It is the consequence of this fact that, founded as it is upon a moral idea, and sustained by those which are joined to or derived from it, the development of its force must be sought especially in the moral order where its principle resides. Elicited by convictions effected in virtue of a right, convictions and rights were at the Restoration the natural means of government. Subject to necessity even in the moment of triumph, obliged to yield in returning to the Revolution, it dreaded what the Revolution desired—it had to conciliate antagonistic principles and rights; but even that was a moral work foreign to its direct action, and which new sentiments and new ideas could alone accomplish. Bonaparte had rebuilt the altars, and restored its solemnities to public worship; and notwithstanding revolutionary clamours, the non-Catholics felt no alarm. After the Restoration, Catholicism came to demand, and liberty of conscience to fear much more. What had the Restoration to do to defend society and itself from this peril? Could it, like the Revolution, or even like Bonaparte, treat different communions now with severity, now with complacency, and arbitrarily restrain or permit their action? No: that would have been opposed to the general nature of its institutions, and have shocked the respect it owed to faith as well as to liberty. Another path was open to it: and that was, to lay vigorous hold upon the principles of religious liberty, to proclaim it in all its acts, to inculcate it in every mind, and to make it, in fine, one of its doctrines of government, one of its public creeds which, really adopted, are found everywhere acting by their own virtue, and maintaining order almost of themselves. All the wants of the new order prescribed to the Restoration such a course; and it had, partly in the necessities of its situation, and partly in its nature, what sufficed for this noble task. The protection accorded to religious and moral ideas was not, on its part, the confession of an error, for all these ideas rallied spontaneously around it. The respect in which rights were held was of great importance to it, for it drew its own title from a right; and the maintenance of the public liberties was not less its policy than their establishment, for it could not, like Bonaparte, pretend to despotism by victory. It was, in fine, its condition and its destiny to rule especially by the moral influences, to aid in their development, to base on their empire the order which it found restored, and to have recourse to force but rarely, and then with regret, as a means foreign to its nature, and the necessity of which rendered its employment grievous.
If we consider the occasions when the present government has tried this means, we shall be convinced, without difficulty, that the natural laws which rule it have had little to do with its use. Sometimes, as in the slightest popular agitations, we have seen it used with a precipitation and to an extent which exhibited less skill than inquietude; sometimes, as in the proceedings of the Cour des Pairs, indications of severity were observable sufficient to inspire much alarm, but which ended merely in correctional punishments. The movement has almost always appeared above the cause, and the effect beneath the movement. I do not know if a neutral observer is in the right to judge thus; but assuredly the employment of force, and the public threats of severity, have failed both in motive and address; and many believe that power has made use of them either wrongfully or unskilfully. Either of these faults would prove that the means of governing are improper. It is not merit to succeed by force even at the moment when it is invoked; but what government does not come to the end of its means? It is still necessary that, after having set it at work, it leaves it public, convinced that this was necessary; and that it has used the means so well as to render this need more rare. If the first of its convictions fail, power is suspected of timidity and malevolence; if the second, it is taxed with want of skill, and its employment of force has weakened instead of strengthening it.
I will not go farther; I have said enough to show in what system of government the Restoration seemed to me born, and how, in trying to leave it, it would lose its advantages without acquiring those of a different system. It cannot strengthen itself more by judicial rigour than by conquests. If fear ever became the machinery of its power—if, in order to maintain itself, it was necessary to terrify the interests, opinions, and sentiments it suspected—the more pressing would be the need, the more useless would be the weapon, and the danger would increase with the necessity. Our government, then, can still less than other governments rely upon the indirect efficacy of capital punishment. Rarely simple, and often in the complication of its effects more hurtful than profitable, this means would carry into the present régime more trouble than security. No one in France or in Europe will ever think that the Restoration is called upon to crush all it may fear. It has not been able to give such proofs of its physical force, that the minds of men submit as a matter of course to its frequent use. When it strikes, many people are tempted to believe it more severe than just, or more in danger than it is in reality, and its strokes awaken less the idea of its energy than of its danger. More than one government, after great severities, has been considered still weak; and in such case it finds itself in the worst of conditions—that of a power whose weakness provokes conspiracy, and which tries afterwards to fill up, by means of punishments, the abysses which that weakness has opened. The reason is, that force must exist before it pretends to inspire fear; and in the case of the Restoration, the sources of force must be sought for elsewhere than in the means of terror. I repeat that power itself has now an instinct of this; for it has not, while administering death-punishment, that confidence, that certainty of success, which is almost its only guarantee. It causes, yet fears the sentiments this melancholy spectacle may excite, without feeling assured of the terror it wishes to inspire; and this instinct is not a mistake, but the voice of nature. It is bound to moderation in punishment, just as in its exterior relations it is bound to peace. The Charter has abolished confiscation, and the Restoration justly honours the Charter. I do not demand the abolition of capital punishment; but I am convinced that, against its enemies, government gains nothing by this agent, and would gain much by showing itself very niggardly in its use. It can no longer have a physical and direct efficacy. Its moral efficacy is not so great in political as in private offences; it is powerless in inspiring aversion to crime; it is equivocal and mixed with the most various results when tending to the propagation of fear; and it is more feeble, more uncertain, and more perilous to the present government than to powers of a different origin and position. Is this enough? It would be well were this all. But many other reasons, and many more dangers, suggest themselves; and these I shall proceed to indicate.
Chapter V.
Double Character Of The Government.
What power seeks in the employment of capital punishment is security. I have shown that this it does not find; but that it often finds what it does not seek, and what it should and always does wish to avoid.
There are some simple truths which no one disputes, which good sense immediately admits, and yet which are no sooner admitted than forgotten. The reason is, perhaps, that being adopted without debate, we are not led to think of their consequences.
Here is a truth of this kind. Every government has a double character. Charged with maintaining public order and justice, and conducting the affairs of the state, it represents the social interest. Formed of men, and thus liable to the passions and vices of our nature, it has, besides, a personal interest, which is, to execute its will, and preserve at any price its existence.
That these two characters are united in power, that the one is legitimate, and the other illegitimate, and that institutions have for their object the constraining of the government to act by the former, and to fortify the people from the perils of the latter, who will deny? Who would even insinuate a doubt? Power itself would not dare to do so. But in this instance power forgets what it would not for a moment deny.
From the fact, that it is only called upon to act in the social interest, while it still preserves a distinct personal interest, proceeds this consequence, that all it does in virtue of the former character fortifies it, and all it does in that of the latter weakens it.