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chapter three: On Punishments - Benjamin Constant, Principles of Politics Applicable to All Governments [1815]

Edition used:

Principles of Politics Applicable to a all Governments, trans. Dennis O’Keeffe, ed. Etienne Hofmann, Introduction by Nicholas Capaldi (Indianapolis: Liberty Fund, 2003).

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


chapter three

On Punishments

The guilty do not lose all their rights. Society is not invested with unlimited authority even over them. Its obligation to them involves inflicting punishments on them only proportionately to their misdeeds. It must not make them undergo sufferings other than those [189] which have been laid down by prior laws. It has yet a further duty, namely to institute against the guilty only such chastisement as cannot stir up or corrupt the innocents who witness it.

This last duty rules out all experimentation with torture. Toward the end of the last century people seemed to have sensed this truth. Human skill no longer sought how to extend as far as possible, in the presence of several thousands of witnesses, the convulsive agony of one of their fellow creatures. We no longer savored premeditated cruelty. It had been discovered that this barbarity, ineffectual as regards the victim, perverted the witnesses of his torment and that to punish a single criminal a whole nation was being depraved.

A few years ago it was suddenly proposed by men of no authority that we revert to these frightful usages. All the sound section of the public shuddered with horror. The government balked at this ferocious blandishment; and if no one deigned to reply to these men, they owed it just to the contempt they inspired that they were repulsed only by silence.

The death penalty, even reduced to the simple deprivation of life, has been the target of objections by several estimable philosophers.10 Their reasonings have not at all convinced me that this punishment is never just, and I did not need their reasonings to be convinced that it should be extended only to a very small number of crimes.

The death penalty has the great advantage that few men devote themselves to odious and degrading functions. It is better that these deplorable agents of harsh necessity, rejected with horror by society, should devote themselves to the horrible work of executing [190] some criminals, than that a mob should condemn itself to looking after the culprits and to turning itself into the perpetual instrument of their prolonged misfortune. Cold-bloodedly to cause the suffering of one’s fellows is always a corrupting action, however rightly that punishment may be imposed by the laws.

This consideration leads me to reject life sentences. These corrupt jailers as much as prisoners. They get the former used to a capricious savagery. They are inseparable from a great deal of arbitrariness. They can veil a host of cruelties.

Condemnation to public works, so promoted by most of our modern politicians, has always seemed to me to entail drawbacks of all kinds.

In the first place, it is by no means proven to me that society has any other right over those who trouble public order than that of removing them from any possibility of doing harm. Death is part of this right, but work not at all. A man may merit losing the use or possession of his faculties, but he can alienate them only voluntarily. If you allow that he can be forced to alienate them, you fall again wholly into the system of slavery.

Moreover, to impose work as a punishment is a form of dangerous example. In modern societies the great majority of the human race is obliged to do excessive work. What could be more imprudent, impolitic, and insulting than to present work to it as the punishment for crime?

If convicts’ work is indeed a punishment, if it is different from that to which the innocent laboring classes of society are subjected, if, in a word, it is above ordinary human exertions, it becomes a death penalty more extended and painful than any other. Between the Austrian prisoner who, half-naked and his body half in the water, drags ships on the Danube, and the wretch who perishes on the scaffold, I see only a difference of time which favors the latter. Joseph II and Catherine II11 spoke always of the abolition of the death penalty in the name of humanity, while they inflicted punishments no less fatal and rather longer and harsher.

[191] If, on the contrary, condemnation to public works is not a refined form of death, it is the cause of revolting and contagious depravity. In some countries of Germany, people condemned to this punishment, treated gently, get used to their fate, take pleasure in their opprobrium and, not working in their servitude any more than they would in freedom, they offer the onlooker a picture of gaiety in degradation, happiness in debasement, security in shame. This must produce in the mind of the poor man, whose innocence serves only to impose on him an existence no less laborious and more precarious, notions which by way of comparison make him despondent or lead him astray.

In sum, the sound of chains, these galley slave clothes, all these insignia of crime and chastisement constantly and publicly exposed to our sight, are, for men bearing within them any feeling for human dignity, a punishment longer lasting and more painful than for the guilty. Society does not have the right to surround us with an eternal commemoration of perversity and ignominy.

The setting up of colonies, where criminals are transported, is perhaps of all harsh measures the closest to justice as well as to the interests of society and those of individuals society finds itself obliged to place at a distance.

Most of our faults are occasioned by a kind of clash between us and social institutions. We reach youth often before knowing and almost always before understanding these complicated institutions. They surround us with barriers we sometimes cross without our noticing them. Then there is established between us and our surroundings an opposition which grows larger because of the very impression it produces. This opposition makes itself felt among almost all social classes. In the upper classes from the self-isolating misanthropist to the man of ambition and the conqueror, in the lower classes from the man who addles himself with drink to the one who commits outrages: all these are men in opposition to social institutions. This opposition develops with most violence where the least enlightenment is found. It weakens proportionately with old age, as the force of the passions collapses, [192] as one reckons life only for what it is worth, and as the need for independence becomes less commanding than the need for peace of mind. But when, before reaching this period of resignation, one has committed some irreparable fault, the memory of this fault, the regret and remorse, the sense that one has been judged too harshly, and that this judgment is nevertheless final—all these impressions keep whomever they are pursuing in anxious irritation, a source of new and even more irreparable mistakes.

If the men in this fatal situation, under pressure from transgressed institutions, and slighted by social relationships they have forever vitiated, were now suddenly snatched out of it, if nothing remained with them from their earlier life other than the memory of what they suffered and the experience they acquired, how many would not follow an opposite road? How readily, being returned suddenly, as by a miracle, to safety, harmony, and to the possession of order and morality, they would prefer these joys to the fleeting temptations which had led them astray! Experience has proved what I say. Men deported to Botany Bay for criminal actions have started their social life again, and, believing themselves no longer at war with society, have become peaceful and estimable members of it.12

If it is just and useful, however, to separate culprits thus from environments which can only hurt and corrupt them, we render the establishment of colonies of this nature absurd and barbarous when we pursue men who ought no longer to exist for us, with implacable hate, in another hemisphere, prolonging their punishments and shame, keeping them still in a regime of ill will and ignominy, seeming to demand a metropolitan right to surround them in their far-off refuge with things which will cause them suffering, degradation, and corruption.

Is it necessary to add that nothing that the reader has just read applies to deportation to the colonies except as a punishment? Any arbitrary deportation is the overturning of all principles and a violation of all rights.

[193] The question of extradition is much of a piece with the question of punishment. This question would be easy to resolve if there were no unjust governments. Only culpable actions would be forbidden. Punishments would be pronounced only against real offenses. Nothing then would be more natural than a coalition between all men against that which threatened them all. But as long as there exist artificial offenses, above all as long as opinions are regarded as crimes, extradition will be the weapon of tyrants along with proscription of anyone who dares to resist them. Such are the shortcomings of vicious institutions, then, that they force us to give refuge to crime in order to take away from it the power to pursue virtue. It is a misfortune that we offer the guilty the chance of impunity, but it is not nearly as bad as delivering the good man to the vengeance of the oppressor.

[10. ]In the proceedings of the National Assembly between 30 May and 1 June 1791, the deputies decided to keep the death penalty. Their speeches made reference to Montesquieu and Beccaria, among other philosophers. Among the speakers, Robespierre was against the death penalty, Brillat-Savarin in favor.

[11. ][Also called Catherine the Great in the Anglophone world. Translator’s Note]

[12. ]By the name Botany Bay, Constant means the colonial penitentiary at Sydney, in Australia.