Need I say that if there were a justice anterior and superior to legal justice, there would be no legal justice. Montesquieu has made this principal truth the principal idea of his book: 'To say that there is nothing just or unjust but what positive laws order or forbid, is to say that rays were not regular before the circle had been traced.' It would be strange if natural justice, in virtue of which legal justice exists, should cease to be from the moment the latter was written. But it does not cease to be, or even to speak; it has in principle its general conditions, and on each occasion its particular will, which legal justice is bound to carry out.
I shall mention presently the progress of a struggle between the two; but we must first inquire what true justice is, before supposing it to fail in obtaining what it desires. Morally speaking, there are two parts in every action—the morality of the act itself, and the morality of the agent. The morality of the act depends on its conformity with the eternal laws of truth, reason, and morality, which no man knows fully, but only aspires to know, judging according to the degree of that knowledge of the merits or demerits of human actions. The morality of the agent resides in the intention—that is to say, in the idea which he has himself conceived of the morality of the action—and in the purity of the motives which carry him on to its accomplishment. When these two are at variance, the fact is shown in the daily conduct and common language of men. 'He has done ill,' they say, 'but he intended to do well;' that is, the action may be absolutely culpable, and yet the agent personally innocent.
But will Divine justice consider only the intention? or will it punish error? I dare not decide. Error is often caused by vanity, passion, the preoccupations of personal interest, or of pride—that is to say, by what is wrong. How does this wrong affect individual unconsciousness of error? It is seldom given to men to decide the point; God alone can see clearly into the depths of the conscience. But this is certain, that the judgment of man can neither absolve the guilt of the action because of the intention of the agent, nor condemn the agent without taking the intention into account. Thus our nature wills it.
Unable to solve such a problem, legal justice is obliged to act as if it did not exist. It declares certain actions to be culpable, and punishes those who commit them, without troubling itself to inquire whether they are guilty in intention or not. And in this there is no reproach to be cast on legal justice; for the effects of bad actions are in themselves so fatal to society, that it cannot give up to individual opinion the right of deciding upon them: it declares their nature, and takes care that its laws are observed.
But there are here two remarks to be made. First, that society thus absolutely incriminating certain actions, is bound to be in the right in its condemnations; and second, that although the laws cannot be rendered subordinate to the intention of individuals, they cannot abolish this element of man's judgment; and when, therefore, in their application they have the misfortune to punish an intention evidently pure, the natural sentiment of justice is offended. Legal justice, then, runs a double risk—that of erring in its general incriminations; and that of encountering, in the application of its rules, particular facts in which a circumstance occurs it has not taken into account, and which, nevertheless, will act powerfully upon the mind of man—honesty of intention. If there is a species of action in which this double obstacle in the way of legal justice is most real and apparent, certainly it is political crime. I have already said that the character of such an offence is variable and even conditional, and that, moreover, it is difficult to decide upon and appreciate it justly. Who does not know, too, that error is nowhere more easy, and that the purest intentions are here often associated with the most immoral acts! Some persons, struck with these facts, have gone so far as to think that, morally speaking, there are no political offences; that force alone creates them; and that good or bad fortune is the test of their culpability. I do not share in this idea in any degree. It germinates in those unfortunate times when the duties and rights of citizens disappear, or become obscured, so to speak, under the mantle of despotism, or in the storm of revolutions; but the light has not ceased to be because an eclipse has hidden it. The endeavour to change the established government, even if it did not involve any private crime, may unite in the highest degree the two general characters of crime—the immorality of the act, and the wickedness of the intention. It matters little, then, that its end is political; it does not less constitute a true crime, which ought to be punished, and perhaps with justice. Neither insurrections nor conspiracies have the privilege of innocence; and if virtue has often succumbed in its resistance to tyranny, history has no want of criminal conspirators.
