I have just said that political crimes are of such a description that their moral perversity is more doubtful, more variable, and less generally recognised than that of private crimes; the punishment, therefore, whatever it may be, has a work here to perform which is spared it elsewhere. When some act of the kind is proclaimed to be criminal, men are not found, as in the case of murder or robbery, decided upon its character. Convictions must be changed, and a struggle entered into not only against passions, but against ideas; and as the question is to act upon those very men who would be inclined to commit what is thus proscribed, the difficulty becomes immense. In the present state of manners, the destitute, the vagabond, or the depraved, whatever be the unhappiness of their situation, or the vice of their inclinations, never believe that they are morally permitted to rob. Everything inculcates the interdict, and recalls it to them when they forget it; and the law finds very rarely, even in them, a belief directly opposed to right. Men carried to political offences, on the contrary, are enemies alike to the convictions and commands of the law; for the law affirms the established order to be good, while they think it bad; its continuance necessary, while they desire its fall; its existence sacred, while they demand its overthrow. No point of contact exists between these men and the law which addresses them; no common principle unites them; and to obtain obedience otherwise than through fear, the law must begin by making them believe it. Before obtaining this chief and powerful efficacy, which consists in fortifying the natural antipathy to crime, punishments are here encountered by an unaccustomed obstacle. They have not, in general, to do with beliefs; they are themselves a sanction to public belief, acting upon men who have transgressed while believing. How can the sanction of a principle produce its effect in a case where the principle does not exist! It may prove the strength of an enemy, but not the justice of its cause. Great questions recur everywhere. If Providence had imposed on human actions no other curb than fear of consequences—if men entirely abandoned to the counsel of their interest or the voice of their desires, were without those convictions which introduce order into the tumult of passion, and light into the uncertainties of life—chaos would soon invade the world, and the only means of maintaining order would be the sudden abasement of our nature by the absolute loss of its liberty. But man, by his moral convictions, binds and adapts himself to the will of Providence: he is in direct communication with it, comprehends the language of its laws, admits its principles, and submits himself to them freely; and notwithstanding the struggles which agitate him, notwithstanding his constant errors, there is no need of force to substitute slavery for obedience.
What man would be in his relations with Providence if his moral principles were to fail him, men inclined to political offences pretty nearly are in their relations with power. They do not believe what it believes; they have no wish for what it wishes; they contest with it even the legitimacy of its existence. How must power act upon them? It has sense enough to understand that force alone will not suffice, that it has never had enough of this to exterminate or imprison any considerable portion of the society it governs. It must change its dispositions, and re-establish between it and them this community, if not of intentions, at least of beliefs, which gives law its true empire, arming it with the power to prevent a hundred crimes by punishing a single one, and raising its administrators to the rank of teachers of the people, whereas formerly they tried in vain to remain their jailers.
Of all the means which power employs for attaining this end, punishments assuredly are the least efficacious. Punishment supposes crime, and if the supposition is not admitted, the moral efficacy of the former disappears. When the man on whom the punishment is inflicted, and those who think with him, judge that he is unjustly smitten, in this case punishment has the effect of injustice: it irritates, confirms the hostile opinion, widens the breach between the law and its transgressors, and thus goes directly against a part of its own purpose. But if, on the contrary, the enemies of power admit that it is right in punishing them, if they see that it employs its force against them with reason, they can only have taken the part of considering themselves in a state of war. From that moment every social tie is broken; the question is no longer of laws or chastisements; plots are ambuscades, and punishments defeats. Government has lost its moral position: it has descended to an equality of force; everything is equal between it and its enemies: as it has the right of self-defence, they have the right of attack: the claim of obedience on one side, and justice on the other, are equally false. All this belongs to society, but society is dissolved: there is nothing now but war, with the liberty of its arms, the continuity of its dangers, and the uncertainty of its results.
