It is not a philosophical question of which I wish to treat, neither do I solicit a change in legislation. This is not a time at once calm and active enough for the principles and reformation of the laws to be discussed: but prudence is necessary at all times; and at all times, whatever may be its perils, government may commit useless faults, and cause superfluous evils to society. It is in this point of view that I wish to consider capital punishment as a political question. I would know whether the government, which has the power of prosecuting and pardoning, acts wisely when it has recourse to it, whether it consults its own interest in doing so, and whether it is constrained thereto by necessity.
It will be admitted that this is still worth the trouble of examination. Conspiracies crowd upon us. One has just been brought under judgment at Tours, another at Marseilles, and another at Nantes; the same thing is to be done at Colmar, Rochelle, and Saumur; and if we may believe the authorities which have discovered them, there are many others ready for the law. Sirejean and Vallé have been executed. New condemnations, perhaps new executions, are preparing. If they should prove useless, nay, fatal to the power which commands them!—a mistake here would surely be a melancholy one: if we take life, we should at least be convinced of the necessity for doing so.
Let those who think there is no mistake, be not too hasty in saying so. I affirm that they do themselves doubt, and that without ceasing to think they must continue to doubt. The time has been when, in a struggle among factions, or between them and the governing power, the punishment of death was not only the habitual arm, but a recognised necessity of the conqueror. It is not from seeing this punishment written in the old laws that we know the impression it made upon men, for it is also written in ours; but it had then more foundation in the manners of the time.The justice of its application was sometimes questioned, but never its utility. Power made use of it with confidence, and none were shocked by the fact. Condemnations and executions might agonize the friends of the vanquished; but the iniquity of such steps not being evident to the public, they considered them as only natural; and power in taking them, firmly believed that it was merely exercising its right, and obeying the necessity of its situation. It was thought by all that government and established order could not be maintained but by the physical destruction of its enemies.
If we now examine the government and the public when capital punishment has been pronounced, or when an execution has just taken place, or is about to do so—if we listen to words, examine thoughts, and interrogate countenances, we shall find everywhere doubt and anxiety. Power has prosecuted: was it right in provoking this judgment? It has struck: has it proved its strength or increased its peril? It does not know itself what to think: it hesitates, and almost apologises for what has been done. And this is not from the fear of appearing cruel, but because it is not sure of having been, I will not say just, but wise. It sought security, and found fear. Thus all its proceedings on such occasions are full of irresolution and inconsistency. A political prosecution pressed forward to-day is held back tomorrow; now it will try to extend its meshes, and anon to contract them; the smallest respite, an application for pardon from the meanest prisoner who has been condemned, becomes an important affair, which calls for long deliberations, the responsibility of which is thought to be of fearful importance; and neither the ill success of the conspiracy, nor the firmest credit in the Chambers, can reassure power from feeling the inquietude which besets it when obliged to accomplish an act it declares to be necessary.
The same impression is made upon the public, which, however, is less moved, since it has nothing to decide. I do not speak of those men who, without conspiring or acting against the government, bear ill-will against it, or even of those whose habits of constitutional opposition render them suspicious of the acts and intentions of power. I address myself to that immense public who have neither political passions nor prejudices, but who desire the establishment of legal order and liberty, because these are necessary for their own wellbeing, for their business, and their daily interests. Are they inclined to imagine it justice which condemns a man to death for a political offence? Do they promise themselves more order and repose after such a consummation! Do they suppose this rigour wholesome, and does it appear necessary to their common sense?No: it startles them like a disorder, and they do not admit its urgency, or perhaps even its equity. It is difficult to persuade them that power is under any necessity of killing a man; and if there is a necessity, they will perhaps infer that the power itself must be evil. This proceeds neither from a bad feeling against authority, nor from effeminacy of manners, but solely from an unconscious but deep-rooted doubt of the usefulness as well as justice of the punishment. There is scarcely any person in our day out of the pale of faction who, after a political execution, believes the public peace more secure, or the government itself more firmly established; everybody, on the contrary, has less confidence in the strength of power, and in the future of society; and this is not by reason of the conspiracies, but of their punishment. This feeling does not surprise me, for I think it well-founded, and I shall proceed to state why. The government strikes, and the people behold the stroke, but neither the one nor the other is assured after the blow of having gained anything by it.