What is certain is, that on no occasion is legal justice more exposed to deviate from natural justice, or has more difficulty in identifying itself with it. I leave out of question, as may be seen, everything that corrupts legal justice itself; I do not avail myself of the passions either of power, or of the judges, nor of the facility offered of twisting the laws, nor of the obstacles which the defence of the accused may meet with, notwithstanding the strict observation of forms.Suppose impartiality and liberty everywhere, and yet I say, or rather see, that even then, and through the nature of things, true justice is in danger. The moral merit or demerit of such an action has not that degree of certainty which belongs to private crime: it depends upon an infinity of circumstances, which the foresight of the law cannot reach. The consideration of intention has more power here than anywhere else; for doubt is more easy, motives less directly personal, the causes of illusion more pressing, and the passions perhaps less impure. What will prevent these facts, for they are facts, from acting upon the public mind? Who will hinder it from seeing and taking account of them? The more difficulty the judges have in adapting the laws, the more the citizens, who judge also, will be shocked to see the laws indifferent to reasons which influence their own judgment. The imperfection of legal justice will declare itself in all its extent; and, in fact, what is the imperfection of justice but injustice?
This is felt: power has not been slow in comprehending that, in placing itself thus upon moral ground, in considering actions in their communication with the laws of eternal morality and the intentions of their authors, it would often have great difficulty in defending and proving the legitimacy of its decisions. The attempt has been made to cheat the instinct of men, to elude their disposition, to compare legal with natural justice, and in order to succeed in this, the question has been carried elsewhere. Power has taken up its ground in the social interests and the maintenance of order; it has represented crimes as hurtful rather than culpable; and shunning the absolute justice of punishments, it occupies itself with their utility.
I might say much upon this transposition of the question, but I must hasten towards my end, and shall do nothing more than indicate the error. It is not true that crimes are punished especially as hurtful, nor that the ruling consideration of punishment is its utility. Attempt to condemn and punish as hurtful an act which every one considers innocent, and you will see how much you will revolt the minds of men. Men often believe acts culpable, and punish them as such, when they are not so; but they cannot endure the sight of chastisements descending from a human hand upon actions which they think innocent. Providence alone has the right of treating innocence severely without accounting for its motives. This astonishes and troubles the human mind, which, knowing that it cannot fathom the mystery here, seeks beyond our world for an explanation. But on the earth, and where human beings are the actors, chastisement has no right but over crime. No public or private interest can induce a society, however disorderly, to believe that where there is no crime, the law may still punish to prevent a danger.Moral offence is, then, the fundamental condition of chastisement. Human justice exacts this imperiously before it admits the legitimacy of punishment; and legal justice deceives, when, to free itself from the exigencies of natural justice, it attributes to itself another principle, and another end, and pretends to find them in utility. But it cannot thus escape from its name, which is justice, and become merely a combination, more or less skilful, of means of defence for the profit of such or such an interest. They confine the madman who has taken life, but do not punish him; because, being incapable of reason and responsibility, he is incapable of crime. Let the penal laws, then, not hope to escape, under the pretext of social interest, from being obliged to conform to the rules of natural justice: they will always have to submit to this criterion, whether in their generality or application; and when power judges and punishes, it can neither change the conditions with which the judgments of moral justice are formed, nor deviate from them without causing a universal feeling of the iniquity. That being understood, and legal justice thus brought back to the empire of natural justice, I will admit that social interest is also one of the motives which enter into the discrimination of offences and their punishment. It is not the first, for it would be without value were it not preceded by the moral reality of the offence; but it is the second, for society has the right of condemning and punishing whatever is at once culpable, hurtful, and of a nature to be repressed by the laws. Moral criminality, social dangers, and penal efficacy, are the three conditions of criminal justice, the three characters which ought to be met with in the actions it condemns and the punishments it inflicts.
That is the true ground on which legal justice is established. It participates in our greatness and our misery. It is in relation at once with the sublime nature of man and the infirmity of his condition. It cannot be pure moral justice; but it is obliged to retain its principal characteristic of punishing those only who morally deserve punishment. On this condition it undertakes to repress everything that is hurtful to society; and in this design of which an interest, or, if you please, a terrestrial necessity, is the principle, it meets with another limit, and submits to another condition—that of the efficacy of the means it uses to prevent the evils it fears—or, in other words, the efficacy of written laws and external chastisements.
I arrive now at the question, thus reduced to its true elements, and examine what is, with regard to political crimes, true legal justice, and more especially with regard to capital punishment.
