Part 11

“Monsieur,” said my good master, “it is less innocent to make war than to go to Ramponneau’s in a lace head-dress. But justice gives to every one what is his, according to the rules of this game played by man, which is the wickedest, the most absurd, and the least amusing of all games. And ’tis our misfortune that every man is obliged to take a hand in it.”

“It is necessary,” said the little official.

“Laws are also of use,” said my good master. “But they are not just and can never be so, for the judge assures to his fellow men the enjoyment of the goods that belong to them, without distinction between the beneficial and the hurtful: this distinction is not found in the rules of the game, but in the book of Divine justice only, wherein no one may read. Do you know the story of the angel and the anchorite? An angel came down to earth with the face of a man and the dress of a pilgrim; making his way through Egypt. He knocked, at eventide, at the door of a good anchorite, who, taking him for a traveller, gave him supper, and wine from a golden cup. Then he made him lie down on his bed whilst he laid himself on the ground on some handfuls of maize-straw. While he slept his celestial guest rose up, took the cup out of which he had drunk, and, hiding it under his cloak, fled away. He acted thus, not meaning any ill-will towards the good hermit, but, on the contrary, in the interest of the host who had given him such a charitable welcome. For he knew that this cup would have been the undoing of the holy man, who had put his heart into its keeping, whereas God desires us to love none but Him and does not brook that a man, devoted to religion, should attach himself to the things of this world. The angel who had his share of Divine wisdom, distinguished between goods that are good and goods that are not. Judges do not make this distinction. Who knows but what Madame Josse may not lose her soul along with the lappets of lace her servant took, and which the judges have given back?”

“In the meanwhile,” said the little official, rubbing his hands, “there is now a hussy the less in this world.”

He shook the crumbs from his coat, bowed to those present, and went off jauntily.

XXI

JUSTICE (_continued_)

My good master, turning to me, continued in this manner:

“I only related the story of the angel and the hermit to show the abyss which separates the temporal from the spiritual. Now it is only in things temporal that human justice is exercised, and it is on a low plane where high principles are not in favour. The cruellest offence that could be possibly be done our Lord Jesus Christ is to place His image in the courts of law, where judges pardon Pharisees who crucified Him, and condemn the Magdalene whom He raised up with His Divine hands. What does He—the Just One—among these men, who are unable to show themselves just, even should they wish to, because their melancholy duty is to consider the actions of their fellows, not for what they are in their essence, but merely from the point of view of the social interest; that is to say, on account of this mass of egoism, avarice, error, and abuse which go to the making of cities, and of which they are the purblind guardians. In weighing a fault they add to it the weight of fear or anger it inspired in the cowardly public. And all this is written in their book in such wise that the ancient reading and dead letter stand in the stead of intelligence, heart, and a living soul. And all these regulations, some of which go back to the infamous time of Byzantium and Theodora, agree on this one point only, that all must be perpetuated—virtues and vices alike, in a society which has no desire for change. A fault, in itself, is of so little account in the eyes of the law, and the surrounding circumstances are so considerable, that the selfsame act allowable in one case becomes unpardonable in another, as is shown in the instance of a slap in the face, which, given by one man to another appears simply, in the case of a bourgeois, the effect of an irascible temper, but, for a soldier, becomes a crime punishable by death. This barbarity, which still exists, will be our shame in centuries to come. We reck little of it, but one day they will ask each other what sort of savages we can have been to send a man to his death for a generous warmth of blood springing from his heart when he is bound by law to suffer the perils of war and the miseries of barrack-life. And it is clear that, if there were such a thing as justice, we should not have two codes, one military, the other civil. This military justice, whose results one sees daily, is atrociously cruel; and men, if they ever establish law and order, will never believe that formerly, in times of peace, courts-martial avenged the majesty of corporals and sergeants by the death of a man. They will not believe that unfortunate beings were ordered to be shot for the crime of desertion before the enemy, in an expedition where the government of France itself did not recognise a state of war. What is to be wondered at is that such atrocities are committed by Christian people who do honour to St. Sebastian, a mutinous soldier; and to those martyrs of the Theban legion, whose sole glory is having, in a former age, incurred the severity of courts-martial in refusing to fight against the Bagaudes. But enough of this, let us talk no more of the justice of these gentlemen of the sword, who will perish one day according to the prophecy of the Son of God; let us return to our civil magistrates.

“Judges search not the reins, neither do they read the heart of man, and their justest justice is rude and superficial. All the more then must they cling to this coarse skin of the law on which the codes are inscribed. They are men—that is to say weak and corruptible, gentle to the strong, and pitiless to the weak. They sanction, by their judgments, the cruellest social iniquities, and it is difficult to distinguish, in this partiality, what comes from their personal baseness from what is imposed on them by their duty to their profession; which duty is, in reality, to uphold the State in what is evil as well as in what is good; to see that public morality remains unaltered, whether excellent or detestable; and to assure the rights of citizens along with the tyrannical desires of the prince, to say nothing of the ridiculous and cruel superstitions which find an inviolable shelter under the lilies of France.

“The most austere magistrate may be brought, by his integrity itself, to decrees as revolting, and perhaps even more inhuman, than those of one who fails in his duty, and I do not know myself, which of the two I should dread the most, the judge who has made a soul for himself out of the text of the law, or he who makes use of a remnant of sentiment to twist the text. The one would sacrifice me to his interests or his passions, the other would immolate me coldly for the written word.

“Again, we must notice that the magistrate is the defender, through his office, not of new prejudices to which we are all more or less submissive, but of old prejudices which are preserved in our laws while they are fading from our minds and our manners. And there is no one of a thinking and liberal turn of mind who does not feel how much of the barbarous there is in law, whereas the judge has not the right to feel this.

