Chapter II.

Physical Efficacy Of Capital Punishment.

The necessity of punishments depends upon their efficacy. If a punishment does not attain the end proposed in inflicting it, there can be no question that it is unnecessary.

The efficacy of punishments is either physical, or moral, or both. It is physical by the impotence to which it reduces the guilty, and moral by the example it offers. The physical efficacy of the punishment of death was at first its most powerful recommendation. In killing an enemy, it did away with danger; and what could be more natural than to gratify vengeance while insuring safety?

In the present day, however, there is no longer any question of revenge. No legislation, no government, wishes to have imputed to it such barbarity. But every society and every government still desires security; and capital punishment seems to offer it.

But the efficacy of punishments is not the same in all places or at all times. It varies according to the different stages of society, the degrees of civilisation, the sentiments of the people, and the circumstances of government. Capital punishment, in spite of appearances, has not, even in a physical sense, the advantage of an immutable efficacy; for in suppressing a known enemy, it does not always suppress danger.

What was formerly the composition of society? A small aristocracy, rich and powerful; and the multitude poor, obscure, and weak, notwithstanding numerical strength. When a conspiracy was hatched by the great, it had its known and important chiefs, invested with immense power: it was the fruit of the ambition of some men, perhaps only of one, and the work of a few personal influences. On seizing two or three of the conspirators, therefore, the danger was over. {259} The Percy family, after having placed Henry Lancaster on the throne of England, becoming discontented, conspired and made war against him; but they were defeated and proscribed, and Henry had nothing more to dread. Where are now those eminent and avowed chiefs, whom to destroy was to destroy a party? Under what proper names are peril and influence thus concentrated! Few men now-a-days have a name, and these few are of little consequence. Power has departed from individuals and families; it has left the hearths where it formerly dwelt, to spread itself abroad in society. There it circulates rapidly, and though scarcely seen in any particular spot, it is present everywhere. It is attached to the public interests, ideas, and sentiments, which no single person directs, which no one represents in such a manner as to make their fate depend in the slightest degree upon his. But if these forces are hostile to power, let it search and inquire in what hands they are deposited. Upon what head will it let fall its vengeance? There are still reformers and leaguers, but no longer a Coligny or a Mayenne. The death of an enemy is now but that of a man, and neither troubles nor weakens the party he served. If power is reassured when the life is taken, it deceives itself: its danger remains the same, for it was not the man who created it. The causes of its perils are widely-scattered and deeply-seated; and the absence of a nominal chief does not lessen their energy, or even modify their action. They do not need interpreters, instruments, or councils. The interests and opinions now exist on their own account, and are directed by their own prudence, and make their way by their own strength. No one has a monopoly of them, and no one can either lose them by mischance or sell them by treachery.

Capital punishment, in this at least, has lost its efficacy: it has no longer the prompt and sure result of taking off the head to which all eyes are directed, or of silencing the voice which speaks to all. It may search among these higher classes, in which it is said are the chiefs of parties; but whatever individual it may fix upon, in destroying him, it by no means neutralises the impending danger.

Have governments any instinctive knowledge of this fact? Does it exercise even unconsciously an influence over their conduct? One is tempted to believe so. During the last seven years, many conspiracies in France have been prosecuted and punished; but no man of consideration or of known name had a part in them. Was this because power did not fear such men, or because it thought it could gain little by ridding itself of them? Yet it affirms constantly that every faction has its chiefs, wealthy and important men, who direct its motions and defray its expenses. How is it that these chiefs always escape detection, or that they are reserved for the parade of the tribune, but omitted in the actions before the tribunals?

