offence, _politically an offence of rebellion_, by council, contrivance,
persuasion, or compulsion, for none properly a _military offence of
rebellion_, or anything done by open hostility in the field, should any
man at all be called in question; because such seems to be the proper
and natural death of civil dissensions. The offences of war are
obliterated by peace.
Another class will of course be included in the indemnity,--namely, all
those who by their activity in restoring lawful government shall
obliterate their offences. The offence previously known, the acceptance
of service is a pardon for crimes. I fear that this class of men will
not be very numerous.
So far as to indemnity. But where are the objects of justice, and of
example, and of future security to the public peace? They are naturally
pointed out, not by their having outraged political and civil laws, nor
their having rebelled against the state as a state, but by their having
rebelled against the law of Nature and outraged man as man. In this
list, all the regicides in general, all those who laid sacrilegious
hands on the king, who, without anything in their own rebellious mission
to the Convention to justify them, brought him to his trial and
unanimously voted him guilty,--all those who had a share in the cruel
murder of the queen, and the detestable proceedings with regard to the
young king and the unhappy princesses,--all those who committed
cold-blooded murder anywhere, and particularly in their revolutionary
tribunals, where every idea of natural justice and of their own declared
rights of man have been trod under foot with the most insolent
mockery,--all men concerned in the burning and demolition of houses or
churches, with audacious and marked acts of sacrilege and scorn offered
to religion,--in general, all the leaders of Jacobin clubs,--not one of
these should escape a punishment suitable to the nature, quality, and
degree of their offence, by a steady, but a measured justice.
In the first place, no man ought to be subject to any penalty, from the
highest to the lowest, but by a trial according to the course of law,
carried on with all that caution and deliberation which has been used in
the best times and precedents of the French jurisprudence, the criminal
law of which country, faulty to be sure in some particulars, was highly
laudable and tender of the lives of men. In restoring order and justice,
everything like retaliation ought to be religiously avoided; and an
example ought to be set of a total alienation from the Jacobin
proceedings in their accursed revolutionary tribunals. Everything like
lumping men in masses, and of forming tables of proscription, ought to
be avoided.
In all these punishments, anything which can be alleged in mitigation of
the offence should be fully considered. Mercy is not a thing opposed to
justice. It is an essential part of it,--as necessary in criminal cases
as in civil affairs equity is to law. It is only for the Jacobins never
to pardon. They have not done it in a single instance. A council of
mercy ought therefore to be appointed, with powers to report on each
case, to soften the penalty, or entirely to remit it, according to
circumstances.
With these precautions, the very first foundation of settlement must be
to call to a strict account those bloody and merciless offenders.
Without it, government cannot stand a year. People little consider the
utter impossibility of getting those who, having emerged from very low,
some from the lowest classes of society, have exercised a power so high,
and with such unrelenting and bloody a rage, quietly to fall back into
their old ranks, and become humble, peaceable, laborious, and useful
members of society. It never can be. On the other hand, is it to be
believed that any worthy and virtuous subject, restored to the ruins of
his house, will with patience see the cold-blooded murderer of his
father, mother, wife, or children, or perhaps all of these relations,
(such things have been,) nose him in his own village, and insult him
with the riches acquired from the plunder of his goods, ready again to
head a Jacobin faction to attack his life? He is unworthy of the name of
man who would suffer it. It is unworthy of the name of a government,
which, taking justice out of the private hand, will not exercise it for
the injured by the public arm.
I know it sounds plausible, and is readily adopted by those who have
little sympathy with the sufferings of others, to wish to jumble the
innocent and guilty into one mass by a general indemnity. This cruel
indifference dignifies itself with the name of humanity.
