Hesitation, however, is of little consequence. I only insist at present upon this new state of society, to prove that power is not free to choose; and that if its conduct were to appear dictated by the necessities of its personal situation, rather than those of the social, which should be manifested in it, it would soon fall into a profound weakness; for society would soon be aware that it was separated from the fate as well as interest of the public, and acted only for itself. And how can it be supposed that capital punishment, employed politically, will not awaken this idea in society! There are fearful times, I know, when the people themselves call for and excuse it. I do not believe nations to be secure from those frightful maladies which engender human passions and errors. But a crisis of this kind is rare, and not of long duration; and it is precisely when it does take place that capital punishment becomes most odious. Remember the burst of kindly feeling with which France turned towards the emigrants in spite of all mistrust, past animosities, and every possible prejudice, the revolutionary policy was overturned, because it could neither become just nor remain cruel. Since that period, capital punishment has been in political hands a weapon which compromises power more than serves it, and to which power has scarcely ever recourse but when in peril on its own account and from its own errors. It might be said that society, terrified by what it has seen, will no longer accept the responsibility of any political punishment, but is determined to believe that if it must be employed, government alone has need of an instrument which its own faults have rendered necessary. And that is especially true of a government which is not of yesterday, but has already held out, and is able to take its true position. If it were now only struggling into life, we might think with regret that it had not had time to become known, or to dissipate by its wisdom the perils surrounding it, and that examples were still necessary, and the severities of to-day only the forerunners of peace tomorrow. But if the government has been long enough established, if legal means and leisure have not faded in their influence, if it has been able to show itself wise, and become strong by its harmony with the public, then conspiracies cannot spring up again, nor punishments recommence, without society immediately repelling from itself both the necessity and the blame. Then power is again invested with this personal and isolated character which destroys it: it is no longer social power; and society, instead of seeing its own reflection, beholds only an interest which is not its own, wants which it disavows, and intentions in which it has no share. The justice of such a government is not true justice, and its necessities are not real necessities.
There is, in fact, in political chastisements, as in other things, a true justice and necessity, often distinct from legal justice and the necessities of power. Governments have long given up troubling themselves on the subject. In barbarous times—and their duration was long—legal justice did not seem to have been required at all; the personal necessities of power being sufficient. When attacked, it had every right to defend itself, and the execution of a conspirator called for little more delay or formality than the death of an enemy. By degrees, however, legal justice was introduced into public policy, the people began to think, and power was forced to admit that there were other things besides war, and that against crimes of this nature, as of every other, laws, forms, proofs, and judgments were necessary. This was an immense progress, and it is now approaching its consummation. But the career of progress is not yet stayed—the public cry is still, Go on! The laws which regulate the chastisement of political crimes may be insufficient or even bad; and the necessities which deliver up culprits to the laws may be false. Society goes the length of supposing this more especially when the question is of capital punishment. Suspecting that power is isolated from it, and looks to its own interest alone, it is at the same time convinced that that interest does not suffice to legitimise punishments, and that power has not the right of defending itself at all risks. Sufficiently enlightened to know that infallible justice does not belong to any law, and that were laws even without fault in themselves, the faults of men would corrupt them in their administration, society now neither relies upon the personal wants of power nor upon the legality of its processes. It would have these wants founded on reason, and these processes in equity. Whether it obtains this or not, its demands continue; for it is aware of the justice of the debt, and though refused, it is not forgotten. Moreover, has not one political condemnation, legally pronounced, succeeded better in our days in convincing the people of its necessity and justice, than the most arbitrary executions of former times? Let not power mistake this new exaction of the public; for it is a powerful and irrevocable one, and is allied to all the progress, and all the moral wants of civilisation and of the human mind. Let it not flatter itself in thinking to escape by taking refuge behind the laws: it has long rejected their yoke, and now it would make them a shield when beaten on an open field, and would possess itself of the citadels armed against it, and then think itself inviolate. But it will be pursued to this asylum, which will be shown to have been profaned more than once by deceit and iniquity. It may plead that the punishment was legal; but it will be asked if it was just or necessary. Is it, indeed, so politically? And in what case, and under what conditions? We must descend to these questions, for the public thought itself descends to them, and will have an answer. A government which would give itself no concern in such questions, but say with Pilate—'I wash my hands of the blood of this man: see ye to it,' such governments would soon learn that they do not escape; that no deceit, no laws, can save from impending danger a power at once egotistical and hypocritical, which, in separating itself from society and truth, makes for itself a justice which is not true justice, and a necessity which is not the necessity of the country.
