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.
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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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