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?

{260}

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.

{262}

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.

{264}

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.

{268}

General History of Civilisation in Europe, From the Fall of the Roman Empire Till the French Revolution. A Treatise on Death Punishments. · 第 2 / 11 章