Chapter VI.
Justice.
Need I say that if there were a justice anterior and superior to legal justice, there would be no legal justice. Montesquieu has made this principal truth the principal idea of his book: 'To say that there is nothing just or unjust but what positive laws order or forbid, is to say that rays were not regular before the circle had been traced.' It would be strange if natural justice, in virtue of which legal justice exists, should cease to be from the moment the latter was written. But it does not cease to be, or even to speak; it has in principle its general conditions, and on each occasion its particular will, which legal justice is bound to carry out.
I shall mention presently the progress of a struggle between the two; but we must first inquire what true justice is, before supposing it to fail in obtaining what it desires. Morally speaking, there are two parts in every action—the morality of the act itself, and the morality of the agent. The morality of the act depends on its conformity with the eternal laws of truth, reason, and morality, which no man knows fully, but only aspires to know, judging according to the degree of that knowledge of the merits or demerits of human actions. The morality of the agent resides in the intention—that is to say, in the idea which he has himself conceived of the morality of the action—and in the purity of the motives which carry him on to its accomplishment. When these two are at variance, the fact is shown in the daily conduct and common language of men. 'He has done ill,' they say, 'but he intended to do well;' that is, the action may be absolutely culpable, and yet the agent personally innocent.
But will Divine justice consider only the intention? or will it punish error? I dare not decide. Error is often caused by vanity, passion, the preoccupations of personal interest, or of pride—that is to say, by what is wrong. How does this wrong affect individual unconsciousness of error? It is seldom given to men to decide the point; God alone can see clearly into the depths of the conscience. But this is certain, that the judgment of man can neither absolve the guilt of the action because of the intention of the agent, nor condemn the agent without taking the intention into account. Thus our nature wills it.
Unable to solve such a problem, legal justice is obliged to act as if it did not exist. It declares certain actions to be culpable, and punishes those who commit them, without troubling itself to inquire whether they are guilty in intention or not. And in this there is no reproach to be cast on legal justice; for the effects of bad actions are in themselves so fatal to society, that it cannot give up to individual opinion the right of deciding upon them: it declares their nature, and takes care that its laws are observed.
But there are here two remarks to be made. First, that society thus absolutely incriminating certain actions, is bound to be in the right in its condemnations; and second, that although the laws cannot be rendered subordinate to the intention of individuals, they cannot abolish this element of man's judgment; and when, therefore, in their application they have the misfortune to punish an intention evidently pure, the natural sentiment of justice is offended. Legal justice, then, runs a double risk—that of erring in its general incriminations; and that of encountering, in the application of its rules, particular facts in which a circumstance occurs it has not taken into account, and which, nevertheless, will act powerfully upon the mind of man—honesty of intention. If there is a species of action in which this double obstacle in the way of legal justice is most real and apparent, certainly it is political crime. I have already said that the character of such an offence is variable and even conditional, and that, moreover, it is difficult to decide upon and appreciate it justly. Who does not know, too, that error is nowhere more easy, and that the purest intentions are here often associated with the most immoral acts! Some persons, struck with these facts, have gone so far as to think that, morally speaking, there are no political offences; that force alone creates them; and that good or bad fortune is the test of their culpability. I do not share in this idea in any degree. It germinates in those unfortunate times when the duties and rights of citizens disappear, or become obscured, so to speak, under the mantle of despotism, or in the storm of revolutions; but the light has not ceased to be because an eclipse has hidden it. The endeavour to change the established government, even if it did not involve any private crime, may unite in the highest degree the two general characters of crime—the immorality of the act, and the wickedness of the intention. It matters little, then, that its end is political; it does not less constitute a true crime, which ought to be punished, and perhaps with justice. Neither insurrections nor conspiracies have the privilege of innocence; and if virtue has often succumbed in its resistance to tyranny, history has no want of criminal conspirators.