I have said enough, I think, to prove that there is here matter for debate. I do not suppose that government wishes to make a habit of killing only because this was done formerly, or that it acts solely to please its own passions, and satisfy its own vengeance. The use of the scaffold cannot become a mere routine; and as to the passions which it is pretended have something to say in it, I leave them out of the question, not only because they are not just, but because they are not true. It is not true that they are so strong, so persevering, and so imperious as they are made to appear. If, after having long suffered, they had sacrificed much; if they had refused themselves the consolations of life and the pleasures of the world; if they had shown themselves inflexible and incurable, nourishing in solitude their melancholy and their hope, I could comprehend, perhaps even excuse, their exigence. But they can be easily turned aside, or made to smile; and their violence has not been able to resist either the continuation of danger or the hope of security. As they do not, then, demand a satisfaction they are so well able to dispense with, they have not the right to appear ardent and severe. Such energy comes too late; and since they have no pretensions to depth, they may at least leave us the advantage of their frivolity.
Neither have I anything to question with the laws. They pronounce the punishment of death against political crime, yet I repeat that I do not blame them, that I do not invoke their abolition. I am convinced that the reforms solicited by the sentiments and manners of the time must pass into the conduct of the government, in the routine of its affairs, before being introduced into legislation. So it may be in this matter.Government influences the prosecution of political crimes; it can often stifle them before they grow of sufficient importance to come before the tribunals; it may invest them with more or less gravity; and finally, it has the right of suspending or mitigating the punishments which the law decrees. Is it necessary for it to provoke the application of capital punishment, or to allow it to be inflicted? That is my whole question. The doubt exists in every mind, even in that of the government itself; and for my part I think the doubt is in the right.
The necessity of punishments depends upon their efficacy. If a punishment does not attain the end proposed in inflicting it, there can be no question that it is unnecessary.
The efficacy of punishments is either physical, or moral, or both. It is physical by the impotence to which it reduces the guilty, and moral by the example it offers. The physical efficacy of the punishment of death was at first its most powerful recommendation. In killing an enemy, it did away with danger; and what could be more natural than to gratify vengeance while insuring safety?
In the present day, however, there is no longer any question of revenge. No legislation, no government, wishes to have imputed to it such barbarity. But every society and every government still desires security; and capital punishment seems to offer it.
But the efficacy of punishments is not the same in all places or at all times. It varies according to the different stages of society, the degrees of civilisation, the sentiments of the people, and the circumstances of government. Capital punishment, in spite of appearances, has not, even in a physical sense, the advantage of an immutable efficacy; for in suppressing a known enemy, it does not always suppress danger.
What was formerly the composition of society? A small aristocracy, rich and powerful; and the multitude poor, obscure, and weak, notwithstanding numerical strength. When a conspiracy was hatched by the great, it had its known and important chiefs, invested with immense power: it was the fruit of the ambition of some men, perhaps only of one, and the work of a few personal influences. On seizing two or three of the conspirators, therefore, the danger was over.The Percy family, after having placed Henry Lancaster on the throne of England, becoming discontented, conspired and made war against him; but they were defeated and proscribed, and Henry had nothing more to dread. Where are now those eminent and avowed chiefs, whom to destroy was to destroy a party? Under what proper names are peril and influence thus concentrated! Few men now-a-days have a name, and these few are of little consequence. Power has departed from individuals and families; it has left the hearths where it formerly dwelt, to spread itself abroad in society. There it circulates rapidly, and though scarcely seen in any particular spot, it is present everywhere. It is attached to the public interests, ideas, and sentiments, which no single person directs, which no one represents in such a manner as to make their fate depend in the slightest degree upon his. But if these forces are hostile to power, let it search and inquire in what hands they are deposited. Upon what head will it let fall its vengeance? There are still reformers and leaguers, but no longer a Coligny or a Mayenne. The death of an enemy is now but that of a man, and neither troubles nor weakens the party he served. If power is reassured when the life is taken, it deceives itself: its danger remains the same, for it was not the man who created it. The causes of its perils are widely-scattered and deeply-seated; and the absence of a nominal chief does not lessen their energy, or even modify their action. They do not need interpreters, instruments, or councils. The interests and opinions now exist on their own account, and are directed by their own prudence, and make their way by their own strength. No one has a monopoly of them, and no one can either lose them by mischance or sell them by treachery.