It is extraordinary, that, as the wicked arts of this regicide and
tyrannous faction increase in number, variety, and atrocity, the desire
of punishing them becomes more and more faint, and the talk of an
indemnity towards them every day stronger and stronger. Our ideas of
justice appear to be fairly conquered and overpowered by guilt, when it
is grown gigantic. It is not the point of view in which we are in the
habit of viewing guilt. The crimes we every day punish are really below
the penalties we inflict. The criminals are obscure and feeble. This is
the view in which we see ordinary crimes and criminals. But when guilt
is seen, though but for a time, to be furnished with the arms and to be
invested with the robes of power, it seems to assume another nature, and
to get, as it were, out of our jurisdiction. This I fear is the case
with many. But there is another cause full as powerful towards this
security to enormous guilt,--the desire which possesses people who have
once obtained power to enjoy it at their ease. It is not humanity, but
laziness and inertness of mind, which produces the desire of this kind
of indemnities. This description of men love general and short methods.
If they punish, they make a promiscuous massacre; if they spare, they
make a general act of oblivion. This is a want of disposition to proceed
laboriously according to the cases, and according to the rules and
principles of justice on each case: a want of disposition to assort
criminals, to discriminate the degrees and modes of guilt, to separate
accomplices from principals, leaders from followers, seducers from the
seduced, and then, by following the same principles in the same detail,
to class punishments, and to fit them to the nature and kind of the
delinquency. If that were once attempted, we should soon see that the
task was neither infinite nor the execution cruel. There would be
deaths, but, for the number of criminals and the extent of France, not
many. There would be cases of transportation, cases of labor to restore
what has been wickedly destroyed, cases of imprisonment, and cases of
mere exile. But be this as it may, I am sure, that, if justice is not
done there, there can be neither peace nor justice there, nor in any
part of Europe.
History is resorted to for other acts of indemnity in other times. The
princes are desired to look back to Henry the Fourth. We are desired to
look to the restoration of King Charles. These things, in my opinion,
have no resemblance whatsoever. They were cases of a civil war,--in
France more ferocious, in England more moderate than common. In neither
country were the orders of society subverted, religion and morality
destroyed on principle, or property totally annihilated. In England, the
government of Cromwell was, to be sure, somewhat rigid, but, for a new
power, no savage tyranny. The country was nearly as well in his hands as
in those of Charles the Second, and in some points much better. The laws
in general had their course, and were admirably administered. The king
did not in reality grant an act of indemnity; the prevailing power, then
in a manner the nation, in effect granted an indemnity to _him_. The
idea of a preceding rebellion was not at all admitted in that
convention and that Parliament. The regicides were a common enemy, and
as such given up.
Among the ornaments of their place which eminently distinguish them, few
people are better acquainted with the history of their own country than
the illustrious princes now in exile; but I caution them not to be led
into error by that which has been supposed to be the guide of life. I
would give the same caution to all princes. Not that I derogate from the
use of history. It is a great improver of the understanding, by showing
both men and affairs in a great variety of views. From this source much
political wisdom may be learned,--that is, may be learned as habit, not
as precept,--and as an exercise to strengthen the mind, as furnishing
materials to enlarge and enrich it, not as a repertory of cases and
precedents for a lawyer: if it were, a thousand times better would it be
that a statesman had never learned to read,--_vellem nescirent literas_.
