The Privilege Of Mercy.
I meet here with prejudices of another kind, as unreasonable in
my opinion, but more respectable, inasmuch as they are probably
more disinterested and sincere. Some persons suppose that the
privilege of mercy is a right purely royal, with the exercise of
which the ministry has nothing to do, and of which the king alone
disposes, with reference to nothing more than personal clemency
or equity, and without any ministerial responsibility being
attached to it, or making it a part of the enginery of
government. This was likewise the opinion of the Constituent
Assembly; and what resulted from it? That, in the constitution of
1791, the privilege of mercy was suppressed.
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That this was a great error, none is more convinced than I; but
the error was consequent on the idea which still dominated in the
minds of men. Under the constitutional regime, where the
inviolability of the monarch is founded upon the responsibility
of ministers, no power of action would belong to him, and no act
could emanate from him unaccompanied by this responsibility.
Whence, otherwise, could the royal inviolability derive its
meaning, or, in other words, its guarantee?
The Constituent Assembly was aware of this necessity; and yet,
from the influence of old habits, the privilege of mercy was
still considered as a right purely personal and irresponsible in
its nature. And they came to the conclusion that it should not
continue.
It is now re-established, and very properly so, like many other
rights of which the sudden revolution had stripped the royal
power; but at the same time, like all these rights, it has
reentered the dominion of the principle which is the permanent
and tutelary condition of this power. The king, acting by advice,
and inviolable in everything, rules under the countersign of a
responsible minister. Let those who still doubt on this point at
least examine it. They have already abandoned two similar
opinions: they said that the right of dissolving the Chamber of
Deputies, and that of creating peers, were in like manner
personal to the king, free from all ministerial responsibility.
But in 1816 and 1819, the king openly exercised both by the
advice of his ministers. Such was the power of facts, that it
became necessary to pay homage to the truth of principles, and
recognise a responsibility which appeared to flow from these acts
of government. The most violent, as well as the most enlightened
members of the party now in power, have exclaimed against the
ministry to which they imputed them; and which, I think, would no
more hesitate now than it did then. The privilege of mercy is not
of another nature, for it is not placed out of the constitutional
pale, and perhaps occupies a position not less important. It is
forming too mean an idea of it to regard it as merely intended to
illustrate the goodness of the prince, and to call down blessings
upon his name. It may produce this effect, and that is one of its
advantages; but it is founded upon more extended causes and more
general interests. In fact it is a portion of the right of
justice, a remnant of the times when princes, exercising judgment
themselves, could, according to circumstances, either condemn or
absolve. In the progress of social order, the right of judging
has departed from the prince, but he has retained the right of
pardoning. What a great example of that mysterious Wisdom which
presides over the development of civilisation, and which,
unconsciously to man, calls forth from the bosom of facts
institutions and customs conformable to those eternal truths, the
laws of which human wisdom alone could never have discovered!
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Balanced between the need of justice and the impossibility of
giving up to the capricious or perverse will of man the right of
ruling, society felt first the perils of arbitrary power; and in
order to free itself, established fixed laws and independent
judges, strove against the influence of individual will upon
judgments, and tried to write justice beforehand, and to connect
with it beforehand the judges. A great amelioration has been the
result of these efforts. But truth has not allowed itself to be
seized all at once; and the inevitable nature of things has not
always consented to be seen in the texts of the laws. After
having struggled against the arbitrary principle, it has been
necessary to recur to it; and in the same way that the precision
of legal judgments has been invoked against the imperfections of
men, so the conscience of man has been invoked against the
imperfections of the judgments. Thus the necessity of the
arbitrary principle, indomitable in our weakness, makes itself
felt after its danger; and in default of that infallible judge
who is wanting upon earth, the freedom which the law wished to
subdue in order to rule has now in its turn come to the succour
of the law itself.
