General History of Civilisation in Europe, From the Fall of the Roman Empire Till the French Revolution. A Treatise on Death Punishments.

by François Guizot

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.