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The true cause is this, and it is of importance to remark it, because it proves my assertion--that the Revolution has struck down in a special manner the upper classes. I use this word the rather because it was the class, not the individual, it was the object of the Revolution to strike. Destined to change society, it was not against men, but against interests and positions, that it directed its blows. The horrible spectacle of judicial death has made so deep an impression, that great hesitation is felt in reviving its use in these more elevated regions. Desires have been expressed, intentions half revealed, even attempts begun; but as soon as any point has been reached from which, if entered, there would be no return, the courage, the will, and the capacity to do have been at an end. At this point the counsels of power are divided; its agents are timid, and its partisans refuse their support. They feel instinctively--and not less wisely--that they are entering on a frightful path, without reason to guide or profit to reward them. To treat the classes that have made the Revolution in the same manner as the Revolution has treated those it has vanquished--to act against it as it has acted against its enemies--is impossible; the very thought is madness. Why, then, direct such fury against individuals whose death would be attended with more noise than benefit? Why recommence in the bosom of the higher class that bloody struggle which will serve to excite hatred against power without really weakening its enemies? Is it necessary again to let the people see that neither consideration, fortune, nor elevated station, is any protection against the violence of political passions? They have begun to forget this, and become accustomed to believe that there are social conditions which, from their nature, are strangers to tumult and its consequences, and where the punishment of death almost never penetrates. Should this salutary belief be broken down? Should the multitude be taught that there are conspiracies in those ranks which are the most interested in maintaining order, and the exhibition presented to them of a man well-known, influential, and highly esteemed, dragged to the scaffold like the vilest malefactor? Might not more danger accrue from this spectacle than from the most powerful adversary of government? Is it not by such spectacles that the Revolution overturned not only society, but habits and ideas? Besides, when such a war takes place among men of the same position, education, and rank, it wears a much more serious aspect than elsewhere: the combatants have known, seen, and spoken to each other; those who are defeated know by whom they are so, by whom their destruction has been sought; and their friends will remember it to-morrow: thus enmities become personal, and dangers direct. Is it prudent or is it unavoidable to allow the strife to assume this character? {261} Will men compromise themselves in person, when even success cannot avert danger, for the simple reason that danger lies in many more things than the life or hostility of individuals? Thus in proportion as the chiefs of a party become less important, the more hesitation is felt in destroying them; and the fear of incurring such responsibility is not surmounted by any feeling of its imperious necessity. That spontaneous good sense which directs men almost unconsciously, informs the friends and even depositaries of power that they would have to hunt after the life of their principal adversaries with less profit to their cause than peril to themselves. Three centuries ago, the destruction of a known enemy was our grand object; now such a consummation is dreaded and shunned: and notwithstanding the fierce declarations and blind fury of certain agents, notwithstanding even its own passions, when government is able and ready to strike the enemies it professes to fear, it surrounds itself with a coil of circumstances to prevent the blow, which compromises without serving.

It is said that men are cowardly, each seeking his own safety, and unwilling to put himself forward on behalf of the government. All that may be true; but if there was any necessity in the case, if the strength or safety of power centered in the destruction of certain men, there would not be wanting friends or agents to hire out their courage to their ambition or their servility. But even the vices of human nature change their mode of action with the time: egotism, covetousness, and fear, do not always follow the same course. No one is a stranger to the new stage of society in which we live, no one is ignorant of the real chiefs of party; the men dangerous in themselves have disappeared, and no one believes that the suppression of such and such an adversary could dissipate, or even sensibly diminish, the dangers of power. The physical inefficacy of capital punishment in the higher ranks is deep in the minds of all. In vain would government refuse its belief, for it is no longer in a condition to act as if it did not believe, and neither fear nor passion has the power of recalling a necessity which no longer exists.

Is the punishment of death more efficacious, and therefore more necessary, against the dangers which spring up lower in society? While the high aristocracy is extinct, and conspiracies are no longer the offspring of a few eminent men, the mass of the free and active population has increased in volume, and exercises an influence it did not formerly possess. Perhaps capital punishment, useless against the fallen great, may be more necessary against the intrigues which ferment in the bosom of the multitude.

I request that it be not forgotten that the necessity of punishment depends upon its efficacy, and likewise that I am now treating of capital punishment only in its physical effects.