Let me remark, in the first place, that of the two constituent characters of every offence—the immorality of the act, and the social danger—the more the latter predominates over the former, the more the legitimacy of capital punishment becomes doubtful, and its application cruel. There are some crimes so evident, and so odious, that the instinctive feeling of men calls for the death of the culprits as the only chastisement proportioned to the deed. But a single glance will show that these are not the crimes which can put society in great danger. They outrage natural feelings and moral laws, and show in the criminal a degree of perversity or ferocity which our nature hates to look upon, as if it were insupportable to find to what a point of depravity and dishonour it could attain. Social danger is a complex idea, the fruit of reflection and knowledge, which does not awaken in mankind this spontaneous and violent antipathy. If, in all offences, the two principles of criminality were equally and exactly balanced, the penal laws would have but little trouble. But this is not the case; for offences are, so to speak, diversely composed: in one it is immorality which predominates, in another danger; and according to the relations of these two elements of crime, the punishment must vary, not only for the sake of justice, but because the public feeling expects it, and will not see justice in the punishment on any other condition. But capital punishment being the gravest of all punishments, and much the more so now when human life is more generally respected, it is naturally adapted only to crimes of such wickedness as would perhaps provoke its infliction even if it were banished from the laws. Wherever social peril is the principal element of the offence, capital punishment is no longer founded upon our moral nature; it is excessive both in justice and in public opinion.
Every one admits that, generally speaking, political crimes are in this position. They may be detestable, but, in general, they are dangerous; and it is in this latter character that the law punishes them with severity. Let me inquire if capital punishment is a necessary, or even useful severity. It is with justice I occupy myself at this moment. But it is not in the power of any law to contrive that, in the opinion of men, the justice of a punishment should be estimated chiefly according to the moral gravity of the offence; and this measure of justice is the more natural, that the punishment strikes most severely in the person of the culprit who submits to it. The justice which deals death because of social peril, when the moral criminality is feeble or doubtful, carries injustice in the face of it; and if it happened, as it sometimes does happen in political affairs, that the intention of the accused was pure, or at least excusable—that he was mistaken in the moral character of his action, and that his error proceeded from disinterested illusions—then capital punishment would assume at once the appearance of iniquity. It would be no longer a chastisement, but the sacrifice of a human victim to terrestrial and mortal gods.
Formerly it had its excuse, I will not say in the violence of political passions, for this violence is, and will be still greater, but in their personality. Political struggles, like war, were formerly struggles, man to man, between rivals pretty nearly equal, and life was bound to the fate of power. Capital punishment, then, appeared as a species of law of retaliation, analogous not only to the state of ideas, but of realities. Danger was as near and personal as in battle. This is so true, that the greater part of the laws of barbarism—so minute in matters of private crime, so attentive in regulating the retribution according to the nature and amount of the offence—make no mention of capital punishment for a political cause. Justice had no pretence for entering here: it was of war the question was, and the danger was so visible and pressing, that the right of retaliation was too obvious to require to be written in the laws. Later, it was written, and even subjected to certain forms; but it was still retaliation, for political crimes never menaced power without first menacing the lives of men, and political perils were always preceded by personal ones. Power had thus all the rights of personal defence; but at present, the conditions of peril, as of power, are changed. The king of France has no longer enemies in the neighbouring chateaux waiting in ambush to seize his person, imprison, and perhaps kill him, and that even without the hope of reigning in his place, but merely from avarice, from vengeance, for the recovery of a domain, or for a right which he disputed, or had ravished from them. The greater number of conspiracies are vague, and a thousand barriers rise up between a government and its enemies. Instead of an individual and certain danger, the question is commonly of a complicated and social danger, formed of confused projects and means of action frequently ridiculous. How can it be thought that crimes of this kind call for capital punishment as clearly or loudly as they formerly did? Such culprits, when preparing the crime, placed themselves, as it were, at the foot of the scaffold erected by their own hands. Now this scaffold is raised laboriously, and the culprits must almost always be dragged to it from a distance, and made to mount before the eyes of a public who have seen neither distantly nor at hand either the crime or the danger. I do not believe that the condition of power is worse than it was; but if it is better, it is not power alone that should profit by the favourable change, but likewise justice. Now, justice very rarely authorises the employment of capital punishment against those crimes in which there is more appearance of social danger than moral wickedness. What will be the case if we sound the peril itself deeply? This is the motive of the punishment, the fundamental element of the criminality; and this element should at least be powerful, and the motive have the extent and reality which are attributed to it.
