Could this be done in our day? Would the punishment of death thus employed have the same efficacy? To those who think so, and at the same time understand what they think, I have nothing to say, except that I do not fear them. The system they call for will not have even the shame of a useless trial. But how many people still believe in the efficacy of capital punishment, even in its physical point of view, without taking account of its effects or the tendency of their own opinion! The remembrance of past times governs their ideas. Some minds can accommodate themselves at once to the changes of social order, or even anticipate them; but the greater number remain blind and motionless long after the consummation has taken place. The world is full of habits without foundation, and beliefs without motive. This is an instance of the fact.
What government would now dare to use the punishment of death against the people in a manner which would render it physically efficacious? and what laws, what ministers, would prescribe or permit the gallows to be raised along the roads, or shoot men by hundreds, or dispossess and chase away the inhabitants of a canton? We are told of the softness of our manners, and the humanity of our laws; but there are many other obstacles, or rather those sentiments which protect among us the life of a man are themselves protected by the powerful facts which gave them birth. If human life is now more respected, it is that it has more force to make itself respected. Of what consequence was one of the people, a peasant or a petty bourgeois, in the times when such classes were treated in the manner we have seen? A miserable being, totally unknown, weaker and more isolated than the meanest shrub languishing in a forest of oaks. His views extended no farther than his subsistence; his death was of as little importance as his life; and the evils of his lot were as unknown as himself. His fate was allied to nothing; and no one who held any place in society thought himself compromised by the misfortunes and hardships of the multitude. For that multitude there were distinct laws and particular punishments, from which the higher classes had nothing to fear; and the condemnation and execution of a hundred seditious peasants might take place in the district, without the details being known at a distance of thirty leagues, and without the really influential and active part of the nation feeling the least fear for themselves.
There is not a single man now in this condition in society, not a single being whoso life is of so little moment, and whose execution would make so little noise. It might have been a tempting idea to destroy one's enemies while thus isolated, silent, and obscure; at the slightest insurrection or danger the punishment of death might easily descend upon this humble race, and make havoc among them at its leisure. But now there are fewer great lords and many more men, and these all hold together. None is so high that the lowest voice cannot reach him; none so strong that the dangers of the weakest may not also threaten him; none so obscure that misfortune may not give importance to his fate; and none so isolated, whether by greatness or insignificance, that he has nothing to hope or fear from what passes around him. The condition of men in society bears now some analogy with the laws of their destiny in the world; there are no invincible inequalities and no privileges; the trials or blessings of Providence are for all; no one is sheltered more than another from misfortune, sickness, or grief; and each sees in the fate of his neighbour the image or presentiment of his own. This community of position, this parity of chances, this equality in the hand of God, is not the least powerful bond of union among men. It attracts them to each other, intermingles them in the same sentiments, hinders them from being kept aloof by the clashing of their interests and the diversity of their conditions; and, in fine, gathers them together under equal laws, and makes them feel that they have one nature and one country. This is the terrestrial destiny of man; and the present state of society begins to shape in the same fashion its political destiny. The same laws and the same chances are given to all; great diversities grow weaker, and community of interest stronger and more extended. Everything tends to teach men that they are accessible to the same evils, and exposed to the same perils, and that therefore they cannot remain indifferent to the fate of each other; while everything furnishes them with the means of communicating with, and sustaining each other. Thus, on the one hand, individual existence has more importance and power; and, on the other, the totality of existence is so closely interlaced and dovetailed, that a wound or a threat is felt simultaneously, and the means of protection simultaneously adopted.
