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.
{303}
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.
{304}
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.
{306}
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.