Of all punishments, capital punishment is that whose employment precipitates parties and power most rapidly into this last situation: it brings war to mind by rousing violent animosities, and provoking vengeance. It is therefore the punishment which possesses least of all the kind of efficacy we are now in quest of. This efficacy, I repeat, has for its condition the reform of certain ideas: it will not bear its fruit till the men it addresses consent to consider those acts culpable from which it would dissuade them; at least they must have conceived doubts on the subject, and the notion of the legitimacy of power must have entered their minds.It has often been attempted to introduce moral convictions by means of punishments, but when these have not succeeded in exterminating, they have always failed. It is said that moral convictions are not aimed at—that the struggle is only against vicious desires, inordinate wants, and criminal interests. But this is a mistake: for when the morality or immorality of an action is not evident, when there is room for the least uncertainty, then passions, interests, everything, hide themselves under opinions, and all resolve or metamorphose themselves into ideas. The most perverse and headstrong of men are disinclined to dispense with reason, and content themselves with brute force. They have ever a wish to legitimise in their own eyes even the least disinterested conduct; they carefully collect every motive, every pretext, and seize upon the slightest pretence; and what is more easy, after an unexpected overthrow, to form thus for themselves a creed which lends its support to hostility against power? Was there ever a true faction that was anything else than a union of banditti forced on by their own base interests, and accessible only to fear? The weakest government of our day might hold such a danger cheap; but punishments are desired to act in a very different sphere: to teach the citizens that it is culpable to conspire against established order, and deliver their country to the terrible chances of revolution. Be it known, however, that punishments have no power to propagate such ideas; they must already exist in the mind. It is weakness to suppose that they can be reaped when other causes have not yet sown them: this is attributing to punishments a power which they do not possess: they cannot make things be detested as criminal which are regarded as meritorious, nor can they demonstrate the moral legitimacy of power: they have no effect upon the established convictions of the people; and when these are hostile to authority, it is by other means than punishments that government can succeed in changing them, and when they will not change, punishments, instead of reforming, only strengthen their empire. Let us talk no more, then, of capital punishment preventing political crimes by inspiring a hatred of them: this really moral efficacy, however powerful against ordinary crimes, is here without reality; and the more vigorous parties become, and the more the perils of power increase, the less pretence can capital punishment make to such salutary influence. It is, then, both for government and the factious, only another step in antagonism, and for the public only another blow of destiny, fatal to the vanquished to-day, and perhaps to the conqueror to-morrow. Does it act more powerfully through fear? I have already shown that in this point of view, and by the sole difference of social position existing between conspirators and robbers, political crimes offer to the laws much less hold than private offences. But this is not the only cause which renders the terror of punishment less efficacious in political matters than is commonly supposed.
Men are influenced by different motives; and there must be an agreement between them and the means used for control. Who does not know that he cannot speak to a man whom interest governs in the same manner as he would speak to him who is ruled by passion, or to a man who is possessed by passion as to him who is directed by an opinion or a duty? We study carefully, in the private relations of life, those various dispositions of mankind, and never think of addressing ourselves to feelings which have no existence. The legislator who acts upon the masses cannot arrive at this nice justice, this special fitness of things; but he need not commit the profound absurdity of directing the same means indifferently against dispositions the most different; and since he can avoid this, it is imperative upon him to do so, not only for the sake of justice, but for the sake of success.
Fear, for example, has more efficacy against interests than passions, and against passions than ideas: it is easier to prevent a poor man from stealing than an irritated man from seeking vengeance; and the angry man, in his turn, is more easily restrained than the fanatic who believes himself commanded to assassinate. Generally, when a man's governing principle is of a nature in some sort material, such as a purely personal interest, fear has much power: it opposes interest to interest, and all happens thus in the same sphere; for there is similitude and fitness in the impelling and opposing motive. As we approach the moral order, fear loses its virtue: it ceases to be in natural and direct relation with the impulses it would repress; it addresses them in a language not their own, gives them reasons they cannot admit, and thus falls short of the mark it aims at. But when we arrive at the purest and rarest of all motives, at the full and dominating convictions of our moral nature, fear remains without action upon the man thus placed above that world to which its power is confined.
And this is not a theory: it is a series of facts, regulated by Providence, which has willed that material and moral order shall remain distinct and profoundly different even in their union.
To which category do these causes of action belong which generally urge men to political offences? Here, also, the diversity is great; for I am far from believing that everything happens within the moral order, or even upon its confines. Among the causes which excite hostility to power are ideas, passions, and interests: here honourable sentiments or sincere beliefs, there frenzied desires or the most brutal selfishness. All these principles of action join, are confounded together, and form in their admixture a heterogeneous force, whose different elements cannot be combated by the same arms, nor be repressed by the same means.
I do not say that the fear inspired by the spectacle, or the chance of capital punishment, is without efficacy to prevent the explosions of this confused force: but I do say that its efficacy is not of a simple nature; and that even if it finds in the adversary it combats points where it can strike with success, there will be others which it cannot reach, and where its rebound will produce a contrary effect to that contemplated by the penal law.
When Charles II., urged on by the Catholics, and by his own taste for absolute power, resorted to condemnations and punishments, the opposition included, as always happens, the most heterogeneous elements. The followers of the republic joined those of Cromwell; and the fanaticism of the Puritans did not refuse an alliance with men whose disgust of frequently-ridiculous controversies had rendered them indifferent to every religious belief. To men revolted by the license of the court were joined others influenced by the love of disorder, the melancholy fruit of revolutions; and the ambitious who sought after popularity, for the sake of wealth or power, stood side by side with sincere patriots, disinterested friends of their country's liberty: thus Lord Shaftesbury voted with Lord Russell. In the same party, in fine, met together the most noble sentiments and the most culpable passions, the most sincere beliefs and the most worldly interests, the highest virtue and the most shameful desires.
