In all other cases the arguments of its partisans cannot withstand the criticism of its opponents. At this point, in fact, at our present level of ignorance, a kind of wager is established: no expertise, no exercise of reason can give the deciding vote between those who think a last chance must always be granted to even the last of men and those who consider this chance as entirely illusory. But it is perhaps possible, at this very point, to over-ride the eternal opposition between the partisans and oppo-nents of the death penalty, by determining the advisability of such a penalty at this time, and in Europe, With considerably less competence, I shall attempt to parallel the efforts of professor Jean Graven, a Swiss jurist who writes, in his remarkable study of the problems of capital punishment: «. . .
Regarding the problem that once again confronts our conscience and our reason, it is our opinion that the solution must be based not upon the conceptions, the problems, and the arguments of the past, nor on the theoretical hopes and promises of the future, but on the ideas, the given circum-stances, and the necessities of today.»25
One could, in fact, argue forever about the advantages or devastations of the death penalty as it has been through the ages or as it might be contemplated in some eternity of ideas. But the death penalty plays its part here and now, and we must determine here and now where we stand in relation to a contemporary executioner. What does the death penalty mean for us, half-way through the twentieth century?
For the sake of simplification, let us say that our civiliza-tion has lost the only values that, to a certain degree, could justify the death penalty, and that it suffers, on the contrary, from every evil that necessitates its suppression. In other words, the abolition of the death penalty should be demanded by the conscious members of our society on grounds of both logic and fidelity to the facts.
Of logic, first of all. To decide that a man must be defi-nitively punished is to deny him any further opportunity whatsoever to make reparation for his acts. It is at this junc-ture, we repeat, that the arguments for and against capital punishment confront one another blindly, eventuating in a fruitless checkmate. Yet it is exactly here that none of us can afford to be positive, for we are all judges, all party to the dispute. Hence our uncertainty about our right to kill and our impotence to convince others on either side. Unless there is absolute innocence, there can be no supreme judge.
Now we have all committed some transgression in our lives, even if this transgression has not put us within the power of the law and has remained an unknown crime: there are no just men, only hearts more or less poor in justice. The mere fact of living permits us to know this, and to add to the sum of our actions a little of the good that might partially compen-sate for the evil we have brought into the world. This right to live that coincides with the opportunity for reparation is the natural right of every man, even the worst.
The most aban-doned criminal and the worthiest judge here find themselves side by side, equally miserable and jointly responsible. Without this right, the moral life is strictly impossible. None among us, in particular, is entitled to despair of a single man, unless it be after his death, which transforms his life into destiny and admits of a final judgment. But to pronounce this final judgment before death, to decree the closing of accounts when the creditor is still alive, is the privilege of no man. On these grounds, at least, he who judges absolutely condemns himself absolutely.
Barnard Fallot of the Masuy gang, who worked for the Gestapo, confessed to the entire list of terrible crimes of which he was accused, and later went to his death with great cour-age, declaring himself beyond hope of reprieve: «My hands are too red with blood,» he said to one of his fellow pris-oners.26
Public opinion and that of his judges certainly classi-fied him among the irrecoverables, and I would have been tempted to put him in that category myself, had I not read one astonishing piece of evidence: after having declared that he wanted to die bravely, Fallot told the same prisoner: «Do you know what I regret most of all?
Not having known sooner about the Bible they gave me here. If I had, I wouldn’t be where I am now.» It is not a question of surrendering to the sentimentality of conventional imagery and conjuring up Victor Hugo’s good convicts. The age of enlightenment, as it is called, wished to abolish the death penalty under the pretext that man was fundamentally good. We know, of course, that he is not (he is simply better or worse). After the last twenty years of our splendid history we know it very well.
But it is because man is not fundamentally good that no one among us can set himself up as an absolute judge, for no one among us can pretend to absolute innocence. The verdict of capital punishment destroys the only indisputable human community there is, the community in the face of death, and such a judgment can only be legitimated by a truth or a principle that takes its place above all men, beyond the human condition.
Capital punishment, in fact, throughout history has always been a religious punishment. When imposed in the name of the king, representative of God on earth, or by priests, or in the name of a society considered as a sacred body, it is not the human community that is destroyed but the functioning of the guilty man as a member of the divine community which alone can give him his life. Such a man is certainly deprived of his earthly life, yet his opportunity for reparation is pre-served. The real judgment is not pronounced in this world, but in the next.
Religious values, especially the belief in an eternal life, are thus the only ones on which the death penalty can be based, since according to their own logic they prevent that penalty from being final and irreparable: it is justified only insofar as it is not supreme.
The Catholic Church, for example, has always admitted the necessity of the death penalty. It has imposed the penalty itself, without avarice, at other periods. Today, its doctrines still justify capital punishment, and concede the State the right to apply it. No matter how subtle this doctrine may be, there is at its core a profound feeling which was directly expressed by a Swiss councilor from Fribourg during a discussion of capital punishment by the national council in 1937; ac-cording to M. Grand, even the worst criminal examines his own conscience when faced with the actuality of execution.
«He repents, and his preparation for death is made easier. The Church has saved one of its members, has accomplished its divine mission. This is why the Church has steadfastly counte-nanced capital punishment, not only as a means of legitimate protection, but as a powerful means of salvation. . . . [My italics.] Without becoming precisely a matter of doctrine, the death penalty, like war itself, can be justified by its quasi-divine efficacity.»
By virtue of the same reasoning, no doubt, one can read on the executioner’s sword in Fribourg the motto «Lord Jesus, thou art the Judge.» The executioner is thereby invested with a divine function. He is the man who destroys the body in order to deliver the soul to its divine judgment, which no man on earth can foresee. It will perhaps be considered that such mottos imply rather outrageous confusions, and certainly those who confine themselves to the actual teachings of Jesus will see this handsome sword as yet another outrage to the body of Christ.
In this light can be understood the terrible words of a Russian prisoner whom the executioners of the Tsar were about to hang in 1905, when he turned to the priest who was about to console him with the image of Christ and said: «Stand back, lest you commit a sacrilege.» An unbeliever will not fail to remark that those who have placed in the very center of their faith the overwhelming victim of a judicial error should appear more reticent, to say the least, when confronted by cases of legal murder.
One might also remind the believer that the emperor Julian, before his con-version, refused to give official posts to Christians because they systematically refused to pronounce the death sentence or to aid in administering it. For five centuries Christians be-lieved that the strict moral teaching of their master forbade them to kill. But the Catholic faith is derived not only from the teachings of Christ, it is nourished by the Old Testament, by Saint Paul, and by the Fathers as well. In particular the immortality of the soul and the universal resurrection of the body are articles of dogma.
Hence, capital punishment, for the believer, can be regarded as a provisional punishment which does not in the least affect the definite sentence, but remains a disposition necessary to the terrestrial order, an administra-tive measure which, far from making an
