Chapter VI.

Justice.

Need I say that if there were a justice anterior and superior to legal justice, there would be no legal justice. Montesquieu has made this principal truth the principal idea of his book: 'To say that there is nothing just or unjust but what positive laws order or forbid, is to say that rays were not regular before the circle had been traced.' It would be strange if natural justice, in virtue of which legal justice exists, should cease to be from the moment the latter was written. But it does not cease to be, or even to speak; it has in principle its general conditions, and on each occasion its particular will, which legal justice is bound to carry out.

I shall mention presently the progress of a struggle between the two; but we must first inquire what true justice is, before supposing it to fail in obtaining what it desires. Morally speaking, there are two parts in every action--the morality of the act itself, and the morality of the agent. The morality of the act depends on its conformity with the eternal laws of truth, reason, and morality, which no man knows fully, but only aspires to know, judging according to the degree of that knowledge of the merits or demerits of human actions. The morality of the agent resides in the intention--that is to say, in the idea which he has himself conceived of the morality of the action--and in the purity of the motives which carry him on to its accomplishment. When these two are at variance, the fact is shown in the daily conduct and common language of men. 'He has done ill,' they say, 'but he intended to do well;' that is, the action may be absolutely culpable, and yet the agent personally innocent.

But will Divine justice consider only the intention? or will it punish error? I dare not decide. Error is often caused by vanity, passion, the preoccupations of personal interest, or of pride--that is to say, by what is wrong. How does this wrong affect individual unconsciousness of error? It is seldom given to men to decide the point; God alone can see clearly into the depths of the conscience. But this is certain, that the judgment of man can neither absolve the guilt of the action because of the intention of the agent, nor condemn the agent without taking the intention into account. Thus our nature wills it.

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Unable to solve such a problem, legal justice is obliged to act as if it did not exist. It declares certain actions to be culpable, and punishes those who commit them, without troubling itself to inquire whether they are guilty in intention or not. And in this there is no reproach to be cast on legal justice; for the effects of bad actions are in themselves so fatal to society, that it cannot give up to individual opinion the right of deciding upon them: it declares their nature, and takes care that its laws are observed.

But there are here two remarks to be made. First, that society thus absolutely incriminating certain actions, is bound to be in the right in its condemnations; and second, that although the laws cannot be rendered subordinate to the intention of individuals, they cannot abolish this element of man's judgment; and when, therefore, in their application they have the misfortune to punish an intention evidently pure, the natural sentiment of justice is offended. Legal justice, then, runs a double risk--that of erring in its general incriminations; and that of encountering, in the application of its rules, particular facts in which a circumstance occurs it has not taken into account, and which, nevertheless, will act powerfully upon the mind of man--honesty of intention. If there is a species of action in which this double obstacle in the way of legal justice is most real and apparent, certainly it is political crime. I have already said that the character of such an offence is variable and even conditional, and that, moreover, it is difficult to decide upon and appreciate it justly. Who does not know, too, that error is nowhere more easy, and that the purest intentions are here often associated with the most immoral acts! Some persons, struck with these facts, have gone so far as to think that, morally speaking, there are no political offences; that force alone creates them; and that good or bad fortune is the test of their culpability. I do not share in this idea in any degree. It germinates in those unfortunate times when the duties and rights of citizens disappear, or become obscured, so to speak, under the mantle of despotism, or in the storm of revolutions; but the light has not ceased to be because an eclipse has hidden it. The endeavour to change the established government, even if it did not involve any private crime, may unite in the highest degree the two general characters of crime--the immorality of the act, and the wickedness of the intention. It matters little, then, that its end is political; it does not less constitute a true crime, which ought to be punished, and perhaps with justice. Neither insurrections nor conspiracies have the privilege of innocence; and if virtue has often succumbed in its resistance to tyranny, history has no want of criminal conspirators.

What is certain is, that on no occasion is legal justice more exposed to deviate from natural justice, or has more difficulty in identifying itself with it. I leave out of question, as may be seen, everything that corrupts legal justice itself; I do not avail myself of the passions either of power, or of the judges, nor of the facility offered of twisting the laws, nor of the obstacles which the defence of the accused may meet with, notwithstanding the strict observation of forms. {293} Suppose impartiality and liberty everywhere, and yet I say, or rather see, that even then, and through the nature of things, true justice is in danger. The moral merit or demerit of such an action has not that degree of certainty which belongs to private crime: it depends upon an infinity of circumstances, which the foresight of the law cannot reach. The consideration of intention has more power here than anywhere else; for doubt is more easy, motives less directly personal, the causes of illusion more pressing, and the passions perhaps less impure. What will prevent these facts, for they are facts, from acting upon the public mind? Who will hinder it from seeing and taking account of them? The more difficulty the judges have in adapting the laws, the more the citizens, who judge also, will be shocked to see the laws indifferent to reasons which influence their own judgment. The imperfection of legal justice will declare itself in all its extent; and, in fact, what is the imperfection of justice but injustice?