What must have been, what really was, the effect of political rigour upon a party thus composed? The court triumphed at first: for those who had joined the party from interest withdrew from it; the venal sold themselves; the timid sunk into silence; old republicans, in thus losing their illusions, believed liberty lost without retrieve; Monk corrupted or abandoned his former companions; and Shaftesbury fled to Holland. Fear reigned in all its glory. But at the same time that it struck the vulnerable portion of the party, it deeply and irreconcilably offended forces which it was not its business to attack. If cowards were afraid, brave men became indignant; and if fear brought over to the court some deserters from the popular party, it likewise confirmed the people in their aversion; causing the former to think themselves in error in having attacked power, and proving to the latter their right to do so. The reformers were alienated past return; the passions, kept in check perhaps among the great, grew furious in the rabble; the public mistrust became incurable; and all the friends of national liberty judged themselves in peril. As to the more ambitious of the party, Lord Russell and Sidney were the most unfortunate of the conspirators: they became martyrs for the people; and time soon showed that if fear had borne fruits favourable for power, it had likewise sowed some that were very bitter.Such is, in a political matter, the inevitable condition of the indirect efficacy of punishment. It is not confined to the limits in which it can be of service; it does not restrict its operation to perils which it can combat with success; but in some cases causes the desired effect, and in others one which would rather have been avoided: its influence can neither be diverted nor even foreseen. It is a weapon of unknown power, which, thrown at random, may strike one required point, and at the same time in a hundred others excite new enemies and new dangers.
The want of reflection in men explains everything: but that power which, in order to destroy political factions, calls to its aid the fear of death, commits a strange mistake; for in employing this means, it knows not what it does. It should at least, before having recourse to it, consider what is the nature of the danger it fears, what the interior composition of the factions it combats, and what will be the effects, so variable and complicated, of the punishment of death. If the question was now of such enemies as in the thirteenth century were those of established governments; if political struggles carried physical disorder suddenly into society, and the gatherings of conspirators threatened always to turn into bands of robbers, then fear would be the true weapon. If even, in our day, we dealt with seditions engendered among the multitude, provoked by some brutal passion or some physical interest—by the most pressing, for instance, the most excusable of interests, famine—there, again, I could conceive the employment of the punishment of death. It might, indeed, be needlessly and odiously abused; but it would at least be used with a knowledge of its effects against an evil to which its fear might be properly applied. Parties now, however, are very differently constituted: they unite men of all conditions, rich and poor, idle and industrious, peaceable and disorderly, bound together by numerous and systematic relations. If conspiracies do not obtain entire success, and change the face of empires, they seldom advance so far as they attempt. We live in a society recently overturned, where legitimate and illegitimate interests, honourable and blameable sentiments, just and false ideas, are so mingled, that it is very difficult to strike hard without striking wrong. We are an ancient people entering into a new social order; the errors of inexperience are seen amidst the security of civilisation; all is obscure and confused, without being entirely disorderly or violent. In such a state of men and things, to believe in the efficacy of capital punishment against political danger, and to rely on the fear it inspires as a great means of government, is to mistake both the evil and the remedy, and to employ arms at once old and poisonous, which are no longer of use, and cannot be handled without danger.
I find everywhere the same mistake; and it is by confounding times that means are misunderstood. In the former constitution of society, the moral efficacy of capital punishment was powerfully seconded by its direct and physical efficacy. When it fell upon the chief of an eminent party, known to all its members, and invested with immense power, his personal fall not only dissipated a great danger, but struck terror into the whole faction, and it was said on all hands—How has this man fallen? What! were not all his riches, his credit, his numerous followers, and his strong places, able to defend him? His adversaries are then much to be dreaded! How is it possible to escape their power? How strive against that which has destroyed such a man? Beyond the circle of political conflicts the same phenomenon is visible. The death of Cartouche or Mandrin will be a much greater example, and act much more powerfully upon robbers, than that of an obscure pickpocket. If you descend into the rabble, you will find the same relation between the moral and physical efficacy of punishments; for there the number of the victims makes up for their want of celebrity. Is it surprising that the population of a district should be paralysed with fear when they see their ranks thinned by chastisements, and encounter at every step the instruments or the ruins of this devastating power? Sepulture itself is refused to their remains, and the dead remain above ground to terrify the living.
At such a price is obtained that fear which in former times derived its terrible influence from capital punishment. If you try now to restore the vanished régime, you will not be able to fulfil the conditions; you will not be able to multiply political punishments so as to terrify by their number. A government aiming at such effects would find danger moving against it at the same pace as fear among the people. Society no longer furnishes those victims whose illustrious fall spread terror everywhere. You must act here and there against some obscure wretches, whose names are unheard, and who are known only by their misfortune. And how can you destroy such men? Not by the force of power: the conflict is too unequal. By its justice? Have a care: when interest is personal, and the superiority so immense, justice is very open to suspicion: if doubt is possible, you may count upon its becoming in many minds equivalent to a certainty. And what fear have you then inspired? Not the fear of force, but of iniquity; and a government, in my opinion, can gain nothing from the one without the other.