Such is the inevitably vicious circle of human affairs. The great
error of the Constituent Assembly, both in its theories and
institutions, was to mistake this fundamental element of our
condition, and suppose that truth, reason, and justice could
belong, fully and perfectly, to certain forms and certain powers,
and that it was thus possible to banish completely the arbitrary
principle: an arrogant attempt, which could only lead to tyranny.
Such an attempt can never succeed, for it is in direct opposition
to the present system of government which the people favour, and
which it was the object of the Constituent Assembly to found. It
is the grand characteristic of the representative government to
accept freely, in many cases, the imperious necessity of the
arbitrary principle, and at once to remedy its defects in
associating it with responsibility. The greater progress we make
in this system, the more shall we be convinced that
responsibility in all its forms, and by the most diverse means,
moral or legal, direct or indirect, is its most essential
character and most powerful spring. A complete and admirable
system, then, it must be, since it recognises at once the
weakness of our nature and respects its dignity. In this system
it is impossible to prevent arbitrary power, however needful its
presence may be, from being suddenly seized upon by
responsibility. If it were otherwise, the entire system would be
falsified. The privilege of mercy would be no privilege at all.
Has the nature of this right been well examined?
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It is the right of suspending, or annihilating the law; it is
that 'dispensing power' which was one of the causes of the
terrible struggle of the English nation and the Stuarts. The
kings of England maintained that it was their privilege to
recognise in particular cases the injustice or imperfection of
certain laws, and so to exempt such or such citizens from them.
The country would never agree to this, and the country was right.
All the laws and all the public rights would have been enervated
by such a privilege. The ministerial responsibility alone could,
in exercising the privilege of mercy, preserve society from that
peril; for if it remains ignorant of one function of power, it
will soon be so of others. The dispensing power of the Stuarts
desired likewise to have the right of exempting the Catholics
from certain penal clauses; but the parliament knew well that, in
policy as in morals, bad principles must be put down, and it
would neither allow itself to be over-ridden nor neutralised.
Where could falsehood elsewhere hide itself? Who does not know
that in the exercise of the privilege of mercy, as in every other
step, the king commonly decides according to the advice of his
ministers, whose duty it is to study the case, and submit to him
the reasons for decision? Who is ignorant that, on every
occasion, the petitions for pardon are addressed to the minister
of justice, and become in his office the object of an
examination, which produces a report to the king, who thereupon
grants or refuses his clemency? This clemency is free, absolutely
free, yet it desires to be enlightened; and if I am not mistaken,
when such petitions are addressed directly to the sovereign, he
himself orders them to be referred to his minister, to the end
that the regular course of administration should be
uninterrupted. In political matters this regularity is still more
scrupulous, for there the severity or clemency may affect the
entire conduct of the ministry, and the general state of the
country. Such affairs are always a subject of serious
deliberation in the council. It matters not whether the
determination which ensues be conformable or not with the advice
of ministers, for if they neither disavow nor fail in carrying it
into execution, it is their own; it belongs to their
responsibility, like all other royal decisions, the secret of
which none knows better than they. They have, then, no right to
declare themselves absolved from the consequences; they have
given their advice, fulfilled their task, and must be answerable.
The mantle of royal inviolability is itself inviolable, and no
one can pretend to cover himself with it.
Is the privilege of mercy thus brought under the common law of
constitutional principles, and fixed in the province of the upper
administration, an engine of government which might be used to
advantage to-day, and if so, what use should be made of it as
regards political crimes?
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To those who would persist in seeing in it merely a means of
extending mercy to individuals, and not a political instrument of
general government, Montesquieu has replied for me:--'Letters of
pardon,' says he, 'are a great instrument of moderate
governments; the power by which a prince may pardon, when
exercised with wisdom, may have admirable effects.'
And can it be otherwise? It is especially for political crimes
that the privilege of mercy seems to be reserved--crimes
frequently of an equivocal nature, to which sincere errors may be
allied, and sentiments worthy of respect; by which society may
not always appear to be threatened; in which the peril--the
principal element of the crime--is wanting; and, in short, in
which want of success acts more efficaciously than chastisement.