This method turns their understanding from the object before them, and
from the present exigencies of the world, to comparisons with former
times, of which, after all, we can know very little and very
imperfectly; and our guides, the historians, who are to give us their
true interpretation, are often prejudiced, often ignorant, often fonder
of system than of truth. Whereas, if a man with reasonable good parts
and natural sagacity, and not in the leading-strings of any master, will
look steadily on the business before him, without being diverted by
retrospect and comparison, he may be capable of forming a reasonable
good judgment of what is to be done. There are some fundamental points
in which Nature never changes; but they are few and obvious, and belong
rather to morals than to politics. But so far as regards political
matter, the human mind and human affairs are susceptible of infinite
modifications, and of combinations wholly new and unlooked-for. Very
few, for instance, could have imagined that property, which has been
taken for natural dominion, should, through the whole of a vast kingdom,
lose all its importance, and even its influence. This is what history or
books of speculation could hardly have taught us. How many could have
thought that the most complete and formidable revolution in a great
empire should be made by men of letters, not as subordinate instruments
and trumpeters of sedition, but as the chief contrivers and managers,
and in a short time as the open administrators and sovereign rulers? Who
could have imagined that atheism could produce one of the most violently
operative principles of fanaticism? Who could have imagined, that, in a
commonwealth in a manner cradled in war, and in an extensive and
dreadful war, military commanders should be of little or no account,
--that the Convention should not contain one military man of name,--that
administrative bodies, in a state of the utmost confusion, and of but a
momentary duration, and composed of men with not one imposing part of
character, should be able to govern the country and its armies with an
authority which the most settled senates and the most respected monarchs
scarcely ever had in the same degree? This, for one, I confess I did not
foresee, though all the rest was present to me very early, and not out
of my apprehension even for several years.
I believe very few were able to enter into the effects of mere _terror_,
as a principle not only for the support of power in given hands or
forms, but in those things in which the soundest political speculators
were of opinion that the least appearance of force would be totally
destructive,--such is the market, whether of money, provision, or
commodities of any kind. Yet for four years we have seen loans made,
treasuries supplied, and armies levied and maintained, more numerous
than France ever showed in the field, _by the effects of fear alone_.
Here is a state of things of which in its totality if history furnishes
any examples at all, they are very remote and feeble. I therefore am not
so ready as some are to tax with folly or cowardice those who were not
prepared to meet an evil of this nature. Even now, after the events, all
the causes may be somewhat difficult to ascertain. Very many are,
however, traceable. But these things history and books of speculation
(as I have already said) did not teach men to foresee, and of course to
resist. Now that they are no longer a matter of sagacity, but of
experience, of recent experience, of our own experience, it would be
unjustifiable to go back to the records of other times to instruct us to
manage what they never enabled us to foresee.
FOOTNOTES:
[33] Some accounts make them five times as many.
[34] Before the Revolution, the French noblesse were so reduced in
numbers that they did not much exceed twenty thousand at least of
full-grown men. As they have been very cruelly formed into entire corps
of soldiers, it is estimated, that, by the sword, and distempers in the
field, they have not lost less than five thousand men; and if this
course is pursued, it is to be feared that the whole body of the French
nobility may be extinguished. Several hundreds have also perished by
famine, and various accidents.
[35] This was the language of the Ministerialists.
[36] Vattel.
[37] The first object of this club was the propagation of Jacobin
principles.
APPENDIX.
EXTRACTS FROM VATTEL'S LAW OF NATIONS.
[The Titles, Marginal Abstracts, and Notes are by Mr. BURKE, excepting
such of the Notes as are here distinguished.]
CASES OF INTERFERENCE WITH INDEPENDENT POWERS.
"If, then, there is anywhere a nation of a _restless and mischievous_
disposition, always ready _to injure others, to traverse their designs,
and to raise domestic troubles_[38] it is not to be doubted that all
have a right to join _in order to repress, chastise, and put it ever
after out of its power_ to injure them. Such should be the just fruits
of the policy which Machiavel praises in Cæsar Borgia. The conduct
followed by Philip the Second, King of Spain, _was adapted to unite all
Europe against him_; and it was from just reasons that Henry the Great
formed the design of humbling a power _formidable by its forces and
pernicious by its maxims_."--Book II. ch. iv. § 53.