This is felt: power has not been slow in comprehending that, in placing itself thus upon moral ground, in considering actions in their communication with the laws of eternal morality and the intentions of their authors, it would often have great difficulty in defending and proving the legitimacy of its decisions. The attempt has been made to cheat the instinct of men, to elude their disposition, to compare legal with natural justice, and in order to succeed in this, the question has been carried elsewhere. Power has taken up its ground in the social interests and the maintenance of order; it has represented crimes as hurtful rather than culpable; and shunning the absolute justice of punishments, it occupies itself with their utility.

I might say much upon this transposition of the question, but I must hasten towards my end, and shall do nothing more than indicate the error. It is not true that crimes are punished especially as hurtful, nor that the ruling consideration of punishment is its utility. Attempt to condemn and punish as hurtful an act which every one considers innocent, and you will see how much you will revolt the minds of men. Men often believe acts culpable, and punish them as such, when they are not so; but they cannot endure the sight of chastisements descending from a human hand upon actions which they think innocent. Providence alone has the right of treating innocence severely without accounting for its motives. This astonishes and troubles the human mind, which, knowing that it cannot fathom the mystery here, seeks beyond our world for an explanation. But on the earth, and where human beings are the actors, chastisement has no right but over crime. No public or private interest can induce a society, however disorderly, to believe that where there is no crime, the law may still punish to prevent a danger. {294} Moral offence is, then, the fundamental condition of chastisement. Human justice exacts this imperiously before it admits the legitimacy of punishment; and legal justice deceives, when, to free itself from the exigencies of natural justice, it attributes to itself another principle, and another end, and pretends to find them in utility. But it cannot thus escape from its name, which is justice, and become merely a combination, more or less skilful, of means of defence for the profit of such or such an interest. They confine the madman who has taken life, but do not punish him; because, being incapable of reason and responsibility, he is incapable of crime. Let the penal laws, then, not hope to escape, under the pretext of social interest, from being obliged to conform to the rules of natural justice: they will always have to submit to this criterion, whether in their generality or application; and when power judges and punishes, it can neither change the conditions with which the judgments of moral justice are formed, nor deviate from them without causing a universal feeling of the iniquity. That being understood, and legal justice thus brought back to the empire of natural justice, I will admit that social interest is also one of the motives which enter into the discrimination of offences and their punishment. It is not the first, for it would be without value were it not preceded by the moral reality of the offence; but it is the second, for society has the right of condemning and punishing whatever is at once culpable, hurtful, and of a nature to be repressed by the laws. Moral criminality, social dangers, and penal efficacy, are the three conditions of criminal justice, the three characters which ought to be met with in the actions it condemns and the punishments it inflicts.

That is the true ground on which legal justice is established. It participates in our greatness and our misery. It is in relation at once with the sublime nature of man and the infirmity of his condition. It cannot be pure moral justice; but it is obliged to retain its principal characteristic of punishing those only who morally deserve punishment. On this condition it undertakes to repress everything that is hurtful to society; and in this design of which an interest, or, if you please, a terrestrial necessity, is the principle, it meets with another limit, and submits to another condition--that of the efficacy of the means it uses to prevent the evils it fears--or, in other words, the efficacy of written laws and external chastisements.

I arrive now at the question, thus reduced to its true elements, and examine what is, with regard to political crimes, true legal justice, and more especially with regard to capital punishment.

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Let me remark, in the first place, that of the two constituent characters of every offence--the immorality of the act, and the social danger--the more the latter predominates over the former, the more the legitimacy of capital punishment becomes doubtful, and its application cruel. There are some crimes so evident, and so odious, that the instinctive feeling of men calls for the death of the culprits as the only chastisement proportioned to the deed. But a single glance will show that these are not the crimes which can put society in great danger. They outrage natural feelings and moral laws, and show in the criminal a degree of perversity or ferocity which our nature hates to look upon, as if it were insupportable to find to what a point of depravity and dishonour it could attain. Social danger is a complex idea, the fruit of reflection and knowledge, which does not awaken in mankind this spontaneous and violent antipathy. If, in all offences, the two principles of criminality were equally and exactly balanced, the penal laws would have but little trouble. But this is not the case; for offences are, so to speak, diversely composed: in one it is immorality which predominates, in another danger; and according to the relations of these two elements of crime, the punishment must vary, not only for the sake of justice, but because the public feeling expects it, and will not see justice in the punishment on any other condition. But capital punishment being the gravest of all punishments, and much the more so now when human life is more generally respected, it is naturally adapted only to crimes of such wickedness as would perhaps provoke its infliction even if it were banished from the laws. Wherever social peril is the principal element of the offence, capital punishment is no longer founded upon our moral nature; it is excessive both in justice and in public opinion.

