absence of any other person or institution with the authority to undo its decisions of this kind. The case of the lie is more complex, but the general picture is the same. Kant does indeed argue that a person who lies to the murderer at the door is juridically responsible for the consequences of the lie, but he does not suggest that the liar is punishable for the lie itself, and he recognizes other cases where a liar is not juridically responsible for the consequences of a lie.
A punishment, to be just, should have only that degree of severity which is sufficient to deter others. Now there is no man, who, upon the least reflection, would put in competition the total and perpetual loss of his liberty, with the greatest advantages he could possibly obtain in consequence of a crime. Perpetual slavery, then, has in it all that is necessary to deter the most hardened and determined, as much as the punishment of death. I say, it has more. There are many who can look upon death with intrepidity and firmness; some through fanaticism, and others through vanity, which attends us even to the grave; others from a desperate resolution, either to get rid of their misery, or cease to live: but fanaticism and vanity forsake the criminal in slavery, in chains and fetters, in an iron cage; and despair seems rather the beginning than the end of their misery. The mind, by collecting itself and uniting all its force, can, for a moment, repel assailing grief; but its most vigorous efforts are insufficient to resist perpetual wretchedness.
If the experience of all ages be not sufficient to prove, that the punishment of death has never prevented determined men from injuring society; if the example of the Romans; if twenty years reign of Elizabeth, empress of Russia, in which she gave the fathers of their country an example more illustrious than many conquests bought with blood; if, I say, all this be not sufficient to persuade mankind, who always suspect the voice of reason, and who chuse rather to be led by authority, let us consult human nature in proof of my assertion.
But the punishment of death is not authorised by any right; for I have demonstrated that no such right exists. It is therefore a war of a whole nation against a citizen, whose destruction they consider as necessary or useful to the general good. But if I can further demonstrate, that it is neither necessary nor useful, I shall have gained the cause of humanity.
In all nations, where death is used as punishment, every example supposes a new crime committed. Whereas, in perpetual slavery, every criminal affords a frequent and lasting example: and if it be necessary that men should often be witnesses of the power of the laws, criminals should often be put to death; but this supposes a frequency of crimes; and from hence this punishment will cease to have its effect, so that it must be useful and useless at the same time.
useless profusion of punishments, which has never made men better, induces me to inquire, whether the punishment of be really just or useful in a well-governed state? What I ask, have men to cut the throats of their fellow-creatures? Certainly not that on which the sovereignty and laws are founded. The laws, as I have said before, are only the sum of the smallest portions of the private liberty of each individual, and represent the general will, which is the aggregate of that of each individual. Did any one ever give to others the right of taking away his life? Is it possible, that in the smallest portions of the liberty of each, sacrificed to the good of the public, can be obtained the greatest of all good, life? If it were so, how shall it be reconciled to the maxim which tells us, that a man has no right to kill himself? Which he certainly must have, if he could give it away to another.
Is it possible, without shuddering with horror, to read in history of the barbarous and useless torments that were coolly invented and executed by men who were called sages? Who does not tremble at the thoughts of thousands of wretches, whom their misery, either caused or tolerated by the laws which favoured the few and outraged the many, had forced in despair to return to a state of nature; or accused of impossible crimes, the fabric of ignorance and superstition; or guilty only of having been faithful to their own principles; who, I say, can, without horror, think of their being torn to pieces with slow and studied barbarity, by men endowed with the same passions and the same feelings? A delightful spectacle to a fanatic multitude!
But he who foresees that he must pass a great number of years, even his whole life, in pain and slavery; a slave to those laws by which he was protected; in sight of his fellow citizens, with whom he lives in freedom and society; makes an useful comparison between those evils, the uncertainty of his success, and the shortness of the time in which he shall enjoy the fruits of his transgression. The example of those wretches continually before his eyes, makes a much greater impression on him than a punishment, which, instead of correcting, makes him more obdurate.