Chapter IX.

Prosecution And Qualification Of Political Crimes.

I know that the prejudiced will here rouse themselves to repel me, and I know what they will say. They pretend that everything is foreseen and absolute in the execution of criminal justice; that the administration has no more latitude than the judges, and that in the prosecution of crime it merely executes positive laws, which command and regulate its acts as well as the judgments of the tribunals. According to such reasoners, authority knows nothing of crime before the moment of prosecution; and from that moment there is no longer either will or freedom. It is bound to prosecute, for no criminal must remain unpunished; and bound to interpret the crime according to the interpretation of the law, for the legal punishment annexed to the offence must be inflicted.

Strange contradiction! Those very men who maintain such doctrines are the same who preach respect for facts and contempt for theories; and here they twist the most evident facts, in order to adapt them to the most factitious and arbitrary theory that can be conceived.

I confine myself to political crimes, of which alone I have to treat. It is not true that authority has no knowledge of these crimes, and possesses no means for their repression before the moment they come within the ken of the law. It is untrue that even then it has not the option to prosecute or not, or that, when undertaking to prosecute, it is restrained by legal texts to a single and precise interpretation.

The greater number of political crimes are conspiracies, which is proved by the numerous accusations now brought forward. But what is a conspiracy! An attempt at crime, often nothing more than the project of an attempt. The law sees crime in the project, for it requires merely the criminal intention without waiting for the commencement of the deed. In order to stay the execution of a project which has not commenced, but exists only in the common thought of its authors, authority must know what it is; it must have tracked this thought so far in the course of its formation as to be able to seize it at the moment when it is perfected in the moral course, without having made the smallest progress in the physical course. Authority, then, is not generally here, as in the case of private crimes, surprised by an unforeseen and unexpected offence, which becomes apparent only at its consummation, and leaves nothing to be thought of but the capture of its perpetrators. {309} On the contrary, it assists at the birth of crime, and watches it in the cradle. Why not stifle it there? What hinders it? What compels it to allow crime to grow, that it may afterwards have to prosecute it? It is surely no uncommon thing to crush a design in the bud. All wise governments have done so; they have preferred dissipating conspiracies to punishing them; and frequently, when very near their execution, they have averted the peril, and prevented the necessity of punishment, by merely showing themselves to be on their guard. Henry IV., and even Cromwell and Bonaparte, afford more than one example of this prudence. Unskilful power, and governing factions, have alone need to wait till they can arm themselves with the rigour of the laws; they alone are under the necessity of allowing crime to ripen before their eyes ere they crush it. To some the fear, and to others the passions of a party, render this perilous and culpable conduct necessary; and in our day it is of less use than ever. Two instruments now in the hands of power, and almost unknown formerly, absolve it from the necessity of having recourse to it: these are the police and publicity. By means of the police, it is enabled to penetrate into the most secret conspiracies; by publicity, conspiracies denounce and thwart themselves. Formerly authority had not so many means of obtaining information and warning; but now, besides the secret police, it has another still more efficacious agent, which, established everywhere, unveils the mysteries of society, and deprives conspirators of the resources and haunts which the general disorder offered them before. But the effect of publicity is still greater; and governments, blind as they are, lament the fact. They do not see that it works for them as well as for us; since, if publicity exposes them to the gaze of the public, it likewise exposes the public to theirs. Conspirators can no longer live in courts side by side with sovereigns, meditating on their plans by favour of the universal darkness and silence. Hypocrisy is of no more avail either for the enemies of power or for power itself. Men are formed into classes, where each takes his place according to his own sentiments or desires; treason fades before the light; every thought, every intention, is unveiled; and conspiracies, formerly the monopoly of men powerful and remarkable on the political stage, seem now reserved for the weak and obscure. The first would still conspire, if they could do so with success; but they walk in broad day; every word, every step, draws attention; whatever be their reserve and ability, they never can obtain concealment, for publicity is the condition of their importance. If they were silent, and hid themselves in secrecy, they would cease to be what they are in their party; and how can they plot successfully without silence and concealment? {310} Everything, in one way or other, delivers up conspiracies to power: against those of the higher class there is publicity; against those of the lower, the police; when they would be powerful, they arc difficult to form; when they would grow in the shade, they are feeble; and everywhere authority, warned in time, has a thousand means of thwarting them before they arrive at the smallest prospect of success.