I will presently enter in a direct manner into this question; and I will therefore remark upon it here only in passing, and with regard to its effect on the justice of capital punishment. Observe, the question is of a social danger. I myself think with the laws. When public order is menaced, and the general forms of government or the persons who represent them are attacked, it is society which is in danger. A government must be bad, indeed, and no one can sayhowbad, before society prefers the terrible chance of distraction to even the slightest hope of reform. There are doings and secrets hidden by Providence under a veil which it alone can raise.
This admitted, I still insist and repeat that the question is of social danger. In order that society may suppose the peril to justify capital punishment, that peril must be its own, and in the danger of power it must see its own danger. However wearisome the words may have become, it is still necessary to repeat, that power exists only for society, and that all its rights correspond with its mission.
But is it quite certain that society is really so often in danger as power believes it to be? Is it quite certain that the dangers which power dreads are indeed those which it is the object of the penal laws to prevent? Is it not possible that they are neither so great, nor perhaps at all the same, as those which have appeared serious and frequent enough between power and society to render death a legitimate punishment?
I affirm nothing, for nothing can here be affirmed generally and beforehand; but I consider that danger in its special nature is the principal element of criminality, and I recognise in it a double character. It is not certain that it does exist, nor that it is really the social danger against which the laws are directed.
The same differences which separate political from private crimes in their relations with morality, distinguish them still in their relations with the public interest. That assassination and theft are always equally hurtful to society, and morally culpable, is never doubted, and remains true whatever may be the faults or merits of the government. There is no relation between the conduct of power and the danger occurring to society from crimes of this kind. Under a tyranny, as under the most liberal regime, the same danger exists in all its extent and intensity.
In the case of political crimes, on the contrary, danger—I mean social danger—varies according to the conduct of power, and the advantages derived from it by society. Certainly, in 1802, France was in more danger from the fall of Bonaparte than in 1814; for in 1802 Bonaparte served France faithfully, both at home and abroad, while in 1814 he compromised and oppressed her. I attach no value to a permanent and blind hostility to power; but power in its turn has no right to pretend that it will be always found equally good and equally necessary, and that its dangers are always alike dangerous to society.
Thus in the very nature of that social danger, in the name of which they would take life, there is one cause of uncertainty. Here is a second cause. In private crimes, as I have already said, at the same time that the wicked and hurtful character of the offence is indubitable, its reality is certain. A murder or robbery has been committed, and a search is made for the criminal. It is certain that an offence has been committed against morality, and society put in danger, and upon whom will the punishment fall? In a political matter, the reality even of the crime is, as we have seen, often called in question; and the social danger is likewise a matter of dispute. There are men accused of conspiracy, and in order to their conviction, it must be proved that there has been a conspiracy, or, in other words, that society has been put in danger; and if the conspiracy is not proved, neither will the danger be so, at least in the eyes of the law. While in other cases the wickedness, danger, and reality of the crime are positive data, from which the accusation sets out, here the accusation goes first, and may be proceeded upon without there being a legal crime, a social peril, or a wicked act at all.
I proceed always, and it is impossible to do otherwise, upon the hypothesis, that the danger of society and that of power is one and the same. It is the only legitimate and the only legal hypothesis. It is fully established when the power is good; and it is long before it can become so bad that society may reasonably desire its fall; and in the immense interval which separates these two terms of its career, it is not to be doubted that power has a right to make use, for its own preservation, of the laws instituted for preserving the public order in its own person. But if power forfeits this right only through greater crimes, or more absurd errors, its faults before this fatal epoch do not cease to have an influence; they have the infallible effect of weakening the feeling of society as to the danger of power and its own, and thus they introduce into legal justice, especially when severe, a measure, or at least an appearance, of iniquity. When governments separate themselves from society, and feel society retiring from them, they flatter themselves they can bring it back by severity against its enemies. They are mistaken. Society judges of the severity by the opinion it has of its own danger, not by that which it forms of theirs. If only moderate punishments wore employed, it would perhaps consider them equitable; for, though discontented with power, society does not desire its destruction, or think that it has lost every right of using the laws in its defence. But if government makes use of the laws, as if society were in full harmony with it, it awakens and fortifies the feeling of disagreement, deepens the abyss which already separates them, and allows the time to pass for filling it up by other means.
