Chapter VIII.
Means.
Is there any one who does not demand the legal abolition of capital punishment as a political engine? I think there is, and I have contracted the obligation of proving the fact. I might, as is often done, have raised my voice against the severities of our penal code; I might especially have said that, drawn up on the issue of a violent crisis, it must bear the impress of the necessities of the day, real perhaps at that epoch, but now false and tyrannical. Revolutions have this deplorable effect in common with barbarism, that they bequeath to living generations the terrible laws which were made to put a stop to their fury. {307} Almost everywhere in Europe the nineteenth century bears the punishment of the disorders of the fifteenth. Revolutionary France weighs in the same manner on constitutional France; and it will be long before the Charter is free from the inheritance of the Empire. But I will not pause upon this ground; ground from which power is not easily forced, and upon which it is not always wrong in fortifying itself. It is too often attacked by vague declamations and inconsiderate hopes; and declamations now-a-days are but little respected even when their subject-matter is true. Our epoch has a predilection for good sense; but it mistakes oddly sometimes what it honours with this name; degrading it, and becoming itself degraded, by conferring it upon aimless practices or dangerous inactivity. But even then this error may be managed; and for my part I do not ask of power that it will give us all the good laws it can, but merely that it will employ the existing laws agreeably to our interest and its own. This it can do, and sometimes does. I could easily point to laws which, though not abolished, are not, and cannot be acted upon without both shame and danger. The statutes of Great Britain are full of penal laws fallen into disuse. When their formal repeal is called for, the friends of power exclaim against it; but they would exclaim quite as much were they brought into operation.
I do not ask for repeal, which would be to forget or violate indirectly recent and positive laws. The latitude which judges enjoy in England does not belong to our tribunals; and neither is it to the tribunals that I address myself. The application of the laws is their right and duty; but the government moves in a larger and freer sphere; it has great influence in political processes, both before they come before the tribunals and after they leave them. The means I seek belong to this influence, which has them completely in its power.
The prosecution and qualification of political crimes on the one hand, and the right of pardon on the other, are the means by which government can, without changing or infringing on the laws, preserve the legal domain from capital punishment, in rendering its application more rare, and thus placing its conduct in harmony with true justice, true social necessities, true prudence and its own duty.
This liberty of action should involve reason in decision; and since the arbitrary preserves a place in the attributes of power, it should be considered to create a void that must always be filled by justice and the public good.
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