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 say how bad, 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.