Such are the conditions to which legal justice is subjected in political affairs; such are the facts in the midst of which it works, without power to escape from their bondage. It has to do with crimes whose moral perversity is sometimes equivocal, in which the intention may be excusable, and which cause more danger than aversion. It must rather consider, therefore, the danger than the immorality, and desire the prevention of perils which are not always equal or certain, nor perhaps menace alike power and society—thus causing society to doubt the equity of punishments, and giving power an air of egotism and isolation fatal, especially in our days, to its strength. When legal justice is called upon to pronounce judgment on such offences, it finds itself before a natural justice which takes account of every thought, weighs every fact, and speaks so loudly, that it must be faithfully obeyed. What is in such circumstances the character of capital punishment? Everything that could otherwise confer upon it a certain degree of legitimacy fails to do so here, not only in the eyes of attentive reason, but of the spontaneous instinct of men; and at the same time it meets with everything that can make it unjust, suspected, and odious; it is directed against danger and crime, but without the assurance of striking at a legitimate danger or the true criminal; and in order to arrive at justice, it runs a thousand chances of committing iniquity. And let not power aver that these chances are but little apparent; let it not flatter itself that the public is not aware of them, and show itself, in dealing justice, less exigent than truth demands. The public knows much of its own rights, and of the rights of true justice; and what it is still ignorant of, it will be taught. All such questions will be brought forward and debated over and over again. Men will learn to understand them, and they will insist upon the rights they discover themselves to possess. Truth will be aided in its entrance into their minds by their interests, sentiments, and even passions; and in proportion as it gains ground, capital punishment, flying before justice, will be driven for refuge to the last asylum where it can defend itself—the necessities, if not of society, at least of power—and thither we must follow it.
I might dispense with this part of the question. If capital punishment is of little efficacy, and I think I have proved the fact, how can it be necessary? However, I will glance at the question, even at the risk of meeting by the way the indirect paths which have conducted me to it.
Let it not be forgotten that I do not propose the legal abolition of capital punishment. Were I to demand this, it would be properly answered, that the existence of such punishments is necessary, though their application may seldom be so; and I would then have to demonstrate that not only is there no need of the punishment of death, but that it is absolutely useless to have it written in the laws. I admit that these are two distinct propositions which have no dependence on each other, and with the latter I do not meddle. I do not break this arm of capital punishment in the hands of power, I merely maintain that, in general, it is wrong to use it. I examine, then, very freely what is called its necessity; for if, in general, this does not exist, it is well to know it; and if ever real, we shall do no harm.
I have shown that the efficacy of punishments varies according to times, manners, and different states of civilisation. The case is the same with their necessity, not only because they are only necessary when efficacious, but for more direct reasons. Formerly the public strength was small, and individual strength great and licentious; and the severity of punishment made up for the insufficiency of the means of power. The wisest kings of the old ages directed frightful laws against the slightest disturbances. Were they wrong in so doing? I think not. Physical order was everywhere met by enemies capable of destroying it, and always ready to attempt its destruction. Central power, without administration, without police, stripped even of the chief rights of sovereignty, and reduced to the personal resources of the sovereign, could not defend society, or even itself, without constantly opposing physical force to physical force; and very frequently the cruelty of the laws, and the number of punishments, proved only its wisdom and desire to protect the public. The chronicles of these times, too, especially praise as just and popular those princes who punished severely and frequently. They were, like the first heroes of Greece, occupied in purging society of its bandits and monsters.
But what would society of the present day think of a power which, to maintain order, had recourse to such means? It would consider such a power as odious and insane; and this because the means of order have changed with the social constitution. On the one hand, order is maintained, as it were, of itself by the general regularity of manners, the universality of labour, and the public knowledge of the true social interests; on the other, society is concentrated: the public strength is immense, and individual strength small and little aggressive. Every physical resource and every moral influence are placed in the hands of power: it disposes of the riches of the country, of its magistrates, and of its soldiers: no one is too great or too obscure not to fear it. It is everywhere, and everywhere ready to prevent crime or danger. What is the great merit of this new condition?—The maintenance of order at the expense of little blood. When disorder has been great and general, it was not the effusion of blood which could stop it: it was by good administration, not by punishments, that Bonaparte established order in France. Five hundred years earlier, and after crises much less important than revolution, they bordered the roads with gibbets, and often without success.
That which is true of the necessities of social order is also true, and even more so, of the necessities of political order. Power can now defend itself at the cost of much less blood than society.