Every one admits that, generally speaking, political crimes are in this position. They may be detestable, but, in general, they are dangerous; and it is in this latter character that the law punishes them with severity. Let me inquire if capital punishment is a necessary, or even useful severity. It is with justice I occupy myself at this moment. But it is not in the power of any law to contrive that, in the opinion of men, the justice of a punishment should be estimated chiefly according to the moral gravity of the offence; and this measure of justice is the more natural, that the punishment strikes most severely in the person of the culprit who submits to it. The justice which deals death because of social peril, when the moral criminality is feeble or doubtful, carries injustice in the face of it; and if it happened, as it sometimes does happen in political affairs, that the intention of the accused was pure, or at least excusable--that he was mistaken in the moral character of his action, and that his error proceeded from disinterested illusions--then capital punishment would assume at once the appearance of iniquity. It would be no longer a chastisement, but the sacrifice of a human victim to terrestrial and mortal gods.

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Formerly it had its excuse, I will not say in the violence of political passions, for this violence is, and will be still greater, but in their personality. Political struggles, like war, were formerly struggles, man to man, between rivals pretty nearly equal, and life was bound to the fate of power. Capital punishment, then, appeared as a species of law of retaliation, analogous not only to the state of ideas, but of realities. Danger was as near and personal as in battle. This is so true, that the greater part of the laws of barbarism--so minute in matters of private crime, so attentive in regulating the retribution according to the nature and amount of the offence--make no mention of capital punishment for a political cause. Justice had no pretence for entering here: it was of war the question was, and the danger was so visible and pressing, that the right of retaliation was too obvious to require to be written in the laws. Later, it was written, and even subjected to certain forms; but it was still retaliation, for political crimes never menaced power without first menacing the lives of men, and political perils were always preceded by personal ones. Power had thus all the rights of personal defence; but at present, the conditions of peril, as of power, are changed. The king of France has no longer enemies in the neighbouring chateaux waiting in ambush to seize his person, imprison, and perhaps kill him, and that even without the hope of reigning in his place, but merely from avarice, from vengeance, for the recovery of a domain, or for a right which he disputed, or had ravished from them. The greater number of conspiracies are vague, and a thousand barriers rise up between a government and its enemies. Instead of an individual and certain danger, the question is commonly of a complicated and social danger, formed of confused projects and means of action frequently ridiculous. How can it be thought that crimes of this kind call for capital punishment as clearly or loudly as they formerly did? Such culprits, when preparing the crime, placed themselves, as it were, at the foot of the scaffold erected by their own hands. Now this scaffold is raised laboriously, and the culprits must almost always be dragged to it from a distance, and made to mount before the eyes of a public who have seen neither distantly nor at hand either the crime or the danger. I do not believe that the condition of power is worse than it was; but if it is better, it is not power alone that should profit by the favourable change, but likewise justice. Now, justice very rarely authorises the employment of capital punishment against those crimes in which there is more appearance of social danger than moral wickedness. What will be the case if we sound the peril itself deeply? This is the motive of the punishment, the fundamental element of the criminality; and this element should at least be powerful, and the motive have the extent and reality which are attributed to it.

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I will presently enter in a direct manner into this question; and I will therefore remark upon it here only in passing, and with regard to its effect on the justice of capital punishment. Observe, the question is of a social danger. I myself think with the laws. When public order is menaced, and the general forms of government or the persons who represent them are attacked, it is society which is in danger. A government must be bad, indeed, and no one can say _how_ bad, before society prefers the terrible chance of distraction to even the slightest hope of reform. There are doings and secrets hidden by Providence under a veil which it alone can raise.

This admitted, I still insist and repeat that the question is of social danger. In order that society may suppose the peril to justify capital punishment, that peril must be its own, and in the danger of power it must see its own danger. However wearisome the words may have become, it is still necessary to repeat, that power exists only for society, and that all its rights correspond with its mission.

But is it quite certain that society is really so often in danger as power believes it to be? Is it quite certain that the dangers which power dreads are indeed those which it is the object of the penal laws to prevent? Is it not possible that they are neither so great, nor perhaps at all the same, as those which have appeared serious and frequent enough between power and society to render death a legitimate punishment?

I affirm nothing, for nothing can here be affirmed generally and beforehand; but I consider that danger in its special nature is the principal element of criminality, and I recognise in it a double character. It is not certain that it does exist, nor that it is really the social danger against which the laws are directed.

