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.
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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.
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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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