Of all the means which power employs for attaining this end, punishments assuredly are the least efficacious. Punishment supposes crime, and if the supposition is not admitted, the moral efficacy of the former disappears. When the man on whom the punishment is inflicted, and those who think with him, judge that he is unjustly smitten, in this case punishment has the effect of injustice: it irritates, confirms the hostile opinion, widens the breach between the law and its transgressors, and thus goes directly against a part of its own purpose. But if, on the contrary, the enemies of power admit that it is right in punishing them, if they see that it employs its force against them with reason, they can only have taken the part of considering themselves in a state of war. From that moment every social tie is broken; the question is no longer of laws or chastisements; plots are ambuscades, and punishments defeats. Government has lost its moral position: it has descended to an equality of force; everything is equal between it and its enemies: as it has the right of self-defence, they have the right of attack: the claim of obedience on one side, and justice on the other, are equally false. All this belongs to society, but society is dissolved: there is nothing now but war, with the liberty of its arms, the continuity of its dangers, and the uncertainty of its results.
Of all punishments, capital punishment is that whose employment precipitates parties and power most rapidly into this last situation: it brings war to mind by rousing violent animosities, and provoking vengeance. It is therefore the punishment which possesses least of all the kind of efficacy we are now in quest of. This efficacy, I repeat, has for its condition the reform of certain ideas: it will not bear its fruit till the men it addresses consent to consider those acts culpable from which it would dissuade them; at least they must have conceived doubts on the subject, and the notion of the legitimacy of power must have entered their minds. It has often been attempted to introduce moral convictions by means of punishments, but when these have not succeeded in exterminating, they have always failed. It is said that moral convictions are not aimed at—that the struggle is only against vicious desires, inordinate wants, and criminal interests. But this is a mistake: for when the morality or immorality of an action is not evident, when there is room for the least uncertainty, then passions, interests, everything, hide themselves under opinions, and all resolve or metamorphose themselves into ideas. The most perverse and headstrong of men are disinclined to dispense with reason, and content themselves with brute force. They have ever a wish to legitimise in their own eyes even the least disinterested conduct; they carefully collect every motive, every pretext, and seize upon the slightest pretence; and what is more easy, after an unexpected overthrow, to form thus for themselves a creed which lends its support to hostility against power? Was there ever a true faction that was anything else than a union of banditti forced on by their own base interests, and accessible only to fear? The weakest government of our day might hold such a danger cheap; but punishments are desired to act in a very different sphere: to teach the citizens that it is culpable to conspire against established order, and deliver their country to the terrible chances of revolution. Be it known, however, that punishments have no power to propagate such ideas; they must already exist in the mind. It is weakness to suppose that they can be reaped when other causes have not yet sown them: this is attributing to punishments a power which they do not possess: they cannot make things be detested as criminal which are regarded as meritorious, nor can they demonstrate the moral legitimacy of power: they have no effect upon the established convictions of the people; and when these are hostile to authority, it is by other means than punishments that government can succeed in changing them, and when they will not change, punishments, instead of reforming, only strengthen their empire. Let us talk no more, then, of capital punishment preventing political crimes by inspiring a hatred of them: this really moral efficacy, however powerful against ordinary crimes, is here without reality; and the more vigorous parties become, and the more the perils of power increase, the less pretence can capital punishment make to such salutary influence. It is, then, both for government and the factious, only another step in antagonism, and for the public only another blow of destiny, fatal to the vanquished to-day, and perhaps to the conqueror to-morrow. Does it act more powerfully through fear? I have already shown that in this point of view, and by the sole difference of social position existing between conspirators and robbers, political crimes offer to the laws much less hold than private offences. But this is not the only cause which renders the terror of punishment less efficacious in political matters than is commonly supposed.
Men are influenced by different motives; and there must be an agreement between them and the means used for control. Who does not know that he cannot speak to a man whom interest governs in the same manner as he would speak to him who is ruled by passion, or to a man who is possessed by passion as to him who is directed by an opinion or a duty? We study carefully, in the private relations of life, those various dispositions of mankind, and never think of addressing ourselves to feelings which have no existence. The legislator who acts upon the masses cannot arrive at this nice justice, this special fitness of things; but he need not commit the profound absurdity of directing the same means indifferently against dispositions the most different; and since he can avoid this, it is imperative upon him to do so, not only for the sake of justice, but for the sake of success.
Fear, for example, has more efficacy against interests than passions, and against passions than ideas: it is easier to prevent a poor man from stealing than an irritated man from seeking vengeance; and the angry man, in his turn, is more easily restrained than the fanatic who believes himself commanded to assassinate. Generally, when a man's governing principle is of a nature in some sort material, such as a purely personal interest, fear has much power: it opposes interest to interest, and all happens thus in the same sphere; for there is similitude and fitness in the impelling and opposing motive. As we approach the moral order, fear loses its virtue: it ceases to be in natural and direct relation with the impulses it would repress; it addresses them in a language not their own, gives them reasons they cannot admit, and thus falls short of the mark it aims at. But when we arrive at the purest and rarest of all motives, at the full and dominating convictions of our moral nature, fear remains without action upon the man thus placed above that world to which its power is confined.
And this is not a theory: it is a series of facts, regulated by Providence, which has willed that material and moral order shall remain distinct and profoundly different even in their union.
To which category do these causes of action belong which generally urge men to political offences? Here, also, the diversity is great; for I am far from believing that everything happens within the moral order, or even upon its confines. Among the causes which excite hostility to power are ideas, passions, and interests: here honourable sentiments or sincere beliefs, there frenzied desires or the most brutal selfishness. All these principles of action join, are confounded together, and form in their admixture a heterogeneous force, whose different elements cannot be combated by the same arms, nor be repressed by the same means.
I do not say that the fear inspired by the spectacle, or the chance of capital punishment, is without efficacy to prevent the explosions of this confused force: but I do say that its efficacy is not of a simple nature; and that even if it finds in the adversary it combats points where it can strike with success, there will be others which it cannot reach, and where its rebound will produce a contrary effect to that contemplated by the penal law.
When Charles II., urged on by the Catholics, and by his own taste for absolute power, resorted to condemnations and punishments, the opposition included, as always happens, the most heterogeneous elements. The followers of the republic joined those of Cromwell; and the fanaticism of the Puritans did not refuse an alliance with men whose disgust of frequently-ridiculous controversies had rendered them indifferent to every religious belief. To men revolted by the license of the court were joined others influenced by the love of disorder, the melancholy fruit of revolutions; and the ambitious who sought after popularity, for the sake of wealth or power, stood side by side with sincere patriots, disinterested friends of their country's liberty: thus Lord Shaftesbury voted with Lord Russell. In the same party, in fine, met together the most noble sentiments and the most culpable passions, the most sincere beliefs and the most worldly interests, the highest virtue and the most shameful desires.