Capital punishment, in this at least, has lost its efficacy: it has no longer the prompt and sure result of taking off the head to which all eyes are directed, or of silencing the voice which speaks to all. It may search among these higher classes, in which it is said are the chiefs of parties; but whatever individual it may fix upon, in destroying him, it by no means neutralises the impending danger.
Have governments any instinctive knowledge of this fact? Does it exercise even unconsciously an influence over their conduct? One is tempted to believe so. During the last seven years, many conspiracies in France have been prosecuted and punished; but no man of consideration or of known name had a part in them. Was this because power did not fear such men, or because it thought it could gain little by ridding itself of them? Yet it affirms constantly that every faction has its chiefs, wealthy and important men, who direct its motions and defray its expenses. How is it that these chiefs always escape detection, or that they are reserved for the parade of the tribune, but omitted in the actions before the tribunals?
The true cause is this, and it is of importance to remark it, because it proves my assertion—that the Revolution has struck down in a special manner the upper classes. I use this word the rather because it was the class, not the individual, it was the object of the Revolution to strike. Destined to change society, it was not against men, but against interests and positions, that it directed its blows. The horrible spectacle of judicial death has made so deep an impression, that great hesitation is felt in reviving its use in these more elevated regions. Desires have been expressed, intentions half revealed, even attempts begun; but as soon as any point has been reached from which, if entered, there would be no return, the courage, the will, and the capacity to do have been at an end. At this point the counsels of power are divided; its agents are timid, and its partisans refuse their support. They feel instinctively—and not less wisely—that they are entering on a frightful path, without reason to guide or profit to reward them. To treat the classes that have made the Revolution in the same manner as the Revolution has treated those it has vanquished—to act against it as it has acted against its enemies—is impossible; the very thought is madness. Why, then, direct such fury against individuals whose death would be attended with more noise than benefit? Why recommence in the bosom of the higher class that bloody struggle which will serve to excite hatred against power without really weakening its enemies? Is it necessary again to let the people see that neither consideration, fortune, nor elevated station, is any protection against the violence of political passions? They have begun to forget this, and become accustomed to believe that there are social conditions which, from their nature, are strangers to tumult and its consequences, and where the punishment of death almost never penetrates. Should this salutary belief be broken down? Should the multitude be taught that there are conspiracies in those ranks which are the most interested in maintaining order, and the exhibition presented to them of a man well-known, influential, and highly esteemed, dragged to the scaffold like the vilest malefactor? Might not more danger accrue from this spectacle than from the most powerful adversary of government? Is it not by such spectacles that the Revolution overturned not only society, but habits and ideas? Besides, when such a war takes place among men of the same position, education, and rank, it wears a much more serious aspect than elsewhere: the combatants have known, seen, and spoken to each other; those who are defeated know by whom they are so, by whom their destruction has been sought; and their friends will remember it to-morrow: thus enmities become personal, and dangers direct. Is it prudent or is it unavoidable to allow the strife to assume this character?Will men compromise themselves in person, when even success cannot avert danger, for the simple reason that danger lies in many more things than the life or hostility of individuals? Thus in proportion as the chiefs of a party become less important, the more hesitation is felt in destroying them; and the fear of incurring such responsibility is not surmounted by any feeling of its imperious necessity. That spontaneous good sense which directs men almost unconsciously, informs the friends and even depositaries of power that they would have to hunt after the life of their principal adversaries with less profit to their cause than peril to themselves. Three centuries ago, the destruction of a known enemy was our grand object; now such a consummation is dreaded and shunned: and notwithstanding the fierce declarations and blind fury of certain agents, notwithstanding even its own passions, when government is able and ready to strike the enemies it professes to fear, it surrounds itself with a coil of circumstances to prevent the blow, which compromises without serving.
It is said that men are cowardly, each seeking his own safety, and unwilling to put himself forward on behalf of the government. All that may be true; but if there was any necessity in the case, if the strength or safety of power centered in the destruction of certain men, there would not be wanting friends or agents to hire out their courage to their ambition or their servility. But even the vices of human nature change their mode of action with the time: egotism, covetousness, and fear, do not always follow the same course. No one is a stranger to the new stage of society in which we live, no one is ignorant of the real chiefs of party; the men dangerous in themselves have disappeared, and no one believes that the suppression of such and such an adversary could dissipate, or even sensibly diminish, the dangers of power. The physical inefficacy of capital punishment in the higher ranks is deep in the minds of all. In vain would government refuse its belief, for it is no longer in a condition to act as if it did not believe, and neither fear nor passion has the power of recalling a necessity which no longer exists.