But let us take a nearer view of the varied characters of the old and present perils of power. Whence formerly proceeded the dangers of a sovereign, or even of a minister? From his rivals and competitors. The House of York disputes the crown with the House of Lancaster, and if one of the two exterminate the other, it will reign in safety. Charles VII. had a favourite, Giac, whom the Constable of Richmond carries oft', judges summarily, and puts to death; and then the constable returns to exercise a dominion over the king, which he has assured to himself by the assassination. Cardinal Richelieu struggles against dangers of the same kind, and defends himself by analogous means. Those who menace men in the possession of power are those who desire its possession. Political questions almost always occur between individuals; and death, which has power to decide either way, is called a necessity.
Where, now, are these enmities, and this personal ambition, which power thus disputed? Who flatters himself with seizing or preserving supremacy by the mere destruction of an enemy? No one. I do not speak of ministers: factions are not always mad; but none is so much so as to think that their chiefs may be invested with the ministry, by killing those of the opposite faction. As for sovereigns, more than one in Europe believes himself menaced; but is it by a rival or a pretender? Have the revolutions of Spain, Portugal, Naples, Piedmont, been the fruit of a litigation for the throne, the work of an ambitious subject?
It is evidently not so. The nature of political dangers is changed. The struggle is no longer between men, but between systems of government. The fate of ministers, or even that of dynasties, is not regulated by the fate of their adversaries, but by that of the system they adopt or represent. Formerly communities had masters, between whom the battle was fought; but now they are really free, for it is from them alone, or the great parties which divide them, that power can draw not merely its strength, but its pretensions. From them, also, can its dangers alone arise. The question is no longer who governs, but how he governs? Individuals are no longer, I repeat, but the instruments and interpreters of the general interest. Is it not clear that against such dangers, and against such adversaries, capital punishment is neither powerful nor necessary?
It has, however, one effect; and it is this: at the same time that it cannot destroy those whom power wishes to destroy, it alarms those whom it does not wish to alarm. Its blows have at once less force and more extent than is necessary. The man it reaches is nothing in himself; he is feared and destroyed only on account of his connection with certain interests and general sentiments wherein the danger really resides. They desired to dissipate the danger, and have crushed only a man; and yet the stroke is felt throughout the whole sphere of interests of which his was the organ. These interests do not die with his death, nor are they even sensibly weakened; but the survivors estimate the intention which has killed him; and say that if it were possible they also would be killed—which, however, they know is not possible. And this persuasion is not only spread throughout the interests which exactly correspond with the conduct and language of the victim, but also throughout those connected with him by more distant relations, little felt, perhaps, during his life, but now compromised and menaced by his death. Thus power, by being mistaken in the nature of its dangers and enemies, brings upon itself an immense evil without obtaining the good it sought. It is doubly deceived in the importance it attaches to a man; considering him both greater and more insignificant than he really is. It has forgotten that, in ceasing to be the strength of his party, he has become its symbol; and that what he represents can no more be abolished in his person, than his person can be touched without its being felt throughout the vast circle of which he forms a part.
In this, again, the employment of capital punishment is a perilous anachronism. It is addressed to other times, other force, other dangers. It does not obtain what it promises, and it produces what is not wanted. It troubles or irritates the mass of society, to prevent the irritation and trouble occasioned by the voice or presence of an individual.
And is it now necessary against this mass itself? That would be a pity; for it would be all the more difficult to direct, and I have shown how doubtful its moral efficacy is, and that its physical efficacy is impossible. Nevertheless, if the necessity spoken of has any reality, it must be there, for the danger is there as well as the question. The possession of power is no longer the object of private struggles, once sustained by such bloody means; but the system and conduct of power are debated between it and society; and the former has indeed great need of defence, for it is vigorously attacked.
Why is it so, or rather with what intention is it so? This is the grand question. The rivals who formerly disputed the empire could not all possess it; and they were therefore obliged to kill each other. Is it a combat of the same nature which now takes place between power and society, or those great portions of society which it considers enemies? Is there that radical incompatibility, that impossibility of co-existing, which there is between two individuals who both pretend to the same place or the same property!
This is not, and cannot be. What its adversaries demand of power, is not the position it occupies, but a course of conduct which suits their views. General interests never govern in person, but desire to be governed according to their own feelings and desire. And this desire, morally speaking, the established government can always accomplish. If it will not do so, or does not know that such is in its power, the incapability may arise, though it is not in the things themselves: it is power which has created it, and the vexatious necessities thus created are its own fault.