How, then, can it be asserted that authority has but the severity of the law for its defence, and is therefore obliged to allow conspirators to go on towards the scaffold, tracking them quietly along that path it could so easily close! Is it imagined that punishments alone will prevent conspiracies? This is another mistake; the prospect of failure acts much more powerfully than that of chastisement in the prevention of crime. Why do so many men, in the hope of fortune or glory, face so heedlessly the cannon of battle? It is because they flatter themselves that the shot will not hit _them_. The same confidence makes in a great measure the courage of conspirators: they know very well that the law likewise deals death, but they hope to escape its cannon--that they will be under cover from the marksman--and this is the idea which accompanies and sustains them in their enterprises. But let this idea be contradicted by facts, let them see their plots penetrated and thwarted; and here will be discouragement and fear much more efficacious than the punishment of death, which they would escape if undiscovered. I do not hesitate to say that a plot baffled by the vigilance of government, even when not punished, has more effect in intimidating than the severest chastisements inflicted upon conspirators who have failed by their own fault at the moment of the outbreak.

Who will now assert that it is the legal duty of authority to allow crime to come to a head, and wait till it is before the judges, whose office it is to condemn? Who will say that it abuses its option when it stops crime and punishment in their progress towards each other? Who, on the contrary, will deny that such is its bounden duty, and a duty the more incumbent, that it has now more means of discharging, and less interest in neglecting it?

But the partisans of condemnations have yet a refuge: they say that central authority, or the higher administration, does not institute prosecutions; that the great law officers and judges of instruction have the duty as well as right of commencing of their own accord in political as in other matters; and hence they conclude that we cannot exact from a minister that which does not depend upon him, but upon numerous and independent magistrates.

If I may be permitted to say so, I entertain a profound disgust of those hypocritical arguments which, knowing their own nothingness, lie without the hope of deceiving. In my opinion this one is of the number; but yet it must receive our attention, since it is used in the controversy. {311} In fact I do not fear to say that, in our day, and excepting two cases within my own knowledge, no prosecutions for pure political crimes, such as conspiracies and offences of the press, have taken place but when authorised by the minister. I know well enough how these things are managed, and I do not believe that any _procureur du roi_ is permitted to engage government in such processes against its will, or without its knowledge. Has this officer the right to do so, and would the ministers allow it? Is the action of the public ministry in matters of political crimes spontaneous and independent in principle? The question becomes important, and although forced to content myself with a glance, I will not elude it.

Under a constitutional regime, there are only two kinds of magistracies, responsible and irresponsible; and wherever power is established, justice and liberty demand absolutely one or other of these guarantees. It is the custom to believe that independence results either from popular election, or permanence of office; but though I believe that one of the two conditions may be necessary, I do not think it is always sufficient of itself. Independence is not so easily formed; for besides its legal, it has moral conditions, which are not obtained by an act, or in a day. It does not less depend upon the personal steadiness of the magistrate, his social position, and the idea he has himself conceived of his rights, than on the origin or duration of his functions. They might render the prefects unremovable to-morrow, but they would not be as independent as the sheriffs of England, nominated by the king, and for a single year.

I do not say this in order to deny the independence of our unremovable magistrates; for I believe that, for eight years past, and especially in the higher courts, it has made a real progress. Liberty cannot begin to dawn in a country where its spirit is not everywhere diffused, even among the depositaries of power. I do not think that this independence is yet all it should be; and it is important not to allow ourselves to be deceived by words, or to see in mere exterior signs the certainty and reality of the guarantees. However this may be, it will be admitted that if permanence of office does not secure the independence of the magistrate, his want of permanence must imply that he is responsible.

Unfortunately, responsibility is not easier to create than independence; for it likewise has more important moral conditions than those written in the laws. It has been affirmed that it flows fully and sufficiently from permanence of office. But this is not the case; for just as the world has seen perpetual magistrates very little independent, so it may see removable magistrates with a very illusive responsibility. Removableness is not in itself an efficacious guarantee, or a principle of real responsibility, but for the profit of the higher authority. {312} It is true that the power which can displace at its pleasure the magistrates it employs, is by that circumstance alone assured of their responsibility, so far as itself is concerned. But will that suffice? And when we speak of the responsibility which must supply the place of independence, is the question of that alone?

There is here a snare, perhaps placed without design, but into which we must not fall. Do we ask of ministers to make the responsibility of the ministry they undertake a reality? They reply that the public ministry is independent. Does it desire then to act as if it were so? They deprive it of this independence in alleging its responsibility to themselves. Thus they destroy the responsibility in alleging its independence, and the independence in the name of its responsibility.