That, however, is the error which possesses those who, in our day, rely upon the punishment of death: they mistake the nature of the fear they spread, and believe themselves to have proved their strength when they have but made their justice or their wisdom doubtful. Strength is not so easily proved, nor always in the same manner.Two governments have ruled France despotically—the Convention, which reigned by political punishments; and Bonaparte, who made little use of them, and even took pains to avoid them. Both, by different means, were powerful, and dreaded. But was the scaffold the only strength of the Convention? No rational man can believe it: it played its part, just like conflagrations, or falling houses, or ravaging banditti; but in all these the efforts are greater than the energy, and the Convention, consuming itself almost as quickly as its enemies, fell into the abyss from which it issued; for in vain is power great—the crime by which it triumphs destroys it in our day more rapidly than ever. Bonaparte was strong in his turn; but it was not by punishments that he proved his strength, and made it to be feared. He punished some conspiracies, suppressed others, and passed over many more; he even specially passed over those which proceeded from the party opposed to the Revolution. Invested with power by the need of order and justice, and in opposition to the anarchical tyranny of the Jacobins, already worn out, he comprehended well that he must invoke power from the same interests and sentiments which had just procured him the Empire. The need of order within and of victory without the Empire had made the 18th Brumaire, and Bonaparte reigned as he had risen—by order and victory; and when by his faults he had lost or compromised victory in Europe, and security in France, he fell, still full of life, but having ceased to be strong.
If I may use the figure, there is a star which bestows their strength upon governments, and which they are not at liberty to choose or renounce without danger. They are born and live with a nature of their own, but in a situation they have not made, and under conditions they cannot direct; and their skill consists in becoming acquainted with these, and adapting themselves to them. Thus are they powerful—one by war, another by peace; this by severity, and that by gentleness—according as the different means of government have affinity with the especial laws of their destiny. And if they misunderstand these laws, and mistake the means of the government which correspond with them; if they imagine they can attempt indifferently any path they choose, and set in motion such or such a spring according to their fancy; if they consider power as an arsenal of all sorts of arms, equally useful to all comers—then their star abandons them: they hesitate, waver, try in vain a thousand resources, which fail them successively, and feeling themselves growing weaker day by day, are foolishly astonished that a course of conduct which has succeeded so well with others does nothing but increase their embarrassments and perils.
What was the star of the Restoration? Under what native laws was the present government placed? Where were its elements of power, and what means of action were fitted to its position and its nature? I would know this, in order to discover if capital punishment in political matters is really an arm for its use, and which preserves in its hands, both as regards its own interest and that of the people, a salutary efficacy. I cannot help the question becoming so extensive. I shall endeavour to keep within its bounds; but it is very necessary that I follow wherever it conducts me.
I shall say but one word of external matters. The Restoration found war in France, and France, like Europe, weary of war. This was both for France and Europe a pledge of peace. Peace was then the general law of our destiny; and in it should France have sought its power, and likewise its dignity, for the one is not separated from the other, at least for long.
Within, the Restoration found neither anarchy, impiety, contempt for the laws, struggles between classes, nor any of those revolutionary scourges of which they now speak, as if they had possessed France for twenty-five years without interruption. This is not true. The old nobility lived at peace with the new, and both with the nation. Vanity had its folly as well as its pleasures, and the country thought little about the matter. Unluckily for our prospects and our rights—I thought so then, and do so still—power was at least strongly constituted, and in such a manner that disorder was not to be feared either for us or itself. Moral disorder, that internal shamelessness which incredulity produces, that domestic license, contempt for all existing forms of things, and aversion to every rule and restraint, had disappeared. Order, an imperious and blind necessity in 1799, was in 1814 a habit and a general taste, and the Restoration found it so.
It is true that order, not only politically, but morally, was without guarantees. In political respects, no real and independent institutions subsisted by their own strength, capable of protecting either the general interests against individual pretensions, or individual interests against the tyranny of general interests and the natural vices or errors of power. One man had sufficed for many, and had pretended to suffice for all. In falling, he left power entirely naked and defenceless: for it had rights, and no means of exercising them; strength, and no means of displaying it; wants, and no means of providing for them by its own efforts.
In moral respects the evil was less apparent, but still real and profound. Order reigned in social facts, and even in manners; but the principles of order were not in the soul. These principles I may sum up in two words: the firm sentiment of right and true belief. These were almost alike wanting. I will not say that in the respect for religion and morals which replaced the revolutionary cynicism there was hypocrisy, but still there was not sincerity: it was an external respect, founded upon necessities and conveniences, not upon convictions and sentiments. People considered it good, and observed it, but without having in themselves that which occasions it, and without troubling themselves as to its legitimate nature. The head of the government set the example; but if he desired its habits, he feared its principles; for while ridiculing ideas, he acknowledged their empire. Discipline without moral rule, obedience with indifference, this is all he sought, and society gradually took the character under his hand. Never had order been at once so exact, and yet so foreign, to the inner life of man; and never had there been so much regularity united with so little faith.