The same differences which separate political from private crimes in their relations with morality, distinguish them still in their relations with the public interest. That assassination and theft are always equally hurtful to society, and morally culpable, is never doubted, and remains true whatever may be the faults or merits of the government. There is no relation between the conduct of power and the danger occurring to society from crimes of this kind. Under a tyranny, as under the most liberal regime, the same danger exists in all its extent and intensity.

In the case of political crimes, on the contrary, danger--I mean social danger--varies according to the conduct of power, and the advantages derived from it by society. Certainly, in 1802, France was in more danger from the fall of Bonaparte than in 1814; for in 1802 Bonaparte served France faithfully, both at home and abroad, while in 1814 he compromised and oppressed her. I attach no value to a permanent and blind hostility to power; but power in its turn has no right to pretend that it will be always found equally good and equally necessary, and that its dangers are always alike dangerous to society.

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Thus in the very nature of that social danger, in the name of which they would take life, there is one cause of uncertainty. Here is a second cause. In private crimes, as I have already said, at the same time that the wicked and hurtful character of the offence is indubitable, its reality is certain. A murder or robbery has been committed, and a search is made for the criminal. It is certain that an offence has been committed against morality, and society put in danger, and upon whom will the punishment fall? In a political matter, the reality even of the crime is, as we have seen, often called in question; and the social danger is likewise a matter of dispute. There are men accused of conspiracy, and in order to their conviction, it must be proved that there has been a conspiracy, or, in other words, that society has been put in danger; and if the conspiracy is not proved, neither will the danger be so, at least in the eyes of the law. While in other cases the wickedness, danger, and reality of the crime are positive data, from which the accusation sets out, here the accusation goes first, and may be proceeded upon without there being a legal crime, a social peril, or a wicked act at all.

I proceed always, and it is impossible to do otherwise, upon the hypothesis, that the danger of society and that of power is one and the same. It is the only legitimate and the only legal hypothesis. It is fully established when the power is good; and it is long before it can become so bad that society may reasonably desire its fall; and in the immense interval which separates these two terms of its career, it is not to be doubted that power has a right to make use, for its own preservation, of the laws instituted for preserving the public order in its own person. But if power forfeits this right only through greater crimes, or more absurd errors, its faults before this fatal epoch do not cease to have an influence; they have the infallible effect of weakening the feeling of society as to the danger of power and its own, and thus they introduce into legal justice, especially when severe, a measure, or at least an appearance, of iniquity. When governments separate themselves from society, and feel society retiring from them, they flatter themselves they can bring it back by severity against its enemies. They are mistaken. Society judges of the severity by the opinion it has of its own danger, not by that which it forms of theirs. If only moderate punishments wore employed, it would perhaps consider them equitable; for, though discontented with power, society does not desire its destruction, or think that it has lost every right of using the laws in its defence. But if government makes use of the laws, as if society were in full harmony with it, it awakens and fortifies the feeling of disagreement, deepens the abyss which already separates them, and allows the time to pass for filling it up by other means.

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Such are the conditions to which legal justice is subjected in political affairs; such are the facts in the midst of which it works, without power to escape from their bondage. It has to do with crimes whose moral perversity is sometimes equivocal, in which the intention may be excusable, and which cause more danger than aversion. It must rather consider, therefore, the danger than the immorality, and desire the prevention of perils which are not always equal or certain, nor perhaps menace alike power and society--thus causing society to doubt the equity of punishments, and giving power an air of egotism and isolation fatal, especially in our days, to its strength. When legal justice is called upon to pronounce judgment on such offences, it finds itself before a natural justice which takes account of every thought, weighs every fact, and speaks so loudly, that it must be faithfully obeyed. What is in such circumstances the character of capital punishment? Everything that could otherwise confer upon it a certain degree of legitimacy fails to do so here, not only in the eyes of attentive reason, but of the spontaneous instinct of men; and at the same time it meets with everything that can make it unjust, suspected, and odious; it is directed against danger and crime, but without the assurance of striking at a legitimate danger or the true criminal; and in order to arrive at justice, it runs a thousand chances of committing iniquity. And let not power aver that these chances are but little apparent; let it not flatter itself that the public is not aware of them, and show itself, in dealing justice, less exigent than truth demands. The public knows much of its own rights, and of the rights of true justice; and what it is still ignorant of, it will be taught. All such questions will be brought forward and debated over and over again. Men will learn to understand them, and they will insist upon the rights they discover themselves to possess. Truth will be aided in its entrance into their minds by their interests, sentiments, and even passions; and in proportion as it gains ground, capital punishment, flying before justice, will be driven for refuge to the last asylum where it can defend itself--the necessities, if not of society, at least of power--and thither we must follow it.

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