So, when all the responsibility of a class of magistrates lies in their removableness, the higher power, to whom alone they are responsible, can alone profit by it. Surely it is not responsibility of this kind we seek, but responsibility to society itself, to justice, and the public interest; without which removableness is but a falsehood and a new danger.

How to escape this danger? How to realise the social responsibility of removable magistrates? There are but two means: the dependence which results from removableness must be combated by the elements of independence, which, giving magistrates a proper power, restricts the higher power in the exercise of its right, and imposes upon it the obligation of using it but seldom, with caution, and only in a case of absolute necessity; or the dependence must be complete, and the responsibility of magistrates concentrated entirely upon the high administration, which alone offers any hold to political responsibility, since it alone is called upon to the public discussion of its acts and their constitutional justification.

If I had to choose between these two means, the first would appear to me to be greatly preferable. I own that I hold that responsibility to be of little value which leaves the place where it originated to seek afar off for that where it will become real, and travels from agent to agent, growing weaker from each transition, until it has found the individual with whom it must rest. It has, in my opinion, a great chance, after so many changes, of becoming in the end illusive, perhaps even unjust. And I think besides that, without giving to the public ministry the same degree of independence which belongs to the judges, we may regret that it has none at all. Magistrates reduced to the condition of simple agents are no longer magistrates. They are wanting both in authority and dignity, for dignity goes with independence. Moreover it happens, in the nature of things, that in many cases, in matters of private crimes, for instance, the action of the public ministry is truly spontaneous and free. {313} Hence it follows that its position becomes a false one in those cases where it has no longer spontaneousness and liberty; and the falseness of its position proves a means of deceiving the public, who are still told of the independence of these magistrates, when, in fact, as in political affairs, there is no such thing. There results from all this for the public ministry a false and bastard position, which compromises it in the ideas of the people, but which would cease if it were indeed a magistracy invested with some personal consistence, with a proper degree of strength, with independence enough to feel itself under the weight of a direct responsibility, and summoned for the service of power, though without holding from it every element of its importance, and every law of its action. I repeat, I would much prefer, and for the sake of liberty as well as of the magistrates, a public ministry thus constituted to the hierarchical subordination of the purely administrative regime; but such things are not the work of one generation nor of a legislative will. Shall we obtain them one day, and on what conditions can such a magistracy have a place in our constitutional system? I have nothing to do with this question here; but assuredly, when the guarantees of the social responsibility of the public ministry are not found to have a degree of independence accordant with its mission, we are in the right to seek them elsewhere. They may, it is true, be of a partial and haphazard nature; but no matter, it is all that remains to us. There is here a great power, a power whose action is in a great measure arbitrary; and we need a visible and real responsibility, at least for discussion. This is nothing more than a right. I again affirm that in political matters the subordination of the public ministry is complete; that here it possesses no spontaneousness; that in almost every case it is the higher administration that orders or holds back the prosecutions, and decides upon their propriety and direction. Since it does exercise this power, it is bound to make use of it reasonably, according to the public interest: it is bound to prove that it does use it thus; and it stands responsible for using it in excess, or without necessity.

Here, then, is the first road opened to the economy of capital punishment, the first means of sparing the tribunals the necessity of a frequent application of the rigours of the law. It rests with power to smother many political offences without prosecuting them. In the present state of society it will find this easy; and in the present state of the magistracy it has the absolute right, for the prosecutions are in its hand.

Let us see the cases where it is obliged, or thinks it indispensable to prosecute. It has not been able to arrest the offence before the complete development of its legal character, or at least till it supposes chastisement to be necessary. Is it from that moment so bound by the laws, as to have no influence in the direction of prosecutions--but is obliged to force the criminal on towards the scaffold whenever the crime appears susceptible of a capital qualification?

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Whoever has watched for some years past the course of political processes, must have remarked two circumstances. Sometimes the judgment has not accorded with the indictment; the court of assizes has believed it a duty, in the position of the question, to lessen the severity of the public ministry, and substitute for a capital crime one of less gravity; or the public ministry itself has reduced its first pretensions, and combated even the first finding which had admitted them. This is what M. Courvoisier at Lyons did in the affair of Maillard. More frequently the public ministry is obstinate in rigorously characterising the offence, and exacting death as its punishment; and in such cases we have seen the judges and jurors acquit the accused, rather than lend themselves to such excessive severity; so that men who would have been subjected to some punishment, had the sentence demanded been moderate, are fully acquitted because it was desired to drive them to the scaffold. I could cite many instances of this kind, but I abstain from doing so, in tenderness to the innocence thus legally proclaimed.

