Let us see the cases where it is obliged, or thinks it indispensable to prosecute. It has not been able to arrest the offence before the complete development of its legal character, or at least till it supposes chastisement to be necessary. Is it from that moment so bound by the laws, as to have no influence in the direction of prosecutions—but is obliged to force the criminal on towards the scaffold whenever the crime appears susceptible of a capital qualification?
Whoever has watched for some years past the course of political processes, must have remarked two circumstances. Sometimes the judgment has not accorded with the indictment; the court of assizes has believed it a duty, in the position of the question, to lessen the severity of the public ministry, and substitute for a capital crime one of less gravity; or the public ministry itself has reduced its first pretensions, and combated even the first finding which had admitted them. This is what M. Courvoisier at Lyons did in the affair of Maillard. More frequently the public ministry is obstinate in rigorously characterising the offence, and exacting death as its punishment; and in such cases we have seen the judges and jurors acquit the accused, rather than lend themselves to such excessive severity; so that men who would have been subjected to some punishment, had the sentence demanded been moderate, are fully acquitted because it was desired to drive them to the scaffold. I could cite many instances of this kind, but I abstain from doing so, in tenderness to the innocence thus legally proclaimed.
What do these facts prove, if not the uncertainty which often accompanies the characterisation of political crimes? And in this uncertainty, what obliges power to class them under the gravest heads, and to show itself eager for capital punishment at the risk of obtaining none at all! If I am not mistaken here, and if, in political matters, justice, necessity, and efficacy are generally wanting in capital punishment, must not power be too happy in not having to grapple with so terrible an anomaly, and the perils which spring from it, but to find, in the very nature of such crimes, sufficient flexibility to make it easy to characterise them more moderately! Reason commands it, the reason of interest as well as of equity; for nothing can more compromise power than failing totally in a capital accusation; and experience has proved that, notwithstanding the weakness of our judiciary institutions, it could very well do without the blood it had refrained from demanding.
I am aware that it complains of the insufficiency of our laws, and imputes to them both the severity and the ill-success of its issues. They admit, it says, of no alternative: conspirators must either be arraigned as such, and the punishment of death invoked, or the prosecution must be abandoned; for there is nothing under this classification and punishment commensurate with the offence.
I do not admit the excuse. The penal code, in inflicting on the unsuccessful proposal to conspire the punishment of a long banishment, has opened wide a door for the classification of offences of a similar kind. Few attempts characterised as conspiracy correspond fully with the definition of the law; and since some features are wanting, the accusation must be indeed absurd, and the crime imaginary, if it could not be found an unsuccessful proposal of conspiracy. Why not reduce it, from the first, to this character? Because exile is considered too mild; because we are still under the dominion of those prejudices, and this false confidence in capital punishment which I have combated. The government thinks there is no safety but in bloodshed; and at the risk of not obtaining this blood, they seek capital condemnation, because ten years of exile are supposed to be nothing.
Ten years of exile nothing! Good God! with what enemies then do you deal? Are these men so powerful, so European, that they will carry wherever they go their fortune and their influence, that they will everywhere find a point d'appui from which to shake your power, and stretch forth at any distance arms long enough to reach you? That Henry III. still feared the Duke de Guise in refuge at Brussels—that Elizabeth was inquieted by Mary Stuart in France—that even in St Helena Bonaparte made his enemies tremble—may be conceived; but almost all the conspirators you prosecute are men without fame, without wealth, unknown beyond their canton, and who are unable to find in foreign countries anything but misery and oblivion. You then arm yourself even with their wretchedness; you say that it will drive them to any hazard, and that they will attempt to return and rear against you new dangers. There are indeed persons who have been sufficiently daring, who have maintained some correspondence, who have published proclamations, and who have even come to the frontiers of the country. But what risk did you run? Did M. Cuquet de Montarlot give you serious cause of alarm? Were the administration, the police, the gendarmes, the custom-houses, the passports, found to be useless against such paltry designs? And if there is really danger in any part of our frontiers, do you believe it to be caused by the presence of a few obscure and impoverished exiles?
I cannot pause upon such an idea. No, assuredly, it is not true that the punishment of exile is illusory; and if it were so, it would be from very different causes than the personal importance of the convicts. Few French men are anything in France: out of France they are nothing.
If power were in the right; if it were true that there does exist a hiatus in the penal code, and that, in desiring to inflict the severest punishments upon political crimes, our law has forgotten to define those that are susceptible of the lighter chastisements, would it be very difficult to find a remedy? It is not a rare thing to see the administration coming to the legislative power to complain of the insufficiency of the penal laws, and to ask new punishments for new offences. In general, I know, the question in such cases is of aggravation; but if it were desired to soften the laws on account of the severity of their pretensions involving a vexatious impunity, are not the same paths open! What obliges power to remain under the necessity of requiring capital punishment for crimes which really do not merit it? What condemns it to put the judges and juries so often to the alternative of pardon or injustice? Is it not permitted to bring less violent indictments involving lighter punishments? Would it not be welcome thus to show itself at once moderate and prudent, caring alike for order and equity! It is possible that our laws in regard of political matters require some reforms of this kind, and that power, in calling for more merciful punishments, would obtain them more easily. I see nothing to prevent this new means from being adopted, of restricting the circle of capital punishment.