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?
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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.
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