Once set out in the way where it meets with such difficulties, can it turn back? Or if it persists, and proceeds in employing the means which those necessities command, will it succeed in its design? I affirm boldly that it will fail. In our day, every government which, through its misdeeds, draws a line of distinction between its own necessities and the social necessities is lost. The most terrible use of capital punishment cannot save it, for it can never take lives enough. We have seen situations of this kind: Bonaparte imposed upon himself the indefinite necessity for war, just as the Convention did the indefinite necessity for death: the Convention killed many, and Bonaparte vanquished many; but the time came when both the scaffold and victory refused to serve their former masters. Social necessities, repressed for a time, regained their dominion; and the power which had disowned them saw itself incapable of supporting the factitious necessities which it had put in the place of truth.
I do not admit the natural necessity of capital punishment. Or if I do, for the sake of argument, it will be only to show that the admission would avail nothing. I do not suppose that any power ever existed which took no trouble to insure its definitive success, and aspired no higher than the postponement of its ruin. In fact such power does not exist; for if a government found its ruin certain at the end of the course it followed, it would immediately leave that course: what it hoped from it was really safety. But if it were so egotistical and careless as to look no farther than the present, I would again counsel it to beware. It might formerly indulge in this indifference, and count upon a long sufferance; but now everything goes quickly, the more so that society is calm, and exhibits few tokens by its agitations of the immense strength it can wield when necessary. The approach of the Revolution did not escape the inert foresight of Louis XV. If new revolutions were still nearer, perhaps they would be still less felt under the steps of power. It would do wrong, then, to be satisfied with precautions when the time would be so short and the means so uncertain.
When we inquire on all sides into the necessities and dangers of power, from not one quarter comes the answer that capital punishment is called for by necessity, or can lessen or dissipate danger. I have considered it in all its bearings and effects; and I have almost always found it without legitimate motives; without virtue when it has, if not legitimate, at least real motives; seldom efficacious; and still seldomer just. What remains, then, but the memory of its old services! Revolutions make successful use of it, it is said, and will do so still. I know it; but revolutions are not permanent; and do governments think themselves of a like transitory nature? Prodigious error! Governments would imitate them in displaying the same strength and attaining the same results. But they forget that it is their business to lay at least the foundations of that permanence which it is the fate of revolutions to destroy, and to perish in destroying. But after all, the mistake is not surprising; for it is in our day, and perhaps for the first time, that this difference has clearly appeared. Up to the middle of the seventeenth century, revolution was, if not the permanent, at least the habitual state of European society. Delivered up to force and to rival forces, and to rivalries which were really wars, society knew neither the conditions nor the means of stability and order. The same ignorance in this respect possessed government, factions, and people. They all in their respective fortunes made use of the same arms, fell into the same practices, and produced the same results. Society has now more ambition. In tyranny or disorder it demands of government quite another thing than mere change of name. It knows what it ought to have, and what it can to do.When the physical world came out of chaos, it still had its crises; but it also had its regularity, its repose, and its preserving laws. Though slower in emerging from disorder, the social world, the world of man, has begun to comprehend the profound difference between a state of peace and a state of war, between order and disorder, between revolutionary and regular governments. Forces differ as well as ideas, the means as well as the end. I admit that capital punishment is of use in revolutionary policy; but it is so in no other. A regular government making it a necessity, and employing its aid in laying the foundations of its repose and duration, would place itself in the path of revolution. If it proceeded only half-way, that which made the strength of revolutions would be its weakness; and if it entered fully, while changing its character it would change its destiny, and devote itself to the destruction which is the fate even of successful revolutions. Politically, capital punishment must in the present day be either a rapid succession of bloody oblations to the insatiable divinities, or a useless sacrifice to impotent idols.
