Contents.


Preface[249]
Chapter I.Limits Of The Question[255]
Chapter II.Physical Efficacy Of Capital Punishment[258]
Chapter III.Moral Efficacy Of Capital Punishment[268]
Chapter IV.The Same Subject Continued[280]
Chapter V.Double Character Of The Government[285]
Chapter VI.Justice[291]>
Chapter VII.Necessity[300]
Chapter VII.Necessity[300]
Chapter VIII.Means[306]
Chapter IX.Prosecution And Qualification Of Political Crimes[308]
Chapter X.The Privilege Of Mercy[318]
Chapter XI.Conclusion[325]

Preface.

It may be asked, perhaps, what I hope from this work? I do not hope, I admit, that governments will be convinced of the inutility of capital punishment, still less that they will abandon its employment. Truth glides slowly into the mind of power, and even when it does fairly enter, it is not immediately acknowledged as master. The mind long refuses to believe, and even when forced to believe, it still refuses to obey. There is no occasion to tell why.

It is precisely for this reason, that when power is in error, it is necessary to set the public right—to establish in opinion that which will be so long of resolving into fact. If the road is long, it is the more necessary to set out early; for in that case, even before reaching the goal, we may obtain some results. It is vain to prolong error, for when known to be such, it is powerless. Society in the present day is so formed, that power is half vanquished when the public pronounces it to be in the wrong. In vain it persists, for even in persisting, it hesitates, feeling itself to be before a superior strength. Opinion at length gradually comes to invade, where before it only sustained attack; but even then power does not yield, though its hesitation increases. First fear, and then doubt, weakens its action: then it becomes timid, and falls into the mistake of employing a means which society reprobates, and in the efficacy of which it does not itself believe. To this point it must be forced, and its errors clearly exhibited; and at last, as the daylight shines upon them, the strength in which it trusted will be more difficult to use, and be more and more weakened by the increasing blunders of its strategy.

I think the present time favourable for thus attacking the use of capital punishment in the light of a political question. When action is directed by truth, it is slow and feeble; but it proceeds vigorously when truth works in the way of reaction. Amid the gentle manners of the eighteenth century, cruel laws, political severities, and the punishment of death, were vigorously striven against: everything seemed tending to restrain, if not suppress them, and many honest men supposed the victory gained. But the Revolution broke out, and cruel laws, political severity, and the punishment of death, were resorted to with a violence unheard of before. So many perished hopes engendered a fear that the ideas which had given them birth were an illusion; but this was a great error. On the contrary, it is at this time that these ideas may claim and exercise the greatest dominion; they are able to avail themselves of a recent and frightful experience; and it is easy for them, in improving it, to rid themselves of the dreams of their infancy, to strengthen themselves by instances instead of theories, and to come down to the simplest rules of common sense. Notwithstanding the scepticism of our time, the public mind is disposed to receive them. The Revolution made more enemies by employing capital punishment politically, than were stirred up by all the books and speeches philanthropic, philosophical, and literary. It has left on this subject an impression much more efficacious than that of ideas, and which overcomes opinions even the most apparently hostile. With many men it would provoke indignation to try to make them admit even the partial suppression of capital punishment as a general necessity, the consequences of a right or a theory: perhaps they would say that it is such chimeras which brought on the Revolution. But place these same men in the presence of facts: let them award, in the capacity of judges or juries, the terrible sentence, or even let them see it brought into effect by others, and experience will resume all its power over their minds. They will mistrust its necessity and its justice; melancholy presentiments will arise from melancholy recollections; they will feel at once doubt and fear; they will recall what they have seen, and what they have suffered; they will distrust a policy which has occasion to take such a course, and engenders such a necessity; and they will have no more faith in results than in reasons. And thus in spite of theoretical opinions, often in spite even of the tendency of circumstances, the common instinct, the public good sense—fruit of bitter experience—will resist the employment of capital punishment politically with much more efficacy than all the arguments and precepts of philosophy.

I would justify this instinct, and produce all the proofs of its legitimacy. Is the case urgent? Does power show itself so eager for, and so prodigal of, capital punishment? Are we so assailed by penalties that it is necessary to sound the alarm, and to treat the policy of our days as if it resembled that disastrous policy the severe judgments of which were formerly its great and habitual instruments? I detest exaggeration, for it is falsehood. I do not seek to excite or maintain blind fears of what I cannot prove; I draw no comparison between our own and those deplorable times. But let me not be told that it is necessary to wait in a case like this for the right to speak. If the punishment of death is politically useless, inefficacious, and even dangerous, wherefore not say so at once? Why should truth be silent till it is proclaimed by facts so terrible? These facts, it may be said, will not come: well, if they are not to come, a book cannot bring them; and if they are, who could pardon himself if he had delayed the warning? Besides, I observe the odd anomaly, that some people, when afraid, are at once credulous and difficult of belief. Sometimes they see frightful symptoms everywhere; and sometimes they will not believe in the possibility of the evil till its arrival. One would say that they made a choice in their recollections; always accessible to some, and repulsing others as importunate and inadmissible. The least idea, the slightest agitation, recalls the terrors of the Revolution to their minds; but with other terrors before them, likewise revolutionary, they are blind and bold. They are seized with affright if some errors of the Constituent Assembly reappear, and yet exclaim against any inquietude that may be manifested on the restoration of capital punishment as a political engine. I ask more impartiality of memory, more extent in foresight, and more justice in fear. We are not descended so low that an evil must be horrible to be felt. I am sure that iniquity without modesty and without restraint has not taken possession of either the laws or tribunals; I know that if it aspired too far, it would meet with powerful obstacles in its course; and I am aware that danger does not lurk at every door, or the punishment of death hover over all the adversaries of power. But still, in my opinion, capital punishment is too often called for, and too often inflicted. In the use we make of it there is neither wisdom, nor equity, nor necessity; it fails in its object, and aggravates the evil of our position by engaging power in a course full of peril for society and for itself; it causes of itself gratuitous misfortunes, which, if they spread no farther, are still neither lighter nor more reparable; it attaches itself to a false and fatal policy, and sinks day by day into an instrument more melancholy and more useless. Let others imagine that there are not here sufficient motives for opposing its use, and wait for more evils and more severity: for my part I think I have reckoned enough.

Another consideration determines me. One side has triumphed, and expecting still to triumph, it in the meantime does all it can. It will attempt, I think, more than it has yet attempted; although it cannot do all it would. This is evident even to itself. The situation is a new one. In the course of the Revolution, the party which succeeded always did more than it intended, and more than at the commencement of the enterprise it was in a condition even to conceive. The success surpassed not only hopes, but pretensions. Blind instruments of a giant power, the men of the Revolution were hurried away by events more rapid than their thoughts, and carried facts into accomplishment much more extensive and terrible than their designs.