As for the idea of right, it was raised little above civil relations; beyond which force reigned so supreme, that it seemed as if right belonged to it alone. When there exists in a nation a will before which everything disappears, or is reduced to silence, the sentiment of right perishes; and if this will is at the same time very active, and is possessed with the passion for displaying itself on every side, in war, in peace, manifesting itself everywhere, and considering every obstacle as illegitimate, it exercises over men the most formidable corruption they can be subject to, for it deprives them of the power and even thought of resisting—that is to say, takes from them their moral existence. Right is the right of resistance: there is no other; for take that away, and every other disappears. Bonaparte struck them all to the heart, at least in their relations with his power; and thus repulsing beliefs on the one hand, and rights on the other, he carried away from the order which he maintained, without having founded it, every guarantee but habit and his own will.
What Bonaparte did not give, the Restoration could give us: this was at once its mission and its nature. It was its mission, for a government has no other than that of satisfying the wants of the society in which it is established; not only the permanent and universal wants of society, but likewise, and above all perhaps, the special wants of its epoch. But even as Bonaparte had had to bring back external order, and to cause the cessation, by the despotism of a single will, of the anarchy of individual wills, so the Restoration, taking things where Bonaparte left them, had to infuse into external order the belief which constitutes moral order, and to replace the empire of will by the empire of right. Though less visible, these wants are not the less real; they are found at the bottom of every legitimate aspiration of every party.
It was also in the nature of the Restoration to respond to them. And from the first it was constrained to the institutions of liberty. I make use of this word, for it appears to me the only one by which the imperious necessity for the Charter can be expressed. Such constraints are not offensive to the power to which they apply, for it is Providence which directs them. The mistrust which the Restoration could not fail to excite exacted guarantees which liberty alone could offer. Thus liberty was perhaps still more necessary to the Restoration than power to the Consulate: but it is in the bosom of liberty that public beliefs are developed; it is under its shadow that general ideas germinate and grow, ideas adapted to the time and to the instinct of minds, and called forth and gathered by the secret wants of an entire people. Despotism never produces them; and the great convictions which have governed the world are never formed but against power or in a free state. The idea and the sentiment of right spring of necessity from liberty. This does not need proof, especially in modern times, when the bloody combats of the little Greek or Italian factions would not be, in the eyes of any one, liberty.
And this is not all: that which was a necessity to the Restoration was likewise analogous to its nature: it drew its force not from force itself, but from an idea. The word legitimacy has been, and will still be, much abused. One loses much by this abuse; for in trying to make it mean what it does not, we run the risk of depriving it of what it really contains of truth and strength. It expresses a right, real and obvious, though limited as rights always are, when existing simultaneously with other rights. This right has made the strength of the Restoration, and even the Restoration itself. The Restoration was the result of the influence which recollections of long possession and certain moral principles and sentiments accompanying them exercise upon the minds of men. Whatever we may think of right—its origin, conditions, limits—we should know that it is a fact, a powerful fact, and one which was felt as such by Cromwell and William III., as well as in the reign of Charles II.
It is the consequence of this fact that, founded as it is upon a moral idea, and sustained by those which are joined to or derived from it, the development of its force must be sought especially in the moral order where its principle resides. Elicited by convictions effected in virtue of a right, convictions and rights were at the Restoration the natural means of government. Subject to necessity even in the moment of triumph, obliged to yield in returning to the Revolution, it dreaded what the Revolution desired—it had to conciliate antagonistic principles and rights; but even that was a moral work foreign to its direct action, and which new sentiments and new ideas could alone accomplish.Bonaparte had rebuilt the altars, and restored its solemnities to public worship; and notwithstanding revolutionary clamours, the non-Catholics felt no alarm. After the Restoration, Catholicism came to demand, and liberty of conscience to fear much more. What had the Restoration to do to defend society and itself from this peril? Could it, like the Revolution, or even like Bonaparte, treat different communions now with severity, now with complacency, and arbitrarily restrain or permit their action? No: that would have been opposed to the general nature of its institutions, and have shocked the respect it owed to faith as well as to liberty. Another path was open to it: and that was, to lay vigorous hold upon the principles of religious liberty, to proclaim it in all its acts, to inculcate it in every mind, and to make it, in fine, one of its doctrines of government, one of its public creeds which, really adopted, are found everywhere acting by their own virtue, and maintaining order almost of themselves. All the wants of the new order prescribed to the Restoration such a course; and it had, partly in the necessities of its situation, and partly in its nature, what sufficed for this noble task. The protection accorded to religious and moral ideas was not, on its part, the confession of an error, for all these ideas rallied spontaneously around it. The respect in which rights were held was of great importance to it, for it drew its own title from a right; and the maintenance of the public liberties was not less its policy than their establishment, for it could not, like Bonaparte, pretend to despotism by victory. It was, in fine, its condition and its destiny to rule especially by the moral influences, to aid in their development, to base on their empire the order which it found restored, and to have recourse to force but rarely, and then with regret, as a means foreign to its nature, and the necessity of which rendered its employment grievous.
