Chapter VII.

Necessity.

I might dispense with this part of the question. If capital punishment is of little efficacy, and I think I have proved the fact, how can it be necessary? However, I will glance at the question, even at the risk of meeting by the way the indirect paths which have conducted me to it.

Let it not be forgotten that I do not propose the legal abolition of capital punishment. Were I to demand this, it would be properly answered, that the existence of such punishments is necessary, though their application may seldom be so; and I would then have to demonstrate that not only is there no need of the punishment of death, but that it is absolutely useless to have it written in the laws. I admit that these are two distinct propositions which have no dependence on each other, and with the latter I do not meddle. I do not break this arm of capital punishment in the hands of power, I merely maintain that, in general, it is wrong to use it. I examine, then, very freely what is called its necessity; for if, in general, this does not exist, it is well to know it; and if ever real, we shall do no harm.

I have shown that the efficacy of punishments varies according to times, manners, and different states of civilisation. The case is the same with their necessity, not only because they are only necessary when efficacious, but for more direct reasons. Formerly the public strength was small, and individual strength great and licentious; and the severity of punishment made up for the insufficiency of the means of power. The wisest kings of the old ages directed frightful laws against the slightest disturbances. Were they wrong in so doing? I think not. Physical order was everywhere met by enemies capable of destroying it, and always ready to attempt its destruction. Central power, without administration, without police, stripped even of the chief rights of sovereignty, and reduced to the personal resources of the sovereign, could not defend society, or even itself, without constantly opposing physical force to physical force; and very frequently the cruelty of the laws, and the number of punishments, proved only its wisdom and desire to protect the public. The chronicles of these times, too, especially praise as just and popular those princes who punished severely and frequently. They were, like the first heroes of Greece, occupied in purging society of its bandits and monsters.

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But what would society of the present day think of a power which, to maintain order, had recourse to such means? It would consider such a power as odious and insane; and this because the means of order have changed with the social constitution. On the one hand, order is maintained, as it were, of itself by the general regularity of manners, the universality of labour, and the public knowledge of the true social interests; on the other, society is concentrated: the public strength is immense, and individual strength small and little aggressive. Every physical resource and every moral influence are placed in the hands of power: it disposes of the riches of the country, of its magistrates, and of its soldiers: no one is too great or too obscure not to fear it. It is everywhere, and everywhere ready to prevent crime or danger. What is the great merit of this new condition?--The maintenance of order at the expense of little blood. When disorder has been great and general, it was not the effusion of blood which could stop it: it was by good administration, not by punishments, that Bonaparte established order in France. Five hundred years earlier, and after crises much less important than revolution, they bordered the roads with gibbets, and often without success.

That which is true of the necessities of social order is also true, and even more so, of the necessities of political order. Power can now defend itself at the cost of much less blood than society.

But let us take a nearer view of the varied characters of the old and present perils of power. Whence formerly proceeded the dangers of a sovereign, or even of a minister? From his rivals and competitors. The House of York disputes the crown with the House of Lancaster, and if one of the two exterminate the other, it will reign in safety. Charles VII. had a favourite, Giac, whom the Constable of Richmond carries oft', judges summarily, and puts to death; and then the constable returns to exercise a dominion over the king, which he has assured to himself by the assassination. Cardinal Richelieu struggles against dangers of the same kind, and defends himself by analogous means. Those who menace men in the possession of power are those who desire its possession. Political questions almost always occur between individuals; and death, which has power to decide either way, is called a necessity.

Where, now, are these enmities, and this personal ambition, which power thus disputed? Who flatters himself with seizing or preserving supremacy by the mere destruction of an enemy? No one. I do not speak of ministers: factions are not always mad; but none is so much so as to think that their chiefs may be invested with the ministry, by killing those of the opposite faction. As for sovereigns, more than one in Europe believes himself menaced; but is it by a rival or a pretender? Have the revolutions of Spain, Portugal, Naples, Piedmont, been the fruit of a litigation for the throne, the work of an ambitious subject?

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It is evidently not so. The nature of political dangers is changed. The struggle is no longer between men, but between systems of government. The fate of ministers, or even that of dynasties, is not regulated by the fate of their adversaries, but by that of the system they adopt or represent. Formerly communities had masters, between whom the battle was fought; but now they are really free, for it is from them alone, or the great parties which divide them, that power can draw not merely its strength, but its pretensions. From them, also, can its dangers alone arise. The question is no longer who governs, but how he governs? Individuals are no longer, I repeat, but the instruments and interpreters of the general interest. Is it not clear that against such dangers, and against such adversaries, capital punishment is neither powerful nor necessary?