“But I am speaking as if laws, clumsy and barbarous as they are, were at least clear and precise. But much is necessary for them to become so. The ‘gramarye’ of a wizard would be easy to understand compared with many of the articles in our codes and case-law. This difficulty of interpretation has greatly contributed to the establishing of divers degrees of jurisdiction, and we admit that what the manorial court has not understood the Parliamentary gentlemen will make clear. It is expecting a great deal from five men in red robes and square caps, who even after having recited the _Veni Creator_ are still subject to error; and it is better to acknowledge that the highest court judges without further appeal, for the sole reason, that the others were exhausted before recourse was had to this. The prince is himself of this opinion, for he has a judgment-seat[16] above the Parliament.”

FOOTNOTES:

[16] The institution styled _lit de justice_, bed of justice.

XXII

JUSTICE (_concluded_)

My good master looked sorrowfully at the flowing water, an image of this life, where all things pass and nothing changes. He pondered for some time and then continued in a low voice:

“That point is of itself, my son, an insurmountable perplexity to me, that it is needful that justice should come from judges. It is clear that they are interested in finding guilty the man whom they at first suspected. _Esprit de corps_, so strong among them, pushes them to it, and so you may see throughout their procedure how they brush aside the defence as importunate, and only allow it a hearing when the prosecution has donned its arms and composed its countenance, and has, in fact, contrived to assume the air of the Goddess of Wisdom. By professional feeling they are inclined to see guilt in every accused person, and their zeal appears so alarming to certain European nations that, in important cases, they give them the help of twelve men, drawn by lot. Whereby, it appears, blind chance is a better guarantee of the life and liberty of the accused than can be the enlightened conscience of a judge. It is true, however, that these bourgeois magistrates, drawn by lot, are kept out of the affair, of which they see but the outside pomp and show. And it is also true that, ignorant of the law, they are not called upon to apply it, but to decide merely, in one word, whether it is a case for applying it. It is said that this kind of assize results sometimes in absurdities, but that the nations who have instituted it are attached to it as a kind of very precious safeguard. I willingly believe that. And I understand their accepting decrees given in such fashion, which may be inept or cruel, but at least whose absurdity and barbarity cannot be imputed to one person, so to speak. Iniquity seems bearable when it is incoherent enough to appear involuntary.

“The little official of a moment ago, who had such a feeling for justice, suspected me of taking the side of thieves and assassins. On the contrary, I disapprove so strongly of theft and murder that I cannot endure even the authorised copy of them by the law, and it is painful to me to observe that judges have found no better way to punish rogues and homicides than by imitating them; for in truth, Tournebroche my son, what is fine or execution, save theft and murder, perpetrated with majestic punctiliousness? And do you not see that, notwithstanding all its splendour, our justice only attains to the shameful revenge of evil for evil, misery for misery; and to the doubling of crimes and sins for the sake of equilibrium and symmetry? It is possible, in the carrying out of this duty, to exercise a certain probity and disinterestedness. One may show oneself a l’Hospital as well as a Jeffreys, and for my part I know a magistrate who is an honest fellow enough. But to return to the principle of the thing, I have wanted to show the true character of an institution which the pride of the judges and the terror of the people, vying with each other, have clothed in borrowed majesty. I have wanted to show the humble origin of these codes they wish to make august, and which are in reality but an odd heap of expedients.

“Alas! laws emanate from man; a poor and miserable origin. They are mostly born of occasion. Ignorance, superstition, the pride of princes, the interests of the legislator, caprice, fantasy—these are the sources of the great body of the law, which becomes worthy of veneration when it is no longer intelligible. This obscurity that envelops it, thickened by the commentators, gives it the majesty of the oracles of old. I hear on all sides, and I read in every paper, that nowadays we make laws fitting for the circumstance and the occasion. That is the view of the short-sighted, who fail to see that it is but following an immemorial custom, and that in all times laws have resulted from some chance thing. We complain also of the obscurity and contradiction into which legislators continually fall. And we fail to note that their predecessors were equally dense and confused.

“In actual fact, Tournebroche my son, laws are good or bad less by their nature than in the way we use them, and such and such a provision, extremely wicked though it be, does no harm if the judge does not put it into force. Custom is stronger than law. Refinement of manners, gentleness of mind, are the only remedies one can reasonably bring for legal barbarity. For to correct laws by laws is to take a lengthy and uncertain road. Centuries alone undo the work of centuries. There is little hope that a French Numa will meet one day in the forest of Compiègne, or among the rocks of Fontainebleau, with another nymph Egeria, who shall dictate wise laws to him.”

He gazed for long on the hills which showed blue on the horizon. His air was grave and sad. Then, laying his hand gently on my shoulder, he spoke to me in accents so profound that I was touched to the depths of my soul. He said:

“Tournebroche, my son, you see me, all at once, wavering and embarrassed, stammering and stupid, at the mere notion of correcting what I find detestable. Do not think this timidity of mind. Nothing may give pause to the audacity of my thought. But note well, my son, what I now say to you. Truths, detected by the intelligence, will for ever remain sterile. The heart alone can fertilise its dreams. It pours the water of life on all it loves. Seeds of good are sown in the world by the feelings. Reason has no such virtue. And I confess that up to now I have been too reasonable in my criticism of laws and manners. And so this judgment will fall without fruit, and wither as a tree bitten by April frosts. To help mankind one must throw aside all reason as an encumbrance, and rise on the wings of enthusiasm. So long as we reason we shall never soar.”

Transcriber’s Note:

Inconsistent hyphenation and spelling in the original document have been preserved. Obvious typographical errors have been corrected.

Italic text is denoted by _underscores_.