In private crimes, pardon supposes error, or at least excessive
severity of judgment: and it may thus have the inconvenience of
shaking the authority of legal justice, or the confidence in the
wisdom of the laws. Too widely used, it would point out vices to
reform in the tribunals or the codes; it would make the royal
clemency a new jurisdiction, a tribunal of equity called upon to
revise all criminal judgments; and offering, neither in the
administrative instruction which preceded the sentences, nor in
their forms, any of the prudent warrants of ordinary tribunals.
In political crimes, none of these inconveniences are to be
dreaded: here pardon implies neither the error of the chief
judges, nor even, in a legal point of view, the immoderate rigour
of their decree. It neither compromises nor shakes their
authority in any way: it simply reveals the intention of the
sovereign of treating with gentleness even those of his subjects
of whom he has to complain: a moral and politic intention, that
has no dispute with the laws, and does not alter their credit,
but addresses itself to a circle of sentiments or ideas
completely foreign to that in which legal justice moves. One may
even presume that, in such a sphere, the habit of clemency, far
from discouraging the severity of jurors or judges, would make
them less timid and more free. The idea is so natural, that the
public has sometimes seemed to believe that a particular
political condemnation had been pronounced only in the prospect
of a pardon to neutralise its rigour. Thus, by an economy of
blood, we might perhaps gain the facility of example; power would
have all the merit of the moderation, and the citizens who, in
the courts of assize, often hesitate, and with good reason, when
it is necessary to condemn a man to the scaffold, would manifest
with less pain their disapprobation of his attempts or his
designs.
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We fear the effects of impunity; we fear that confidence of
courage which supposes moderation to result from weakness or
cowardice. But I have never known any governments taxed with
weakness but those that were really weak; and with regard to
them, I know of none to whom rigour can supply the wanting
strength. It is the most obstinate error of power to take on
every occasion the effect for the cause. Thus, if discontent is
general, it imputes it to the symptoms by which it is manifested.
Since strong governments have been rigorous, it concludes that
every rigorous government must be strong. I have already exposed
this absurd mistake, and I find it here in all its grossness.
Doubtless it is possible that mildness may be allied to weakness,
and malevolence encouraged by it; but it is not from the mildness
the evil comes, but from the weakness--that real weakness which
betrays itself in severity the same as in mercy. I am ashamed to
insist upon these commonplaces of common sense; but what is to be
done? When the error is a vulgar one, it is by vulgar truths it
must be subdued. Besides, what do you call impunity? Is it
banishment, imprisonment, transportation? These are the next
punishments to death, and you may substitute them for it. Amusing
impunity! Do you not see that similar commutations are in
absolute harmony with the present state of morals and the nature
of political dangers? We are no longer in the time of strong and
indomitable passions, which survived suffering and irons, and
were found, after twenty years of impotence and captivity, in all
their energy. Such sentiments belong to those epochs when even
liberty is morose, when life offers few distractions and few
pleasures, when the ideas which occupy the mind of man are few
and simple, and are not of that conflicting nature which confuses
and agitates the soul, drifting at random in the midst of an
advanced civilisation. In our day the prison or banishment takes
men away from a commodious and pleasant existence; and they
regret a thousand enjoyments they knew not in former times, and
receive from punishment much more efficacious warning. Yet they
do not experience in exile or prison those ferocious violences
which formerly irritated them so deeply, rendering them as much
more untractable as they were more miserable. In the present day,
even without liberty, a prisoner's physical sufferings are not
such as to disable him from reflecting on the causes of his
misfortune, recognising his imprudences or errors, calming
perhaps, or at least terrifying himself, and returning one day
into society more softened than enraged. A power, however wanting
in skill, would find, I am sure, in these features of our social
state a thousand means of working upon the condemned enemies
whose lives it had spared. Besides, whose is the necessity for
the blow? Political perils are not immutable; though substantial
now, perhaps in two years they will have disappeared; and the man
who is to-day their instrument, will then have neither the power
nor even the idea of hurting the consolidated government.