Is the punishment of death more efficacious, and therefore more necessary, against the dangers which spring up lower in society? While the high aristocracy is extinct, and conspiracies are no longer the offspring of a few eminent men, the mass of the free and active population has increased in volume, and exercises an influence it did not formerly possess. Perhaps capital punishment, useless against the fallen great, may be more necessary against the intrigues which ferment in the bosom of the multitude.
I request that it be not forgotten that the necessity of punishment depends upon its efficacy, and likewise that I am now treating of capital punishment only in its physical effects.
And first, I object to the very wordmultitude; that is to say, in the extensive meaning which some persons would give it. To see the insolence with which such persons treat a great population, one would think that we are still in the thirteenth century; that the feudal aristocracy is now in its pride of place; and that it looks down haughtily from the height of its towers on bands of serfs scattered over its domains, or trembling bourgeois coming humbly to solicit permission to rebuild the walls of their poor town, as a defence against robbers. These persons are mistaken: society is not thus formed; there is no longer an abyss separating the higher classes from the mass of the people. The descent from the summit of the social order to its base is by means of close steps, covered with men only slightly different from those above and beneath them. This is true as regards property, industry, education, knowledge, and influence; and although some momentary confusion may be occasioned by the ruins of the old regime, the new form of society is fixed for ever in France. It is necessary to keep this in view, in order to comprehend the effects of legislation and the acts of power, since it is not for the age of Philip-Augustus, but for our own, that we have a government and laws. But let us see how things were managed formerly in the event of political crimes occurring out of the upper region of society, and in what way the governing power proceeded.
On the part of the people plots were rare—the aristocracy had that privilege. This is easily conceivable; for the latter alone could gain by or succeed in them. How could the citizens or peasants conceive the idea of changing the government and seizing the authority? When plots were on foot, they marched in the train of the great, either compelled or seduced. Neither the initiative, nor the direction, nor the fortunate chances of such enterprises, belonged to them.
However, they sometimes troubled the established order. This was by seditions, and general or local revolts, according to the causes which created them—whether oppression, famine, or occasionally new religious creeds. Then the insurrections were frightful: a frenzied multitude quitted their wretched homes, and wandered about in bands, killing, pillaging, and devastating—brutalised in their passions, blind and implacable in their vengeance, ferocious and licentious in their freedom. Such was the war of the peasants of Suabia in Germany, the insurrection of Wat Tyler in England, the Jacquerie in France, and everywhere, from age to age, a crowd of similar risings, less important, but not less hideous.
When such disorders could be repressed before they were converted into wars, it was done without much art. Almost all those who had exerted or seconded them were condemned and executed. All that was to be done was simply to hunt a population from its soil, setting fire to a score of villages, and covering the roads with bodies or limbs hanging from gibbets.When the war had broken out, it became a ferocious chase, which terminated only with the death of the insurgents; or if it was thought prudent to treat with and disperse them by promises, the promises disappeared with the bands which had received them. Thus the peril over, even the British parliament supplicated Richard II. not to pay any attention to such pretended concessions, but to give to all his sheriffs and judges full powers to proceed against the rebels on their return to their provinces. It was not alone during the feudal servitude, in the midst of the darkness and barbarism of the middle ages, that popular movements were thus repressed. When order commenced, when the police, military force, and all the rights of sovereignty, were concentrated in the hands of government, the same means were used, but with more regularity. The number of executions which took place in the reign of Henry VIII. was above 70,000, and under Elizabeth still upwards of 19,000, and insurrections and riots did not furnish the smallest part of them. Madame Sévigné informs us in her letters how Louis XIV. punished the trifling seditions of Brittany. 'The whole of the inhabitants of a large street,' she says, 'have been hunted out and banished, and everybody forbidden on pain of death to harbour them; so that all these wretches, women newly delivered, old men and infants, are wandering away weeping from the town, without knowing whither to go, without food, and without a place to lay their heads. … Sixty citizens have been taken, and are to be hung to-morrow. … We are no longer so extravagant: one in eight days is now sufficient to keep justice going; and the gallows appears quite a refreshment.' Society did not see all this blood flow, and the king was not aware of all the executions which took place; but that the punishment of death was efficacious in a time in which such things could pass without the knowledge of society or of the king—in a time in which wholesale banishment, the gallows, and the wheel, were not merely punishments, but the ordinary arms of police—surely one must be hard of belief to doubt it. Whether in the thirteenth century, or even later, these means might have been necessary, I will not inquire. What I know is, that they were possible, and, moreover, that they were physically efficacious, since they really banished in a great measure the danger against which they were directed, positively reducing the number and strength of their enemies; falling upon the popular masses like hail upon a field of corn, cutting off all the petty chiefs, decimating the fighting-men, and, in fact, not only operating by fear, but by real enervation.
