As to crimes, too, I would draw a strong line of limitation. For no one

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.]

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