I even think that punishments are still more exemplary by the moral impression they make, than by the terror they inspire. The laws have more force in the consciences of men than in their fears. The public reprobation and shame attached to certain acts have more power in deterring, than the chastisement which may follow. Those who are acquainted with human nature will agree with me in this; and let those who doubt only suppose the moral stigma removed from actions reckoned criminal by our code, and then inquire whether all the skill of the police, and all the rigour of power, could suffice for their prevention. Fear, no doubt, has its part in the moral efficacy of punishments; but we should not exaggerate the power of this agent, or forget the more energetic one which works to the same result.
It has been said that the moral antipathy inspired by crime is not increased by the severity of the punishment. It is true that if the punishment appears excessive, if it revolts more than conciliates the moral sentiments, if it changes the horror of the crime into pity for the criminal, it loses its desired effect. It is not true, however, that fear alone arises from severe punishments, and that they do not move the conscience still more strongly: all this varies according to the times, ideas, and manners: the punishment which formerly spoke loudly against the crime might now speak only in favour of the criminal. Moreover, even in the midst of the mildest manners, pity never so exclusively possesses the heart of man that, while beholding a great punishment merited by a great crime, he suddenly forgets the crime, to think only of the sufferings of the criminal. Pity has its sentiment of justice; and when this justice is not offended, the gravity of the punishment exercises its power alike over the conscience and the fear. I do not dispute that capital punishment has this double virtue. Neither do I believe that it now acts only by fear, or that it is, besides, so contrary to our manners that it fails as entirely in its end as would do the punishment of the wheel. I think even that, become rarer, its effect upon the imagination may have increased with the importance which a man's life takes in the public mind. But even as simple capital punishment preserves its moral efficacy, and as slow and cruel punishments have lost theirs, in like manner are introduced or developed such differences in crimes, that the same punishment does not possess the same efficacy in all.
Why does capital punishment, when applied to private crimes, such as murder, robbery, incendiarism, &c. never fail to produce this chief effect, the end of all punishments, which consists in increasing the aversion these crimes inspire? It is because it finds this aversion in all hearts, or at least because there is no dispute as to the natural criminality of the acts which it punishes. Two facts are certain—that the action made criminal by law has really taken place, and that it is really criminal. The public, power, even the accused, agree upon this. There is no question but to discover the author of an act of which no one contests the reality or the wickedness. Thus the first condition of the moral efficacy of punishment is in some sort fulfilled beforehand; it is a proved fact, which calls for chastisement, and the chastisement addresses itself to men who think in unison with the law.
In political crimes, on the contrary, these two circumstances are uncertain: it is not certain that the acts of the accused are really these which the law incriminates, nor that the acts incriminated by the law arc naturally and invariably criminal. The first uncertainty is evident: no one in the present day is ignorant that in the case of private offences it is the criminal alone who is sought out, the offence being certain; while in a political matter, such as conspiracies, offences of the press, &c. it is almost always necessary to discover in a series of actions more or less significant both the offence and the offender. As to the second uncertainty, let it not be said that in affirming that, it also exists, I wish to enervate the laws, and leave public order without a safeguard. I affirm only that the immorality of political crimes is neither so clear nor so immutable as that of private crimes; it is constantly metamorphosed or obscured by the vicissitudes of human affairs; it varies according to times, events, and the rights and merits of power; it totters every moment under the blows of a force which pretends to fashion it according to its caprices or its necessities. It would be difficult to find in the political world a meritorious and innocent act which has not received, in some corner of the world or of time, a legal incrimination. Who shall say that all these laws were in the right? Who affirm that they have always carried into the minds of the people the conviction of their justice, and inspired, together with fear of the punishment, horror of the crime? Who will now become the absolute defender of passive obedience, and construe the rights of society as subordinate to the written law, whatever be the character of power? Such an attempt would be vain. In things so changeable and complicated, true morality does not allow itself to be thus absolutely fixed and imprisoned for ever in the text of the laws; and Providence, which so often delivers up to force the destiny of men, does not permit it thus to make and unmake crime and virtue at its pleasure. 'Do you not know,' said the president of the revolutionary tribunal to M. Engrand d'Alleray, 'the law which forbids the sending of money to emigrants?' 'Yes,' replied the old man, 'but I know of an older law which commands me to support my children.' This, which was true in 1793, will be so always, in spite of all codes, and in the face of all kinds of power. Doubtless there are real and odious political crimes; but those that are made by the laws are not always so, whatever the laws or times may be. Force exercises an immense empire over the weak mind of man; but it is not given to it to deprave it to this degree, that crimes of its own fashioning excite the instinctive antipathy attached to crimes declared as such by the true law. Tyranny apart, and even in tolerably regular times, there frequently rests upon actions of this kind a great moral uncertainty. When they raise in the public a violent animosity, it is perhaps because the public is passionate, and itself inclined to injustice; and when it is always incredulous, and secretly given to excuse them, it is because power displeases the public. Which is right, and which wrong? Force may prevent people from knowing, or at least from speaking, but in almost every case capital punishment in political crimes fails to produce, either surely or generally, the really moral impression which accompanies it in private crimes.