Could this be done in our day? Would the punishment of death thus employed have the same efficacy? To those who think so, and at the same time understand what they think, I have nothing to say, except that I do not fear them. The system they call for will not have even the shame of a useless trial. But how many people still believe in the efficacy of capital punishment, even in its physical point of view, without taking account of its effects or the tendency of their own opinion! The remembrance of past times governs their ideas. Some minds can accommodate themselves at once to the changes of social order, or even anticipate them; but the greater number remain blind and motionless long after the consummation has taken place. The world is full of habits without foundation, and beliefs without motive. This is an instance of the fact.
What government would now dare to use the punishment of death against the people in a manner which would render it physically efficacious? and what laws, what ministers, would prescribe or permit the gallows to be raised along the roads, or shoot men by hundreds, or dispossess and chase away the inhabitants of a canton? We are told of the softness of our manners, and the humanity of our laws; but there are many other obstacles, or rather those sentiments which protect among us the life of a man are themselves protected by the powerful facts which gave them birth. If human life is now more respected, it is that it has more force to make itself respected. Of what consequence was one of the people, a peasant or a petty bourgeois, in the times when such classes were treated in the manner we have seen? A miserable being, totally unknown, weaker and more isolated than the meanest shrub languishing in a forest of oaks. His views extended no farther than his subsistence; his death was of as little importance as his life; and the evils of his lot were as unknown as himself. His fate was allied to nothing; and no one who held any place in society thought himself compromised by the misfortunes and hardships of the multitude. For that multitude there were distinct laws and particular punishments, from which the higher classes had nothing to fear; and the condemnation and execution of a hundred seditious peasants might take place in the district, without the details being known at a distance of thirty leagues, and without the really influential and active part of the nation feeling the least fear for themselves.
There is not a single man now in this condition in society, not a single being whoso life is of so little moment, and whose execution would make so little noise. It might have been a tempting idea to destroy one's enemies while thus isolated, silent, and obscure; at the slightest insurrection or danger the punishment of death might easily descend upon this humble race, and make havoc among them at its leisure. But now there are fewer great lords and many more men, and these all hold together.None is so high that the lowest voice cannot reach him; none so strong that the dangers of the weakest may not also threaten him; none so obscure that misfortune may not give importance to his fate; and none so isolated, whether by greatness or insignificance, that he has nothing to hope or fear from what passes around him. The condition of men in society bears now some analogy with the laws of their destiny in the world; there are no invincible inequalities and no privileges; the trials or blessings of Providence are for all; no one is sheltered more than another from misfortune, sickness, or grief; and each sees in the fate of his neighbour the image or presentiment of his own. This community of position, this parity of chances, this equality in the hand of God, is not the least powerful bond of union among men. It attracts them to each other, intermingles them in the same sentiments, hinders them from being kept aloof by the clashing of their interests and the diversity of their conditions; and, in fine, gathers them together under equal laws, and makes them feel that they have one nature and one country. This is the terrestrial destiny of man; and the present state of society begins to shape in the same fashion its political destiny. The same laws and the same chances are given to all; great diversities grow weaker, and community of interest stronger and more extended. Everything tends to teach men that they are accessible to the same evils, and exposed to the same perils, and that therefore they cannot remain indifferent to the fate of each other; while everything furnishes them with the means of communicating with, and sustaining each other. Thus, on the one hand, individual existence has more importance and power; and, on the other, the totality of existence is so closely interlaced and dovetailed, that a wound or a threat is felt simultaneously, and the means of protection simultaneously adopted.