If we would form an idea of the prodigious changes which, in the point of view I have taken, this new state of things has introduced into the relations between society and the government, let us consider what would become of power if it had now to repress in the people one of those insurrections which formerly it was so easy to manage by means of the gallows or the wheel. When we see a crowd in movement, when here and there some cries are heard, and some cudgels raised, we fancy the state in danger, call out the troops, and display the public force in its gravest aspect. I do not say that this is wrong; but what if a province rose, if armed bands traversed the country, sometimes victorious, and sometimes difficult to vanquish? This, however, is just what happened under Louis XIV. in Brittany, Languedoc, and twenty other places: here on account of a tax, there for a creed, elsewhere against an edict. Troops were sent out, punishments multiplied, the population hunted; but the confusion had no effect upon the fêtes at Versailles, and the ordinary course of affairs at Paris was undisturbed; for the state did not feel itself compromised, or power really attacked. And wherefore, it will be asked, should these violent resistances and partial disorders now inspire so much more alarm than formerly? Is it that they have a more serious effect? It is that they are no longer a mere effervescence of the multitude; that instead of popular seditions, there would now be public movements. Such is the composition of society, that the rabble, reduced in number and force, can no longer act alone in the brutality of their wants or passions. Between them and power is placed a great, wealthy, and yet working population, who, though still too little educated, are able to see far beyond mere material necessities or the fancies of the moment. This population is not given to tumults, for its members do not live upon daily wages, but work upon whatever they possess, land or capital. Thus it is very difficult to draw them away from their business; even when discontented, they would long hesitate before acting, for no one has the power to command them; and however bad a government might be, it could scarcely drive them to do worse than grumble. But if an insurrection were really to take place, it could not be without their concurrence and consent. And thus those who, in the seventeenth century, scarcely attracted the attention of Louis XIV. at all, would now set the whole government astir, and cause it to feel that this was no question of a riot among the populace, but that a more formidable enemy and a greater danger were before it. If force was not at once successful, the authorities would despair of force, and have recourse to promises, concessions, changes of systems, to all that compulsory policy which proclaims that power has been mistaken, and has found it out. And thus, while formerly a government, opposing nothing but troops or punishments to the seditious, might be for some years at war with a portion of the country, society, in its quiet, but strong construction, animated by one common spirit, would hardly have advanced a step in real resistance before its tottering government would begin to think rather of reforms than punishments.
Is it then, I ask, is it in the midst of society thus constituted that the physical efficacy of capital punishment against the political crimes of the masses can still subsist? It is no longer a poor weak multitude, separated from the influential classes, whom it is now the question to reduce to impotence. Who would now treat the multitude, composed of students, merchants, master-workmen, and farmers, as it was treated formerly? It is there, however, that the evil would be if it burst forth; it is there that the remedy must be applied; and in order to give that remedy the direct utility which the government of Louis XIV. obtained, by hanging or chasing from the town of Rennes all the inhabitants of a turbulent street—in order to suppress the danger in the persons of its authors—what intensity, what extent would it not require to possess! But what would be the consequences? Shall we say what disgust, what horror of government, would run through this electrical society, where everything is known, everything propagated, and where millions of men in the same condition, of the same sentiments, without having ever seen or spoken to each other, yet know reciprocally their fate, and in spite of the calm around them, feel themselves menaced by a storm growling at the distance of a hundred leagues from their canton. In such circumstances two conditions are attached to the physical efficacy of capital punishment—the first is, that it weighs heavily upon the place where the danger appears; and the other, that it does not carry desolation and confusion into the whole country. Formerly, these two conditions were united; but now this is impossible, and the authority which would fulfil the first would soon feel itself more compromised by the horror and agitation spread throughout the country, than reassured by the solitude it might have made in one corner of the state.
We cannot struggle against social facts: they have roots which the hand of man cannot reach, and when they have once taken possession of the soil, it is necessary to learn to live under their shadow. There are no longer great nobles to destroy, or a rabble to decimate. Physically useless against individuals, since there are none whose life is dangerous to government, capital punishment is equally so against the masses, who are too strong and too watchful to allow it to be exercised with efficacy. In this first point of view, then, capital punishment, as a direct means of suppressing danger, is vain: it is but a custom, a prejudice, a routine, derived from a time when, indeed, it did attain the end intended by really delivering power from its enemies. And power, which still retains this worn-out weapon, is itself aware of its vanity; for when it has to do with men of any consideration, it wisely hesitates to employ it; and when, on the other hand, it is a portion of the population which it fears, the impossibility is so evident, that it never dreams of employing so terrible an instrument.
The efficacy, then, of the punishment of death must be moral, since it is not physical. This is the strong point in which its friends confide: let us examine it.
Chapter III.
Moral Efficacy Of Capital Punishment.
Considered generally, and in its moral efficacy, capital punishment, like all other punishments, has a double effect—inspiring aversion to crime, and fear of chastisement. The two ideas—crime and chastisement—are associated in the mind of man. When crime is seen, punishment is expected; when punishment is seen, crime is presumed. Founded upon this natural fact, legislation proposes in punishing not only to terrify, but also to maintain and fortify in all minds the conviction of the perversity of the acts it punishes; and it is thus it would dissuade the people from crime, and make that punishment an example.