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.
Chapter VII.
Necessity.
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.