If we consider the occasions when the present government has tried this means, we shall be convinced, without difficulty, that the natural laws which rule it have had little to do with its use. Sometimes, as in the slightest popular agitations, we have seen it used with a precipitation and to an extent which exhibited less skill than inquietude; sometimes, as in the proceedings of the Cour des Pairs, indications of severity were observable sufficient to inspire much alarm, but which ended merely in correctional punishments. The movement has almost always appeared above the cause, and the effect beneath the movement. I do not know if a neutral observer is in the right to judge thus; but assuredly the employment of force, and the public threats of severity, have failed both in motive and address; and many believe that power has made use of them either wrongfully or unskilfully. Either of these faults would prove that the means of governing are improper.It is not merit to succeed by force even at the moment when it is invoked; but what government does not come to the end of its means? It is still necessary that, after having set it at work, it leaves it public, convinced that this was necessary; and that it has used the means so well as to render this need more rare. If the first of its convictions fail, power is suspected of timidity and malevolence; if the second, it is taxed with want of skill, and its employment of force has weakened instead of strengthening it.
I will not go farther; I have said enough to show in what system of government the Restoration seemed to me born, and how, in trying to leave it, it would lose its advantages without acquiring those of a different system. It cannot strengthen itself more by judicial rigour than by conquests. If fear ever became the machinery of its power—if, in order to maintain itself, it was necessary to terrify the interests, opinions, and sentiments it suspected—the more pressing would be the need, the more useless would be the weapon, and the danger would increase with the necessity. Our government, then, can still less than other governments rely upon the indirect efficacy of capital punishment. Rarely simple, and often in the complication of its effects more hurtful than profitable, this means would carry into the present régime more trouble than security. No one in France or in Europe will ever think that the Restoration is called upon to crush all it may fear. It has not been able to give such proofs of its physical force, that the minds of men submit as a matter of course to its frequent use. When it strikes, many people are tempted to believe it more severe than just, or more in danger than it is in reality, and its strokes awaken less the idea of its energy than of its danger. More than one government, after great severities, has been considered still weak; and in such case it finds itself in the worst of conditions—that of a power whose weakness provokes conspiracy, and which tries afterwards to fill up, by means of punishments, the abysses which that weakness has opened. The reason is, that force must exist before it pretends to inspire fear; and in the case of the Restoration, the sources of force must be sought for elsewhere than in the means of terror. I repeat that power itself has now an instinct of this; for it has not, while administering death-punishment, that confidence, that certainty of success, which is almost its only guarantee. It causes, yet fears the sentiments this melancholy spectacle may excite, without feeling assured of the terror it wishes to inspire; and this instinct is not a mistake, but the voice of nature. It is bound to moderation in punishment, just as in its exterior relations it is bound to peace. The Charter has abolished confiscation, and the Restoration justly honours the Charter. I do not demand the abolition of capital punishment; but I am convinced that, against its enemies, government gains nothing by this agent, and would gain much by showing itself very niggardly in its use.It can no longer have a physical and direct efficacy. Its moral efficacy is not so great in political as in private offences; it is powerless in inspiring aversion to crime; it is equivocal and mixed with the most various results when tending to the propagation of fear; and it is more feeble, more uncertain, and more perilous to the present government than to powers of a different origin and position. Is this enough? It would be well were this all. But many other reasons, and many more dangers, suggest themselves; and these I shall proceed to indicate.
What power seeks in the employment of capital punishment is security. I have shown that this it does not find; but that it often finds what it does not seek, and what it should and always does wish to avoid.
There are some simple truths which no one disputes, which good sense immediately admits, and yet which are no sooner admitted than forgotten. The reason is, perhaps, that being adopted without debate, we are not led to think of their consequences.
Here is a truth of this kind. Every government has a double character. Charged with maintaining public order and justice, and conducting the affairs of the state, it represents the social interest. Formed of men, and thus liable to the passions and vices of our nature, it has, besides, a personal interest, which is, to execute its will, and preserve at any price its existence.
That these two characters are united in power, that the one is legitimate, and the other illegitimate, and that institutions have for their object the constraining of the government to act by the former, and to fortify the people from the perils of the latter, who will deny? Who would even insinuate a doubt? Power itself would not dare to do so. But in this instance power forgets what it would not for a moment deny.
From the fact, that it is only called upon to act in the social interest, while it still preserves a distinct personal interest, proceeds this consequence, that all it does in virtue of the former character fortifies it, and all it does in that of the latter weakens it.
However frequently misunderstood, this is evident. I do not speak of legitimacy, nor of justice, nor of any moral obligation. Independently of every motive of this kind, it is clear that if power acts only for its own sake, in the sole interest of its will or durability, it separates itself from society, courts a risk of detection, and if detected, exposes itself to being forsaken or even attacked by that general force from which its own has sprung.