If we would form an idea of the prodigious changes which, in the point of view I have taken, this new state of things has introduced into the relations between society and the government, let us consider what would become of power if it had now to repress in the people one of those insurrections which formerly it was so easy to manage by means of the gallows or the wheel. When we see a crowd in movement, when here and there some cries are heard, and some cudgels raised, we fancy the state in danger, call out the troops, and display the public force in its gravest aspect. I do not say that this is wrong; but what if a province rose, if armed bands traversed the country, sometimes victorious, and sometimes difficult to vanquish? This, however, is just what happened under Louis XIV. in Brittany, Languedoc, and twenty other places: here on account of a tax, there for a creed, elsewhere against an edict. Troops were sent out, punishments multiplied, the population hunted; but the confusion had no effect upon the fêtes at Versailles, and the ordinary course of affairs at Paris was undisturbed; for the state did not feel itself compromised, or power really attacked.And wherefore, it will be asked, should these violent resistances and partial disorders now inspire so much more alarm than formerly? Is it that they have a more serious effect? It is that they are no longer a mere effervescence of the multitude; that instead of popular seditions, there would now be public movements. Such is the composition of society, that the rabble, reduced in number and force, can no longer act alone in the brutality of their wants or passions. Between them and power is placed a great, wealthy, and yet working population, who, though still too little educated, are able to see far beyond mere material necessities or the fancies of the moment. This population is not given to tumults, for its members do not live upon daily wages, but work upon whatever they possess, land or capital. Thus it is very difficult to draw them away from their business; even when discontented, they would long hesitate before acting, for no one has the power to command them; and however bad a government might be, it could scarcely drive them to do worse than grumble. But if an insurrection were really to take place, it could not be without their concurrence and consent. And thus those who, in the seventeenth century, scarcely attracted the attention of Louis XIV. at all, would now set the whole government astir, and cause it to feel that this was no question of a riot among the populace, but that a more formidable enemy and a greater danger were before it. If force was not at once successful, the authorities would despair of force, and have recourse to promises, concessions, changes of systems, to all that compulsory policy which proclaims that power has been mistaken, and has found it out. And thus, while formerly a government, opposing nothing but troops or punishments to the seditious, might be for some years at war with a portion of the country, society, in its quiet, but strong construction, animated by one common spirit, would hardly have advanced a step in real resistance before its tottering government would begin to think rather of reforms than punishments.
Is it then, I ask, is it in the midst of society thus constituted that the physical efficacy of capital punishment against the political crimes of the masses can still subsist? It is no longer a poor weak multitude, separated from the influential classes, whom it is now the question to reduce to impotence. Who would now treat the multitude, composed of students, merchants, master-workmen, and farmers, as it was treated formerly? It is there, however, that the evil would be if it burst forth; it is there that the remedy must be applied; and in order to give that remedy the direct utility which the government of Louis XIV. obtained, by hanging or chasing from the town of Rennes all the inhabitants of a turbulent street—in order to suppress the danger in the persons of its authors—what intensity, what extent would it not require to possess!But what would be the consequences? Shall we say what disgust, what horror of government, would run through this electrical society, where everything is known, everything propagated, and where millions of men in the same condition, of the same sentiments, without having ever seen or spoken to each other, yet know reciprocally their fate, and in spite of the calm around them, feel themselves menaced by a storm growling at the distance of a hundred leagues from their canton. In such circumstances two conditions are attached to the physical efficacy of capital punishment—the first is, that it weighs heavily upon the place where the danger appears; and the other, that it does not carry desolation and confusion into the whole country. Formerly, these two conditions were united; but now this is impossible, and the authority which would fulfil the first would soon feel itself more compromised by the horror and agitation spread throughout the country, than reassured by the solitude it might have made in one corner of the state.
We cannot struggle against social facts: they have roots which the hand of man cannot reach, and when they have once taken possession of the soil, it is necessary to learn to live under their shadow. There are no longer great nobles to destroy, or a rabble to decimate. Physically useless against individuals, since there are none whose life is dangerous to government, capital punishment is equally so against the masses, who are too strong and too watchful to allow it to be exercised with efficacy. In this first point of view, then, capital punishment, as a direct means of suppressing danger, is vain: it is but a custom, a prejudice, a routine, derived from a time when, indeed, it did attain the end intended by really delivering power from its enemies. And power, which still retains this worn-out weapon, is itself aware of its vanity; for when it has to do with men of any consideration, it wisely hesitates to employ it; and when, on the other hand, it is a portion of the population which it fears, the impossibility is so evident, that it never dreams of employing so terrible an instrument.