An analogous difference exists between these two classes of crimes as to the effect of the fear sought to be inspired by capital punishment. The robber and the murderer are isolated in society, or at least their friends, protectors, or accomplices are only robbers or murderers like themselves. This they know; and when punishment overtakes them, it is not power alone, but the whole of society, which arms itself against them. With society they were at war, and it has conquered. This victory gives the idea of an immense force directed against individuals, who can only oppose to it their courage or address. They will never have better fortune; never will a portion of the public embrace their cause; never will a day of triumph or vengeance dawn for them. They live in the midst of society like wild beasts in a country crowded by man, finding everywhere snares or enemies; without support, without shelter, and without other force than their personal strength, which every one attacks, and living in a fear which every one increases; and every condemnation, every execution of their brethren which takes place, is to them a solemn proof of the weakness of their position, and a warning of the fate which awaits them. But the enemies of a government, men inclined to conspire, or who do actually conspire, are in a very different position: they do not cease to belong to society, and they are attached to some party, to whose assistance and protection they look. This party may not wish what they wish, and may not believe what they believe; but what of that? They merely exaggerate its power, and misapprehend its intentions. In the meantime they live surrounded by men whose desires assimilate with their own, and whose illusions respond to their confidence. Who does not know what prodigious blindness possesses political factions, and with what mad certainty each reckons upon its strength and success? In each passer-by, under each roof from which the smoke rises, the robber sees an enemy; while the conspirator dreams everywhere of allies, and is confident of obtaining everywhere at least a temporary protection. And besides, if the latter is in danger, defenders will not fail him; his offence will be considered doubtful, and power unjust and violent; a thousand kind sentiments, a thousand wise reasons, will lend their support to designs which are disapproved of, and to conduct which is blamed, but which men cannot, and will not, allow to be suppressed by iniquity. Finally, if the man falls, it will not be in this isolation, in the midst of this universal animadversion, which freezes the most audacious courage. Perhaps in a future day he will be avenged; and in this expectation his friends regard his ruin as a blow from which the strength they possess, with the aid of a little more good fortune or prudence, may henceforth preserve them.
It is not possible to intimidate a faction like a band of robbers: in order to give in such cases the moral efficacy to capital punishment which it derives from fear, and which in a matter of private crime a single execution suffices to obtain, it would be necessary to go almost so far as to render its efficacy likewise physical; and we have seen that this has obstacles still more formidable, and dangers still more serious. There is, then, no analogy of this kind between private and political crimes, which are separated by profound differences. The question is not to examine the moral efficacy of capital punishment in general; because, whether it addresses itself to the conscience or fear, it will not produce the same effect in conspiracies as in robberies. It is necessary to confine ourselves exclusively to the former class of offences, in order to appreciate its influence. There, as in other cases, it proposes for itself the double end which every punishment aims at: it would prevent the evil, in making the crime detestable and the chastisement terrible.
I have just said that political crimes are of such a description that their moral perversity is more doubtful, more variable, and less generally recognised than that of private crimes; the punishment, therefore, whatever it may be, has a work here to perform which is spared it elsewhere. When some act of the kind is proclaimed to be criminal, men are not found, as in the case of murder or robbery, decided upon its character. Convictions must be changed, and a struggle entered into not only against passions, but against ideas; and as the question is to act upon those very men who would be inclined to commit what is thus proscribed, the difficulty becomes immense. In the present state of manners, the destitute, the vagabond, or the depraved, whatever be the unhappiness of their situation, or the vice of their inclinations, never believe that they are morally permitted to rob. Everything inculcates the interdict, and recalls it to them when they forget it; and the law finds very rarely, even in them, a belief directly opposed to right. Men carried to political offences, on the contrary, are enemies alike to the convictions and commands of the law; for the law affirms the established order to be good, while they think it bad; its continuance necessary, while they desire its fall; its existence sacred, while they demand its overthrow. No point of contact exists between these men and the law which addresses them; no common principle unites them; and to obtain obedience otherwise than through fear, the law must begin by making them believe it. Before obtaining this chief and powerful efficacy, which consists in fortifying the natural antipathy to crime, punishments are here encountered by an unaccustomed obstacle. They have not, in general, to do with beliefs; they are themselves a sanction to public belief, acting upon men who have transgressed while believing. How can the sanction of a principle produce its effect in a case where the principle does not exist! It may prove the strength of an enemy, but not the justice of its cause. Great questions recur everywhere. If Providence had imposed on human actions no other curb than fear of consequences—if men entirely abandoned to the counsel of their interest or the voice of their desires, were without those convictions which introduce order into the tumult of passion, and light into the uncertainties of life—chaos would soon invade the world, and the only means of maintaining order would be the sudden abasement of our nature by the absolute loss of its liberty. But man, by his moral convictions, binds and adapts himself to the will of Providence: he is in direct communication with it, comprehends the language of its laws, admits its principles, and submits himself to them freely; and notwithstanding the struggles which agitate him, notwithstanding his constant errors, there is no need of force to substitute slavery for obedience.
What man would be in his relations with Providence if his moral principles were to fail him, men inclined to political offences pretty nearly are in their relations with power. They do not believe what it believes; they have no wish for what it wishes; they contest with it even the legitimacy of its existence. How must power act upon them? It has sense enough to understand that force alone will not suffice, that it has never had enough of this to exterminate or imprison any considerable portion of the society it governs. It must change its dispositions, and re-establish between it and them this community, if not of intentions, at least of beliefs, which gives law its true empire, arming it with the power to prevent a hundred crimes by punishing a single one, and raising its administrators to the rank of teachers of the people, whereas formerly they tried in vain to remain their jailers.