That prudence prescribes to power to show itself ever in its social, and dissemble its individual aspect, and that it is of importance to its existence to appear on every occasion the representative of the public interest, and not the minister of its own, would serve to show, if it were necessary to show, its continual efforts to appear what it is not, and to pass for the organ of society even when it acts against its wants or wishes.
To abjure its personal, in order to retain its social character, would be, on the part of power, an act of the highest virtue. To convince the people that it acts only in the general interest, and binds up its destiny in theirs, would be its greatest art. To keep itself apart, preoccupied with its own affairs, and in all the nakedness of its distinct existence, would be foolish and perilous in the extreme.
There was a time when governments could so act with less danger. When they drew their revenues from their own domains, when they possessed their places of war like an estate, when they formed armies of adventurers, attracted by the pay alone, and pledged to serve everywhere, then power had a separate existence, and a distinct form from that of society. If skilful, it still tried to identify itself with the country, and so received from it a much greater strength; but if incapable or passionate, it could isolate itself at least for a time, to live on its own funds, and preserve some reality whilst losing its public character, and allowing its personal sentiments and interests to predominate in its acts and language.
But this time is past: power, which cannot live of itself, can no longer live by itself. Everything draws it towards society. Does it want money!—society must give it: laws?—society must approve of them. If it acts, its acts arc judged; if it speaks, its words are commented on: the public weighs constantly upon it by the rule of necessity. As the representative of society, its strength may be great, greater than ever; but if special and isolated, it is a cipher. Alone to-day, it will be nothing tomorrow.
It has, then, the greatest interest in avoiding every appearance of egotism, and in making its public character obviously predominate over its individual one.
But there are traits which belong to one more than the other of these characters, symptoms which reveal the latter, but not the former. The employment of capital punishment politically is of this kind. It announces the predominance of the personal existence of power over its social existence, and shows it to be occupied with itself, and combating a peril which perhaps threatens only itself. And what is more natural? When we look at history, and ask why so much blood has been shed on the political scaffold, it is seldom that the spirit of past society rises to reply, 'That blood was shed for me.' Governments almost always present themselves alone to give account of these punishments: their own passions, faults, interests, commanded them; and next to the victims themselves, society suffered most. I know that the prospect of this future responsibility troubles power but little, and less because it is perverse, than because, like men, it is reckless; but we have at least gathered from it this knowledge, that the necessities of a power which kills, often false with regard to itself, are almost always so with regard to society; and that if it must kill in its own defence, that defence is necessary merely because it willed those things which suited no interest but its own.
This knowledge, little disseminated formerly, and almost confined to moralists, is now popular; it has become a sort of instinct, which reveals to us, in all their extent, the position and the illusions of power. When it is said that the illusions of what we call monarchy are dissipated, and its prestiges vanished, we know not how much to believe. It is not, however, in reality, a question of illusions and prestiges; it is that things themselves are changed: every sphere of existence or of action is enlarged; and that which was particular has become general, not only for society and its guarantees, but for the government and its profit. The citizen whose affairs took him little from his corporation, whose thoughts rarely wandered beyond the walls of his town, now knows himself to be engaged and compromised in affairs of the highest importance, and in the most complicated deliberations. The wordsjudgment of the state, political necessity, which formerly struck upon his ear without his comprehending their sense, although he admitted their dominion, awaken ideas within him which trouble, and sentiments which agitate him. He has indeed reason to be moved more than formerly; for this government, which then had its sphere apart, higher and greater, but also more special and restricted, has itself become much more general, more directly, more universally associated with the interests and life of every citizen. Does it require money?—It demands it from all. Does it make laws?—They are for all. Has it fear?—All maybe its object. The distinctions in the nature of great and small exist no longer for power: its relations are with the magistrates of a village, as well as with the chiefs of the state; it has to produce an effect everywhere, and everywhere receives some motive of action.And what is astonishing in the fact of the condition of government and the disposition of the people having changed? These changes are reciprocal, and correspond with each other. If power is no longer a mystery to society, the reason is, that society has ceased to be so to power: if authority meets everywhere with minds that pretend to judge it, it is because it comes into daily contact with these minds: if they demand that its conduct shall be on every occasion legitimate, it is because it has the disposal of all the strength of the country: if the public busies itself more with the government, government likewise acts over a very different public, and power is enhanced as well as liberty.
Of what, then, do you complain? Have you so little ambition that this displeases you! It is true you have lost the independence which belongs to a private life: your passions, and your personal interests, can no more have a place in the new order which surrounds you; you may not listen to their voice without its being known, nor obey their dictates without the reproach of failing in your mission. But what a mission is yours! If you are in harmony with society, the whole of society is concentrated and reflected in you. It is whilst offering itself entirely to you, that it asks you to live only for it. Formerly, you could confide only in a factitious policy, emanating from the ideas or desires of a single man, and tormenting nations to adapt them to designs they knew nothing about. But now policy must be true—that is to say, national—and that restrains the capricious actions or arbitrary conceptions of individuals. But what strength, what lustre, what energy belongs to a true national policy! What power is the best—that which represents the interests and the will of a people, or that which accomplishes only the thoughts, and responds only to the interest, of a man! I own I have no hesitation in deciding.