What do these facts prove, if not the uncertainty which often accompanies the characterisation of political crimes? And in this uncertainty, what obliges power to class them under the gravest heads, and to show itself eager for capital punishment at the risk of obtaining none at all! If I am not mistaken here, and if, in political matters, justice, necessity, and efficacy are generally wanting in capital punishment, must not power be too happy in not having to grapple with so terrible an anomaly, and the perils which spring from it, but to find, in the very nature of such crimes, sufficient flexibility to make it easy to characterise them more moderately! Reason commands it, the reason of interest as well as of equity; for nothing can more compromise power than failing totally in a capital accusation; and experience has proved that, notwithstanding the weakness of our judiciary institutions, it could very well do without the blood it had refrained from demanding.

I am aware that it complains of the insufficiency of our laws, and imputes to them both the severity and the ill-success of its issues. They admit, it says, of no alternative: conspirators must either be arraigned as such, and the punishment of death invoked, or the prosecution must be abandoned; for there is nothing under this classification and punishment commensurate with the offence.

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I do not admit the excuse. The penal code, in inflicting on the unsuccessful proposal to conspire the punishment of a long banishment, has opened wide a door for the classification of offences of a similar kind. Few attempts characterised as conspiracy correspond fully with the definition of the law; and since some features are wanting, the accusation must be indeed absurd, and the crime imaginary, if it could not be found an unsuccessful proposal of conspiracy. Why not reduce it, from the first, to this character? Because exile is considered too mild; because we are still under the dominion of those prejudices, and this false confidence in capital punishment which I have combated. The government thinks there is no safety but in bloodshed; and at the risk of not obtaining this blood, they seek capital condemnation, because ten years of exile are supposed to be nothing.

Ten years of exile nothing! Good God! with what enemies then do you deal? Are these men so powerful, so European, that they will carry wherever they go their fortune and their influence, that they will everywhere find a _point d'appui_ from which to shake your power, and stretch forth at any distance arms long enough to reach you? That Henry III. still feared the Duke de Guise in refuge at Brussels--that Elizabeth was inquieted by Mary Stuart in France--that even in St Helena Bonaparte made his enemies tremble--may be conceived; but almost all the conspirators you prosecute are men without fame, without wealth, unknown beyond their canton, and who are unable to find in foreign countries anything but misery and oblivion. You then arm yourself even with their wretchedness; you say that it will drive them to any hazard, and that they will attempt to return and rear against you new dangers. There are indeed persons who have been sufficiently daring, who have maintained some correspondence, who have published proclamations, and who have even come to the frontiers of the country. But what risk did you run? Did M. Cuquet de Montarlot give you serious cause of alarm? Were the administration, the police, the gendarmes, the custom-houses, the passports, found to be useless against such paltry designs? And if there is really danger in any part of our frontiers, do you believe it to be caused by the presence of a few obscure and impoverished exiles?

I cannot pause upon such an idea. No, assuredly, it is not true that the punishment of exile is illusory; and if it were so, it would be from very different causes than the personal importance of the convicts. Few French men are anything in France: out of France they are nothing.

If power were in the right; if it were true that there does exist a hiatus in the penal code, and that, in desiring to inflict the severest punishments upon political crimes, our law has forgotten to define those that are susceptible of the lighter chastisements, would it be very difficult to find a remedy? It is not a rare thing to see the administration coming to the legislative power to complain of the insufficiency of the penal laws, and to ask new punishments for new offences. {316} In general, I know, the question in such cases is of aggravation; but if it were desired to soften the laws on account of the severity of their pretensions involving a vexatious impunity, are not the same paths open! What obliges power to remain under the necessity of requiring capital punishment for crimes which really do not merit it? What condemns it to put the judges and juries so often to the alternative of pardon or injustice? Is it not permitted to bring less violent indictments involving lighter punishments? Would it not be welcome thus to show itself at once moderate and prudent, caring alike for order and equity! It is possible that our laws in regard of political matters require some reforms of this kind, and that power, in calling for more merciful punishments, would obtain them more easily. I see nothing to prevent this new means from being adopted, of restricting the circle of capital punishment.

