The prosecution and qualification of political crimes on the one hand, and the right of pardon on the other, are the means by which government can, without changing or infringing on the laws, preserve the legal domain from capital punishment, in rendering its application more rare, and thus placing its conduct in harmony with true justice, true social necessities, true prudence and its own duty.
This liberty of action should involve reason in decision; and since the arbitrary preserves a place in the attributes of power, it should be considered to create a void that must always be filled by justice and the public good.
Chapter IX.
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. 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? 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?