Power itself, I repeat, feels this; its confidence in such means is rather a prejudice than a belief, and, like all prejudices, occasions disquiet and hesitation even at the moment of action. It, however, persists in this means; and we must state the true cause, stripping it of its pretexts and delusions, and show to which divinity the oblation belongs. This cause is neither justice nor necessity—it is fear; and not that legitimate and prudent fear which looks danger in the face, and takes means to avert it, but the blind cowardice which desires rather to be saved from itself than from the peril, and which, without rational intention or preconcerted design, adopts by chance whatever presents a hope of escape. Prudence desires safety; but fear dreads the aspect of the danger, the reality of which may perhaps be greater to-morrow. But this matters little; power will have shaken off in a moment the anxieties of its situation, and will be persuaded that it has no fear. This intractable passion never changes its nature; what it is in the obscure incidents of private life, it is still in the bosom of greatness, always more occupied with the torment than the danger; always giving itself up to vain and unreasonable expedients, if they only offer a little shelter or a little respite. And when the fears of faction are joined to the fears of power, when this blind sentiment, penetrating the mass of a party, becomes a collective passion, and pushes forward one upon another individuals who fancy themselves without personal responsibility, then reason is at an end, every calculation disappears, and there is no longer a question of necessity, utility, or justice. Fear becomes its own necessity; one of those fatal necessities the empire of which endures the more it fails in success, and into which men fling themselves both mechanically and passionately, without being in a state to reflect. A terrible example of this was given by the Convention and the Jacobins.
But fear itself is deceived, and this new and last advocate of capital punishment sees itself every moment cajoled by the hopes which attach it to the cause. Such is the power of facts, even when misunderstood and violated, that in our day political severities can no more dissipate fear than danger. Their inutility is seen even by the blindest fear; they can neither procure for power, nor for the terrified factions which make use of them, more than a momentary lull, itself a source of new anxieties. Let parties especially take heed that their condition is not less changed than that of governments. Formerly many individuals retained their strength and importance after the defeat of their party; they preserved in their original force the guarantees against reaction, and still negotiated on their own account on fair conditions. But now what are ministers when their power has left them? What becomes of the most considerable men of a party when that party is overcome! They are lost in the mass of citizens, which the public laws and true justice alone protect; they may no longer act for themselves, and have no other defenders than those principles which are obstacles to every useless severity, and every pretended necessity, and which, in the matter of punishments, interdicts to power everything with which society can dispense. It is then now more than ever the interest of all, of parties as well as of power, of individuals as well as of parties, that these principles should be recognised and introduced into the practice of government. I will try to point out the means.
Is there any one who does not demand the legal abolition of capital punishment as a political engine? I think there is, and I have contracted the obligation of proving the fact. I might, as is often done, have raised my voice against the severities of our penal code; I might especially have said that, drawn up on the issue of a violent crisis, it must bear the impress of the necessities of the day, real perhaps at that epoch, but now false and tyrannical. Revolutions have this deplorable effect in common with barbarism, that they bequeath to living generations the terrible laws which were made to put a stop to their fury.Almost everywhere in Europe the nineteenth century bears the punishment of the disorders of the fifteenth. Revolutionary France weighs in the same manner on constitutional France; and it will be long before the Charter is free from the inheritance of the Empire. But I will not pause upon this ground; ground from which power is not easily forced, and upon which it is not always wrong in fortifying itself. It is too often attacked by vague declamations and inconsiderate hopes; and declamations now-a-days are but little respected even when their subject-matter is true. Our epoch has a predilection for good sense; but it mistakes oddly sometimes what it honours with this name; degrading it, and becoming itself degraded, by conferring it upon aimless practices or dangerous inactivity. But even then this error may be managed; and for my part I do not ask of power that it will give us all the good laws it can, but merely that it will employ the existing laws agreeably to our interest and its own. This it can do, and sometimes does. I could easily point to laws which, though not abolished, are not, and cannot be acted upon without both shame and danger. The statutes of Great Britain are full of penal laws fallen into disuse. When their formal repeal is called for, the friends of power exclaim against it; but they would exclaim quite as much were they brought into operation.
I do not ask for repeal, which would be to forget or violate indirectly recent and positive laws. The latitude which judges enjoy in England does not belong to our tribunals; and neither is it to the tribunals that I address myself. The application of the laws is their right and duty; but the government moves in a larger and freer sphere; it has great influence in political processes, both before they come before the tribunals and after they leave them. The means I seek belong to this influence, which has them completely in its power.
The prosecution and qualification of political crimes on the one hand, and the right of pardon on the other, are the means by which government can, without changing or infringing on the laws, preserve the legal domain from capital punishment, in rendering its application more rare, and thus placing its conduct in harmony with true justice, true social necessities, true prudence and its own duty.
This liberty of action should involve reason in decision; and since the arbitrary preserves a place in the attributes of power, it should be considered to create a void that must always be filled by justice and the public good.