Thereby would be gained the important advantage of no longer offering to the country and to Europe the spectacle of such continual accusations of great political crimes brought against obscure and powerless men, and which exhibit authority always ready to arm itself with all its strength against those who are obviously incapable of putting the fate of the state in jeopardy. I do not think that power can have any profit in thus revealing all its maladies, or, if we must call them so, the maladies of the society it governs. The moral effect of such a spectacle is deplorable. It is impossible not to conclude from it, either that the revolutionary fever possesses the people, or that power is unfit to govern. That party men, delivered up to the egotism of frantic passions, delight in repeating that France is full of lepers and brigands; that general disorder is ever on the point of raging; and that the parliamentary opposition is itself but the organ of the most unsocial interests and the blindest fury--all this may be conceived: but the national honour has not been committed to the keeping of these men; they are not held in respect by their country, nor do they watch over its consideration and tranquillity in Europe. But a government must think of these duties; it belongs to the state, and it is commanded to conceal, if such exist, the moral wounds of the country, expecting meanwhile that its good conduct will succeed in curing them. Surely it is not its part to disclose such deformities, that it may avail itself of them for legitimising such or such a system of administration! I wish, however, for neither illusion nor falsehood; for I do not believe that power is bound to flatter society, or to appear ignorant of the vices or danger fermenting in its bosom.

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What good can it expect from exhibiting the country so often troubled and itself so often menaced with such agitations! It is always a melancholy and dangerous situation for a government to live upon the faults and errors of its people, and to seek its strength in the manifestation of the weaknesses past or present of the country. Besides, is not power aware that disorder is contagious, especially after a great crisis, and that it is of the utmost importance to stifle its symptoms in order to remove its temptation? Much is expected from example; but it is forgotten that although there is example in punishment, there is the same in crime, and often more efficacious. Who will doubt that in a country where theft is rare, the very rarity would more powerfully contend with the temptation than would elsewhere the severest chastisements of the thieves? How can so evident an analogy be mistaken? A thousand times has it been observed: we have seen murder call forth murder, incendiaries produce incendiaries: the perverse dispositions of men reveal themselves when called upon; and when once set forth on their course, the rigour of the law must long be exercised against them before they stop. This peril is greater in political crimes than in any other; for there the guilty are more liable to self-deception, and excite in the public, by whom they are surrounded, much less contempt and aversion. What madness, then, in power to hold up those continual provocations to such crimes, which spring from the parade of political prosecutions! Truly one cannot admire too much its inconsistency. The publicity of judicial debates not only incommodes, but terrifies it; and it tries to get rid of the inconvenience by concealing its incomparable advantages. Such publicity, it tells us, reveals the temptations as well as the terrors of crime; yet it takes no care to make this spectacle rare, to refrain till the last extremity from opening a school the lessons of which it holds in such dread. How does it not see that, if these were less frequent and less solemn, they would have less power? Their solemnity depends much upon the gravity of the punishments in perspective: the public cannot feel the same interest in a process which gives but a few years of imprisonment, as if the question were of a life. If power knew how to read the souls of the audience in such a debate; if every thought, every emotion which it raises were developed before its eyes, it would itself be troubled, and would assuredly doubt whether its expected profit were not an illusion. But, blind and unsteady, it is ignorant of this: it is not aware that every proceeding, every word of the politically accused whom it urges on to the scaffold, becomes the subject of the most animated conversations and the boldest commentaries, and that the slightest particular of his fate occasions the most lively and most enduring reflections, even in men who would not themselves have committed his imputed crime, and who would have felt but little interested, if the terrible destiny which weighs upon him had not stirred up from the bottom of their hearts every element of pity and sympathy. Such is the effect of political prosecutions which lead to the punishment of death: an effect mysterious in its extent, but infallible, and which baffles in this case the hopes of power, although power knows not how much what its supposed gains have cost.

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I might go much farther: consequences present themselves in crowds, and all proclaim that the commonest prudence, the merest personal interest of power, counsels it to lower the rate of its political accusations, to diminish their number, and to make use of every means at its disposal to frustrate conspiracies without prosecuting them; in fine, to employ very rarely the punishment of death--as rarely as it is attended by true justice and true necessity. Observe what an employment a wise and skilful administration might make of its influence; observe how, without disarming itself, and without interference with the laws, it might introduce into government practical reforms conformable to the actual state of society, to the instinct of morals, and to the real interests of power. It is for such purposes that it is allowed, even here, that measure of the arbitrary always inseparable from the course of human affairs. In vain it would deny that it possesses and is able to use such a faculty. Power is full of contradictions. When incommoded by the laws, it claims arbitrary authority; when responsibility weighs upon it, it pretends to be merely the executive agent. But these sophisms deceive no one; truth easily compasses them; and when political processes multiply beyond measure, and capital punishment is continually invoked, it will be power, and not the laws, that will suffer. I have shown how, either before the prosecutions or by their direction, the legal domain of punishment might be restricted. Let us now see what influence might be exercised after judgment has been passed.