It has, however, one effect; and it is this: at the same time that it cannot destroy those whom power wishes to destroy, it alarms those whom it does not wish to alarm. Its blows have at once less force and more extent than is necessary. The man it reaches is nothing in himself; he is feared and destroyed only on account of his connection with certain interests and general sentiments wherein the danger really resides. They desired to dissipate the danger, and have crushed only a man; and yet the stroke is felt throughout the whole sphere of interests of which his was the organ. These interests do not die with his death, nor are they even sensibly weakened; but the survivors estimate the intention which has killed him; and say that if it were possible they also would be killed--which, however, they know is not possible. And this persuasion is not only spread throughout the interests which exactly correspond with the conduct and language of the victim, but also throughout those connected with him by more distant relations, little felt, perhaps, during his life, but now compromised and menaced by his death. Thus power, by being mistaken in the nature of its dangers and enemies, brings upon itself an immense evil without obtaining the good it sought. It is doubly deceived in the importance it attaches to a man; considering him both greater and more insignificant than he really is. It has forgotten that, in ceasing to be the strength of his party, he has become its symbol; and that what he represents can no more be abolished in his person, than his person can be touched without its being felt throughout the vast circle of which he forms a part.

In this, again, the employment of capital punishment is a perilous anachronism. It is addressed to other times, other force, other dangers. It does not obtain what it promises, and it produces what is not wanted. It troubles or irritates the mass of society, to prevent the irritation and trouble occasioned by the voice or presence of an individual.

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And is it now necessary against this mass itself? That would be a pity; for it would be all the more difficult to direct, and I have shown how doubtful its moral efficacy is, and that its physical efficacy is impossible. Nevertheless, if the necessity spoken of has any reality, it must be there, for the danger is there as well as the question. The possession of power is no longer the object of private struggles, once sustained by such bloody means; but the system and conduct of power are debated between it and society; and the former has indeed great need of defence, for it is vigorously attacked.

Why is it so, or rather with what intention is it so? This is the grand question. The rivals who formerly disputed the empire could not all possess it; and they were therefore obliged to kill each other. Is it a combat of the same nature which now takes place between power and society, or those great portions of society which it considers enemies? Is there that radical incompatibility, that impossibility of co-existing, which there is between two individuals who both pretend to the same place or the same property!

This is not, and cannot be. What its adversaries demand of power, is not the position it occupies, but a course of conduct which suits their views. General interests never govern in person, but desire to be governed according to their own feelings and desire. And this desire, morally speaking, the established government can always accomplish. If it will not do so, or does not know that such is in its power, the incapability may arise, though it is not in the things themselves: it is power which has created it, and the vexatious necessities thus created are its own fault.

Once set out in the way where it meets with such difficulties, can it turn back? Or if it persists, and proceeds in employing the means which those necessities command, will it succeed in its design? I affirm boldly that it will fail. In our day, every government which, through its misdeeds, draws a line of distinction between its own necessities and the social necessities is lost. The most terrible use of capital punishment cannot save it, for it can never take lives enough. We have seen situations of this kind: Bonaparte imposed upon himself the indefinite necessity for war, just as the Convention did the indefinite necessity for death: the Convention killed many, and Bonaparte vanquished many; but the time came when both the scaffold and victory refused to serve their former masters. Social necessities, repressed for a time, regained their dominion; and the power which had disowned them saw itself incapable of supporting the factitious necessities which it had put in the place of truth.

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I do not admit the natural necessity of capital punishment. Or if I do, for the sake of argument, it will be only to show that the admission would avail nothing. I do not suppose that any power ever existed which took no trouble to insure its definitive success, and aspired no higher than the postponement of its ruin. In fact such power does not exist; for if a government found its ruin certain at the end of the course it followed, it would immediately leave that course: what it hoped from it was really safety. But if it were so egotistical and careless as to look no farther than the present, I would again counsel it to beware. It might formerly indulge in this indifference, and count upon a long sufferance; but now everything goes quickly, the more so that society is calm, and exhibits few tokens by its agitations of the immense strength it can wield when necessary. The approach of the Revolution did not escape the inert foresight of Louis XV. If new revolutions were still nearer, perhaps they would be still less felt under the steps of power. It would do wrong, then, to be satisfied with precautions when the time would be so short and the means so uncertain.