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A bandit or an assassin robs or kills on his own account, from
motives purely personal, and without troubling himself as to
whether the disposition of society is favourable, or whether he
will receive from it protection or support. But political crimes
are not so isolated: right or wrong, they are in correspondence
with the condition of the public, from whom they promise
themselves indulgence or even succour; they are to a certain
extent crimes of circumstances, and would not have been
committed, or perhaps conceived, if circumstances had been
different. And wherefore be in such a hurry to kill when the
circumstances may change! The present peril is foreseen; the
condemned is in the hands of power, which, in sparing his life,
may yet retain him in impotence while the danger continues. The
danger past, of what use is severity? Is it so difficult to keep
some mercy in reserve for days of security? If you have not this
foresight, but hasten to irrecoverable steps, know you what will
happen? That the trouble and danger will go on increasing, and
you will be demanded an account of your needless severity. But if
fortune is more favourable, and danger departs, and the storm
subsides--then, when safety has returned, and society sees no
more in a pressing peril the motive of your rigour, it will
forget peril and motive together: it will remember only your
bloodthirstyness; and governed by that instinct of truth which
does not permit us to attribute to the death of a few men the
return of peace and order, it will say that you have sacrificed
to your fear or your vengeance those whom you might have spared
without danger.
It would be right to think thus; and the fact which is revealed
in this sentiment is the political uselessness of capital
punishment. It must be seen from a distance, in order to be
judged properly as to its effects; and more than once,
governments have had to regret having lost the opportunity
offered to them by the privilege of mercy. Hurried away by the
passions or perils of the moment to give it full sweep, they have
afterwards found themselves weighed down by obligations and
recollections, the burden of which they deplored. In the midst of
the mobility of human affairs, it is a great fault in power to
bind itself by irrecoverable acts. A day may come when the blood
which it shed, apparently forgotten, will bubble up between it
and the men it has most need of. Formerly, the brutality of
manners and power of personal interests were such, that obstacles
like this gave way easily before new circumstances; but in the
present day, notwithstanding the unchangeable levity of our
nature, they are more real and more difficult to surmount, for
public opinion lends them a force which they could not always
derive from the constancy of individual sentiments. The prudent
use of the privilege of mercy disperses them, as it were,
beforehand, and leaves power a freedom of movement, which it is
of great importance for it to preserve. In what consists wisdom,
if not in foresight! Let governments be possessed of that, and I
doubt if they will frequently make use of capital punishment.
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Here is the last consideration. I have hesitated to present it,
for I would not be accused of advising cowardice; and yet I will
set it down--for it is true. Formerly the depositaries of power,
ministers or others, risked in political struggles their life as
well as position. It was the necessity of the time that such
combats should always have a revolutionary character, and that no
one could retire from them vanquished to find security in repose.
The constitutional system and public manners have changed this
gloomy condition of public men; they may now fall without danger,
and even re-enter the lists for the recovery of their power. The
people are better governed, and the governors more safe. May
nothing alter this new aspect of political life! Ministers would
deceive themselves did they think to shake off the responsibility
which rests upon them by disputing its limits. When facts become
serious, and the gravest interests are compromised, then
subtilties lose their empire; everything is decided with
simplicity, and they answer in their whole conduct for all the
counsels they have given or omitted. I know that such a prospect,
presenting itself to the eyes of a public man, should not induce
him to relax in his duties: it should rather teach him the
obligation to look well about him; not to believe lightly in
pretended necessities, or to satisfy himself in the days of his
power with such frivolous excuses as have no value when those
days are past; to reduce as far as in him lies that circle of
political death-punishment already so happily contracted; and, in
short, to employ to this end, in his function of counsellor to
the throne, the whole force which his responsibility lends him.