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?
{314}
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.
{315}
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.
{317}
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.
{318}
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.