The efficacy, then, of the punishment of death must be moral, since it is not physical. This is the strong point in which its friends confide: let us examine it.
Considered generally, and in its moral efficacy, capital punishment, like all other punishments, has a double effect—inspiring aversion to crime, and fear of chastisement. The two ideas—crime and chastisement—are associated in the mind of man. When crime is seen, punishment is expected; when punishment is seen, crime is presumed. Founded upon this natural fact, legislation proposes in punishing not only to terrify, but also to maintain and fortify in all minds the conviction of the perversity of the acts it punishes; and it is thus it would dissuade the people from crime, and make that punishment an example.
I even think that punishments are still more exemplary by the moral impression they make, than by the terror they inspire. The laws have more force in the consciences of men than in their fears. The public reprobation and shame attached to certain acts have more power in deterring, than the chastisement which may follow. Those who are acquainted with human nature will agree with me in this; and let those who doubt only suppose the moral stigma removed from actions reckoned criminal by our code, and then inquire whether all the skill of the police, and all the rigour of power, could suffice for their prevention. Fear, no doubt, has its part in the moral efficacy of punishments; but we should not exaggerate the power of this agent, or forget the more energetic one which works to the same result.
It has been said that the moral antipathy inspired by crime is not increased by the severity of the punishment. It is true that if the punishment appears excessive, if it revolts more than conciliates the moral sentiments, if it changes the horror of the crime into pity for the criminal, it loses its desired effect. It is not true, however, that fear alone arises from severe punishments, and that they do not move the conscience still more strongly: all this varies according to the times, ideas, and manners: the punishment which formerly spoke loudly against the crime might now speak only in favour of the criminal. Moreover, even in the midst of the mildest manners, pity never so exclusively possesses the heart of man that, while beholding a great punishment merited by a great crime, he suddenly forgets the crime, to think only of the sufferings of the criminal. Pity has its sentiment of justice; and when this justice is not offended, the gravity of the punishment exercises its power alike over the conscience and the fear. I do not dispute that capital punishment has this double virtue.Neither do I believe that it now acts only by fear, or that it is, besides, so contrary to our manners that it fails as entirely in its end as would do the punishment of the wheel. I think even that, become rarer, its effect upon the imagination may have increased with the importance which a man's life takes in the public mind. But even as simple capital punishment preserves its moral efficacy, and as slow and cruel punishments have lost theirs, in like manner are introduced or developed such differences in crimes, that the same punishment does not possess the same efficacy in all.
Why does capital punishment, when applied to private crimes, such as murder, robbery, incendiarism, &c. never fail to produce this chief effect, the end of all punishments, which consists in increasing the aversion these crimes inspire? It is because it finds this aversion in all hearts, or at least because there is no dispute as to the natural criminality of the acts which it punishes. Two facts are certain—that the action made criminal by law has really taken place, and that it is really criminal. The public, power, even the accused, agree upon this. There is no question but to discover the author of an act of which no one contests the reality or the wickedness. Thus the first condition of the moral efficacy of punishment is in some sort fulfilled beforehand; it is a proved fact, which calls for chastisement, and the chastisement addresses itself to men who think in unison with the law.