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And first, I object to the very word _multitude_; that is to say, in the extensive meaning which some persons would give it. To see the insolence with which such persons treat a great population, one would think that we are still in the thirteenth century; that the feudal aristocracy is now in its pride of place; and that it looks down haughtily from the height of its towers on bands of serfs scattered over its domains, or trembling bourgeois coming humbly to solicit permission to rebuild the walls of their poor town, as a defence against robbers. These persons are mistaken: society is not thus formed; there is no longer an abyss separating the higher classes from the mass of the people. The descent from the summit of the social order to its base is by means of close steps, covered with men only slightly different from those above and beneath them. This is true as regards property, industry, education, knowledge, and influence; and although some momentary confusion may be occasioned by the ruins of the old regime, the new form of society is fixed for ever in France. It is necessary to keep this in view, in order to comprehend the effects of legislation and the acts of power, since it is not for the age of Philip-Augustus, but for our own, that we have a government and laws. But let us see how things were managed formerly in the event of political crimes occurring out of the upper region of society, and in what way the governing power proceeded.

On the part of the people plots were rare--the aristocracy had that privilege. This is easily conceivable; for the latter alone could gain by or succeed in them. How could the citizens or peasants conceive the idea of changing the government and seizing the authority? When plots were on foot, they marched in the train of the great, either compelled or seduced. Neither the initiative, nor the direction, nor the fortunate chances of such enterprises, belonged to them.

However, they sometimes troubled the established order. This was by seditions, and general or local revolts, according to the causes which created them--whether oppression, famine, or occasionally new religious creeds. Then the insurrections were frightful: a frenzied multitude quitted their wretched homes, and wandered about in bands, killing, pillaging, and devastating--brutalised in their passions, blind and implacable in their vengeance, ferocious and licentious in their freedom. Such was the war of the peasants of Suabia in Germany, the insurrection of Wat Tyler in England, the Jacquerie in France, and everywhere, from age to age, a crowd of similar risings, less important, but not less hideous.

When such disorders could be repressed before they were converted into wars, it was done without much art. Almost all those who had exerted or seconded them were condemned and executed. All that was to be done was simply to hunt a population from its soil, setting fire to a score of villages, and covering the roads with bodies or limbs hanging from gibbets. {263} When the war had broken out, it became a ferocious chase, which terminated only with the death of the insurgents; or if it was thought prudent to treat with and disperse them by promises, the promises disappeared with the bands which had received them. Thus the peril over, even the British parliament supplicated Richard II. not to pay any attention to such pretended concessions, but to give to all his sheriffs and judges full powers to proceed against the rebels on their return to their provinces. It was not alone during the feudal servitude, in the midst of the darkness and barbarism of the middle ages, that popular movements were thus repressed. When order commenced, when the police, military force, and all the rights of sovereignty, were concentrated in the hands of government, the same means were used, but with more regularity. The number of executions which took place in the reign of Henry VIII. was above 70,000, and under Elizabeth still upwards of 19,000, and insurrections and riots did not furnish the smallest part of them. Madame Sévigné informs us in her letters how Louis XIV. punished the trifling seditions of Brittany. 'The whole of the inhabitants of a large street,' she says, 'have been hunted out and banished, and everybody forbidden on pain of death to harbour them; so that all these wretches, women newly delivered, old men and infants, are wandering away weeping from the town, without knowing whither to go, without food, and without a place to lay their heads. ... Sixty citizens have been taken, and are to be hung to-morrow. ... We are no longer so extravagant: one in eight days is now sufficient to keep justice going; and the gallows appears quite a refreshment.' Society did not see all this blood flow, and the king was not aware of all the executions which took place; but that the punishment of death was efficacious in a time in which such things could pass without the knowledge of society or of the king--in a time in which wholesale banishment, the gallows, and the wheel, were not merely punishments, but the ordinary arms of police--surely one must be hard of belief to doubt it. Whether in the thirteenth century, or even later, these means might have been necessary, I will not inquire. What I know is, that they were possible, and, moreover, that they were physically efficacious, since they really banished in a great measure the danger against which they were directed, positively reducing the number and strength of their enemies; falling upon the popular masses like hail upon a field of corn, cutting off all the petty chiefs, decimating the fighting-men, and, in fact, not only operating by fear, but by real enervation.

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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. {265} 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. {266} 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! {267} 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.

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