Hesitation, however, is of little consequence. I only insist at present upon this new state of society, to prove that power is not free to choose; and that if its conduct were to appear dictated by the necessities of its personal situation, rather than those of the social, which should be manifested in it, it would soon fall into a profound weakness; for society would soon be aware that it was separated from the fate as well as interest of the public, and acted only for itself. And how can it be supposed that capital punishment, employed politically, will not awaken this idea in society! There are fearful times, I know, when the people themselves call for and excuse it. I do not believe nations to be secure from those frightful maladies which engender human passions and errors. But a crisis of this kind is rare, and not of long duration; and it is precisely when it does take place that capital punishment becomes most odious. Remember the burst of kindly feeling with which France turned towards the emigrants in spite of all mistrust, past animosities, and every possible prejudice, the revolutionary policy was overturned, because it could neither become just nor remain cruel.Since that period, capital punishment has been in political hands a weapon which compromises power more than serves it, and to which power has scarcely ever recourse but when in peril on its own account and from its own errors. It might be said that society, terrified by what it has seen, will no longer accept the responsibility of any political punishment, but is determined to believe that if it must be employed, government alone has need of an instrument which its own faults have rendered necessary. And that is especially true of a government which is not of yesterday, but has already held out, and is able to take its true position. If it were now only struggling into life, we might think with regret that it had not had time to become known, or to dissipate by its wisdom the perils surrounding it, and that examples were still necessary, and the severities of to-day only the forerunners of peace tomorrow. But if the government has been long enough established, if legal means and leisure have not faded in their influence, if it has been able to show itself wise, and become strong by its harmony with the public, then conspiracies cannot spring up again, nor punishments recommence, without society immediately repelling from itself both the necessity and the blame. Then power is again invested with this personal and isolated character which destroys it: it is no longer social power; and society, instead of seeing its own reflection, beholds only an interest which is not its own, wants which it disavows, and intentions in which it has no share. The justice of such a government is not true justice, and its necessities are not real necessities.
There is, in fact, in political chastisements, as in other things, a true justice and necessity, often distinct from legal justice and the necessities of power. Governments have long given up troubling themselves on the subject. In barbarous times—and their duration was long—legal justice did not seem to have been required at all; the personal necessities of power being sufficient. When attacked, it had every right to defend itself, and the execution of a conspirator called for little more delay or formality than the death of an enemy. By degrees, however, legal justice was introduced into public policy, the people began to think, and power was forced to admit that there were other things besides war, and that against crimes of this nature, as of every other, laws, forms, proofs, and judgments were necessary. This was an immense progress, and it is now approaching its consummation. But the career of progress is not yet stayed—the public cry is still, Go on! The laws which regulate the chastisement of political crimes may be insufficient or even bad; and the necessities which deliver up culprits to the laws may be false.Society goes the length of supposing this more especially when the question is of capital punishment. Suspecting that power is isolated from it, and looks to its own interest alone, it is at the same time convinced that that interest does not suffice to legitimise punishments, and that power has not the right of defending itself at all risks. Sufficiently enlightened to know that infallible justice does not belong to any law, and that were laws even without fault in themselves, the faults of men would corrupt them in their administration, society now neither relies upon the personal wants of power nor upon the legality of its processes. It would have these wants founded on reason, and these processes in equity. Whether it obtains this or not, its demands continue; for it is aware of the justice of the debt, and though refused, it is not forgotten. Moreover, has not one political condemnation, legally pronounced, succeeded better in our days in convincing the people of its necessity and justice, than the most arbitrary executions of former times? Let not power mistake this new exaction of the public; for it is a powerful and irrevocable one, and is allied to all the progress, and all the moral wants of civilisation and of the human mind. Let it not flatter itself in thinking to escape by taking refuge behind the laws: it has long rejected their yoke, and now it would make them a shield when beaten on an open field, and would possess itself of the citadels armed against it, and then think itself inviolate. But it will be pursued to this asylum, which will be shown to have been profaned more than once by deceit and iniquity. It may plead that the punishment was legal; but it will be asked if it was just or necessary. Is it, indeed, so politically? And in what case, and under what conditions? We must descend to these questions, for the public thought itself descends to them, and will have an answer. A government which would give itself no concern in such questions, but say with Pilate—'I wash my hands of the blood of this man: see ye to it,' such governments would soon learn that they do not escape; that no deceit, no laws, can save from impending danger a power at once egotistical and hypocritical, which, in separating itself from society and truth, makes for itself a justice which is not true justice, and a necessity which is not the necessity of the country.