In political crimes, on the contrary, these two circumstances are uncertain: it is not certain that the acts of the accused are really these which the law incriminates, nor that the acts incriminated by the law arc naturally and invariably criminal. The first uncertainty is evident: no one in the present day is ignorant that in the case of private offences it is the criminal alone who is sought out, the offence being certain; while in a political matter, such as conspiracies, offences of the press, &c. it is almost always necessary to discover in a series of actions more or less significant both the offence and the offender. As to the second uncertainty, let it not be said that in affirming that, it also exists, I wish to enervate the laws, and leave public order without a safeguard. I affirm only that the immorality of political crimes is neither so clear nor so immutable as that of private crimes; it is constantly metamorphosed or obscured by the vicissitudes of human affairs; it varies according to times, events, and the rights and merits of power; it totters every moment under the blows of a force which pretends to fashion it according to its caprices or its necessities. It would be difficult to find in the political world a meritorious and innocent act which has not received, in some corner of the world or of time, a legal incrimination. Who shall say that all these laws were in the right? Who affirm that they have always carried into the minds of the people the conviction of their justice, and inspired, together with fear of the punishment, horror of the crime?Who will now become the absolute defender of passive obedience, and construe the rights of society as subordinate to the written law, whatever be the character of power? Such an attempt would be vain. In things so changeable and complicated, true morality does not allow itself to be thus absolutely fixed and imprisoned for ever in the text of the laws; and Providence, which so often delivers up to force the destiny of men, does not permit it thus to make and unmake crime and virtue at its pleasure. 'Do you not know,' said the president of the revolutionary tribunal to M. Engrand d'Alleray, 'the law which forbids the sending of money to emigrants?' 'Yes,' replied the old man, 'but I know of an older law which commands me to support my children.' This, which was true in 1793, will be so always, in spite of all codes, and in the face of all kinds of power. Doubtless there are real and odious political crimes; but those that are made by the laws are not always so, whatever the laws or times may be. Force exercises an immense empire over the weak mind of man; but it is not given to it to deprave it to this degree, that crimes of its own fashioning excite the instinctive antipathy attached to crimes declared as such by the true law. Tyranny apart, and even in tolerably regular times, there frequently rests upon actions of this kind a great moral uncertainty. When they raise in the public a violent animosity, it is perhaps because the public is passionate, and itself inclined to injustice; and when it is always incredulous, and secretly given to excuse them, it is because power displeases the public. Which is right, and which wrong? Force may prevent people from knowing, or at least from speaking, but in almost every case capital punishment in political crimes fails to produce, either surely or generally, the really moral impression which accompanies it in private crimes.
An analogous difference exists between these two classes of crimes as to the effect of the fear sought to be inspired by capital punishment. The robber and the murderer are isolated in society, or at least their friends, protectors, or accomplices are only robbers or murderers like themselves. This they know; and when punishment overtakes them, it is not power alone, but the whole of society, which arms itself against them. With society they were at war, and it has conquered. This victory gives the idea of an immense force directed against individuals, who can only oppose to it their courage or address. They will never have better fortune; never will a portion of the public embrace their cause; never will a day of triumph or vengeance dawn for them. They live in the midst of society like wild beasts in a country crowded by man, finding everywhere snares or enemies; without support, without shelter, and without other force than their personal strength, which every one attacks, and living in a fear which every one increases; and every condemnation, every execution of their brethren which takes place, is to them a solemn proof of the weakness of their position, and a warning of the fate which awaits them.But the enemies of a government, men inclined to conspire, or who do actually conspire, are in a very different position: they do not cease to belong to society, and they are attached to some party, to whose assistance and protection they look. This party may not wish what they wish, and may not believe what they believe; but what of that? They merely exaggerate its power, and misapprehend its intentions. In the meantime they live surrounded by men whose desires assimilate with their own, and whose illusions respond to their confidence. Who does not know what prodigious blindness possesses political factions, and with what mad certainty each reckons upon its strength and success? In each passer-by, under each roof from which the smoke rises, the robber sees an enemy; while the conspirator dreams everywhere of allies, and is confident of obtaining everywhere at least a temporary protection. And besides, if the latter is in danger, defenders will not fail him; his offence will be considered doubtful, and power unjust and violent; a thousand kind sentiments, a thousand wise reasons, will lend their support to designs which are disapproved of, and to conduct which is blamed, but which men cannot, and will not, allow to be suppressed by iniquity. Finally, if the man falls, it will not be in this isolation, in the midst of this universal animadversion, which freezes the most audacious courage. Perhaps in a future day he will be avenged; and in this expectation his friends regard his ruin as a blow from which the strength they possess, with the aid of a little more good fortune or prudence, may henceforth preserve them.
It is not possible to intimidate a faction like a band of robbers: in order to give in such cases the moral efficacy to capital punishment which it derives from fear, and which in a matter of private crime a single execution suffices to obtain, it would be necessary to go almost so far as to render its efficacy likewise physical; and we have seen that this has obstacles still more formidable, and dangers still more serious. There is, then, no analogy of this kind between private and political crimes, which are separated by profound differences. The question is not to examine the moral efficacy of capital punishment in general; because, whether it addresses itself to the conscience or fear, it will not produce the same effect in conspiracies as in robberies. It is necessary to confine ourselves exclusively to the former class of offences, in order to appreciate its influence. There, as in other cases, it proposes for itself the double end which every punishment aims at: it would prevent the evil, in making the crime detestable and the chastisement terrible.