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.
Chapter VIII.
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.