When we inquire on all sides into the necessities and dangers of power, from not one quarter comes the answer that capital punishment is called for by necessity, or can lessen or dissipate danger. I have considered it in all its bearings and effects; and I have almost always found it without legitimate motives; without virtue when it has, if not legitimate, at least real motives; seldom efficacious; and still seldomer just. What remains, then, but the memory of its old services! Revolutions make successful use of it, it is said, and will do so still. I know it; but revolutions are not permanent; and do governments think themselves of a like transitory nature? Prodigious error! Governments would imitate them in displaying the same strength and attaining the same results. But they forget that it is their business to lay at least the foundations of that permanence which it is the fate of revolutions to destroy, and to perish in destroying. But after all, the mistake is not surprising; for it is in our day, and perhaps for the first time, that this difference has clearly appeared. Up to the middle of the seventeenth century, revolution was, if not the permanent, at least the habitual state of European society. Delivered up to force and to rival forces, and to rivalries which were really wars, society knew neither the conditions nor the means of stability and order. The same ignorance in this respect possessed government, factions, and people. They all in their respective fortunes made use of the same arms, fell into the same practices, and produced the same results. Society has now more ambition. In tyranny or disorder it demands of government quite another thing than mere change of name. It knows what it ought to have, and what it can to do. {305} When the physical world came out of chaos, it still had its crises; but it also had its regularity, its repose, and its preserving laws. Though slower in emerging from disorder, the social world, the world of man, has begun to comprehend the profound difference between a state of peace and a state of war, between order and disorder, between revolutionary and regular governments. Forces differ as well as ideas, the means as well as the end. I admit that capital punishment is of use in revolutionary policy; but it is so in no other. A regular government making it a necessity, and employing its aid in laying the foundations of its repose and duration, would place itself in the path of revolution. If it proceeded only half-way, that which made the strength of revolutions would be its weakness; and if it entered fully, while changing its character it would change its destiny, and devote itself to the destruction which is the fate even of successful revolutions. Politically, capital punishment must in the present day be either a rapid succession of bloody oblations to the insatiable divinities, or a useless sacrifice to impotent idols.

Power itself, I repeat, feels this; its confidence in such means is rather a prejudice than a belief, and, like all prejudices, occasions disquiet and hesitation even at the moment of action. It, however, persists in this means; and we must state the true cause, stripping it of its pretexts and delusions, and show to which divinity the oblation belongs. This cause is neither justice nor necessity--it is fear; and not that legitimate and prudent fear which looks danger in the face, and takes means to avert it, but the blind cowardice which desires rather to be saved from itself than from the peril, and which, without rational intention or preconcerted design, adopts by chance whatever presents a hope of escape. Prudence desires safety; but fear dreads the aspect of the danger, the reality of which may perhaps be greater to-morrow. But this matters little; power will have shaken off in a moment the anxieties of its situation, and will be persuaded that it has no fear. This intractable passion never changes its nature; what it is in the obscure incidents of private life, it is still in the bosom of greatness, always more occupied with the torment than the danger; always giving itself up to vain and unreasonable expedients, if they only offer a little shelter or a little respite. And when the fears of faction are joined to the fears of power, when this blind sentiment, penetrating the mass of a party, becomes a collective passion, and pushes forward one upon another individuals who fancy themselves without personal responsibility, then reason is at an end, every calculation disappears, and there is no longer a question of necessity, utility, or justice. Fear becomes its own necessity; one of those fatal necessities the empire of which endures the more it fails in success, and into which men fling themselves both mechanically and passionately, without being in a state to reflect. A terrible example of this was given by the Convention and the Jacobins.

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But fear itself is deceived, and this new and last advocate of capital punishment sees itself every moment cajoled by the hopes which attach it to the cause. Such is the power of facts, even when misunderstood and violated, that in our day political severities can no more dissipate fear than danger. Their inutility is seen even by the blindest fear; they can neither procure for power, nor for the terrified factions which make use of them, more than a momentary lull, itself a source of new anxieties. Let parties especially take heed that their condition is not less changed than that of governments. Formerly many individuals retained their strength and importance after the defeat of their party; they preserved in their original force the guarantees against reaction, and still negotiated on their own account on fair conditions. But now what are ministers when their power has left them? What becomes of the most considerable men of a party when that party is overcome! They are lost in the mass of citizens, which the public laws and true justice alone protect; they may no longer act for themselves, and have no other defenders than those principles which are obstacles to every useless severity, and every pretended necessity, and which, in the matter of punishments, interdicts to power everything with which society can dispense. It is then now more than ever the interest of all, of parties as well as of power, of individuals as well as of parties, that these principles should be recognised and introduced into the practice of government. I will try to point out the means.