"Let us apply to the unjust what we have said above (§ 53) of a
mischievous or maleficent nation. If there be any that makes an open
profession _of trampling justice under foot, of despising and violating
the right of others_,[39] whenever it finds an opportunity, _the
interest of human society will authorize all others to unite in order to
humble and chastise it_. We do not here forget the maxim established in
our preliminaries, that it does not belong to nations to usurp the power
of being judges of each other. In particular cases, liable to the least
doubt, it ought to be supposed that each of the parties may have some
right; and the injustice of that which has committed the injury may
proceed from error, and not from a general contempt of justice. _But if,
by constant maxims, and by a continued conduct_, one nation shows that
it has evidently this pernicious disposition, and that it considers no
right as sacred, the safety of the human race requires that it should be
suppressed. To form and support an unjust pretension is to do an injury
_not only to him who is interested in this pretension, but to mock at
justice in general, and to injure all nations_."--Ibid. ch. v. § 70.
[Sidenote: To succor against tyranny.]
[Sidenote: Case of English Revolution.]
[Sidenote: An odious tyrant.]
[Sidenote: Rebellious people.]
[Sidenote: Case of civil war.]
[Sidenote: Sovereign and his people, when distinct powers.]
"If the prince, attacking the fundamental laws, gives his subjects a
legal right to resist him, if tyranny, _becoming insupportable_, obliges
the nation to rise in their defence, every foreign power has a right to
succor an oppressed people who implore their assistance. The English
justly complained of James the Second. _The nobility and the most
distinguished patriots_ resolved to put a check on his enterprises,
which manifestly tended to overthrow the Constitution and to destroy the
liberties and the religion of the people, _and therefore applied for
assistance to the United Provinces_. The authority of the Prince of
Orange had, doubtless, an influence on the deliberations of the
States-General; but it did not make them commit injustice: for when a
people, from good reasons, take up arms against an oppressor, _justice
and generosity require that brave men should be assisted in the defence
of their liberties_. Whenever, therefore, a civil war is kindled in a
state, foreign powers may assist that party which appears to them to
have justice on their side. _He who assists an odious tyrant, he who
declares FOR AN UNJUST AND REBELLIOUS PEOPLE, offends against his duty_.
When the bands of the political society are broken, or at least
suspended between the sovereign and his people, they may then be
considered as two distinct powers; and since each is independent of all
foreign authority, nobody has a right to judge them. Either may be in
the right, and each of those who grant their assistance may believe that
he supports a good cause. It follows, then, in virtue of the voluntary
law of nations, (see Prelim. § 21,) that the two parties may act as
having an equal right, and behave accordingly, till the decision of the
affair.
[Sidenote: Not to be pursued to an extreme.]
[Sidenote: Endeavor to persuade subjects to a revolt.]
"But we ought not to abuse this maxim for authorizing odious proceedings
against the tranquillity of states. It is a violation of the law of
nations _to persuade those subjects to revolt who actually obey their
sovereign, though they complain of his government_.
[Sidenote: Attempt to excite subjects to revolt.]
"The practice of nations is conformable to our maxims. When the German
Protestants came to the assistance of the Reformed in France, the court
never undertook to treat them otherwise than as common enemies, and
according to the laws of war. France at the same time assisted the
Netherlands, which took up arms against Spain, and did not pretend that
her troops should be considered upon any other footing than as
auxiliaries in a regular war. _But no power avoids complaining of an
atrocious injury, if any one attempts by his emissaries to excite his
subjects to revolt_.
[Sidenote: Tyrants.]
"As to those monsters, who, under the title of sovereigns, render
themselves the scourges and horror of the human race,--these are savage
beasts, from which every brave man may justly purge the earth. All
antiquity has praised Hercules for delivering the world from an Antæus,
a Busiris, and a Diomedes."--Ibid. ch. iv. § 56.
After stating that nations have no right to interfere in domestic
concerns, he proceeds,--"But this rule does not preclude them from
espousing the quarrel of a dethroned king, and assisting him, if he
appears to have justice on his side. They then declare themselves
enemies of the nation which has acknowledged his rival; as, when two
_different nations_ are at war, they are at liberty to assist that whose
quarrel they shall think has the fairest appearance."--Book IV. ch. ii.
§ 14.
CASE OF ALLIANCES.
[Sidenote: When an alliance to preserve a king takes place.]
[Sidenote: King does not lose his quality by the loss of his kingdom.]
"It is asked if that alliance subsists with the king and the royal
family when by some revolution they are deprived of their crown. We have
lately remarked, (§ 194,) that a personal alliance expires with the
reign of him who contracted it: but that is to be understood of an
alliance with the state, limited, as to its duration, to the reign of
the contracting king. This of which we are here speaking is of another
nature. For though it binds the state, since it is bound by all the
public acts of its sovereign, it is made directly in favor of the king
and his family; it would therefore be absurd for it to terminate _at the
moment when they have need of it, and at an event against which it was
made_. Besides, the king does not lose his quality merely by the loss of
his kingdom. _If he is stripped of it unjustly by an usurper, or by
rebels, he preserves his rights, in the number of which are his
alliances_.[40]
[Sidenote: Case wherein aid may be given to a deposed king.]
"But who shall judge if the king be dethroned lawfully or by violence?
An independent nation acknowledges no judge. If the body of the nation
declares the king deprived of his rights by the abuse he has made of
them, and deposes him, it may justly do it _when its grievances are well
founded_, and no other power has a right to censure it. The personal
ally of this king ought not then to assist him against the nation that
has made use of its right in deposing him: if he attempts it, he injures
that nation. England declared war against Louis the Fourteenth, in the
year 1688, for supporting the interest of James the Second, who was
deposed in form by the nation. The same country declared war against him
a second time, at the beginning of the present century, because that
prince acknowledged the son of the deposed James, under the name of
James the Third. In doubtful cases, and _when the body of the nation has
not pronounced, or HAS NOT PRONOUNCED FREELY_, a sovereign may naturally
support and defend an ally; and it is then that the voluntary law of
nations subsists between different states. The party that has driven out
the king pretends to have right on its side; this unhappy king and his
ally flatter themselves with having the same advantage; and as they have
no common judge upon earth, they have no other method to take but to
apply to arms to terminate the dispute; they therefore engage in a
formal war.
[Sidenote: Not obliged to pursue his right beyond a certain point.]
"In short, when the foreign prince has faithfully fulfilled his
engagements towards an unfortunate monarch, when he has done in his
defence, or to procure his restoration, all he was obliged to perform in
virtue of the alliance, if his efforts are ineffectual, the dethroned
prince cannot require him to support an endless war in his favor, or
expect that he will eternally remain the enemy of the nation or of the
sovereign who has deprived him of the throne. He must think of peace,
abandon the ally, and consider him as having himself abandoned his right
through necessity. Thus Louis the Fourteenth was obliged to abandon
James the Second, and to acknowledge King William, though he had at
first treated him as an usurper.
[Sidenote: Case of defence against subjects.]
[Sidenote: Case where real alliances may be renounced.]
"The same question presents itself in real alliances, and, in general,
in all alliances made with the state, and not in particular with a king
for the defence of his person. An ally ought, doubtless, to be defended
against every invasion, against every foreign violence, _and even
against his rebellious subjects: in the same manner a republic ought to
be defended against the enterprises of one who attempts to destroy the
public liberty_. But it ought to be remembered that an ally of the state
or the nation is not its judge. If the nation has deposed its king in
form,--if the people of a republic have driven out their magistrates and
set themselves at liberty, or acknowledged the authority of an usurper,
either expressly or tacitly,--to oppose these domestic regulations, by
disputing their justice or validity, would be to interfere in the
government of the nation, and to do it an injury. (See § 54, and
following, of this Book.) The ally remains the ally of the state,
notwithstanding the change that has happened in it. _However, when this
change renders the alliance useless, dangerous, or disagreeable, it may
renounce it; for it may say, upon a good foundation, that it would not
have entered into an alliance with that nation, had it been under the
present form of government._
[Sidenote: Not an eternal war.]