But the partisans of condemnations have yet a refuge: they say that central authority, or the higher administration, does not institute prosecutions; that the great law officers and judges of instruction have the duty as well as right of commencing of their own accord in political as in other matters; and hence they conclude that we cannot exact from a minister that which does not depend upon him, but upon numerous and independent magistrates.
If I may be permitted to say so, I entertain a profound disgust of those hypocritical arguments which, knowing their own nothingness, lie without the hope of deceiving. In my opinion this one is of the number; but yet it must receive our attention, since it is used in the controversy. In fact I do not fear to say that, in our day, and excepting two cases within my own knowledge, no prosecutions for pure political crimes, such as conspiracies and offences of the press, have taken place but when authorised by the minister. I know well enough how these things are managed, and I do not believe that any procureur du roi is permitted to engage government in such processes against its will, or without its knowledge. Has this officer the right to do so, and would the ministers allow it? Is the action of the public ministry in matters of political crimes spontaneous and independent in principle? The question becomes important, and although forced to content myself with a glance, I will not elude it.
Under a constitutional regime, there are only two kinds of magistracies, responsible and irresponsible; and wherever power is established, justice and liberty demand absolutely one or other of these guarantees. It is the custom to believe that independence results either from popular election, or permanence of office; but though I believe that one of the two conditions may be necessary, I do not think it is always sufficient of itself. Independence is not so easily formed; for besides its legal, it has moral conditions, which are not obtained by an act, or in a day. It does not less depend upon the personal steadiness of the magistrate, his social position, and the idea he has himself conceived of his rights, than on the origin or duration of his functions. They might render the prefects unremovable to-morrow, but they would not be as independent as the sheriffs of England, nominated by the king, and for a single year.
I do not say this in order to deny the independence of our unremovable magistrates; for I believe that, for eight years past, and especially in the higher courts, it has made a real progress. Liberty cannot begin to dawn in a country where its spirit is not everywhere diffused, even among the depositaries of power. I do not think that this independence is yet all it should be; and it is important not to allow ourselves to be deceived by words, or to see in mere exterior signs the certainty and reality of the guarantees. However this may be, it will be admitted that if permanence of office does not secure the independence of the magistrate, his want of permanence must imply that he is responsible.
Unfortunately, responsibility is not easier to create than independence; for it likewise has more important moral conditions than those written in the laws. It has been affirmed that it flows fully and sufficiently from permanence of office. But this is not the case; for just as the world has seen perpetual magistrates very little independent, so it may see removable magistrates with a very illusive responsibility. Removableness is not in itself an efficacious guarantee, or a principle of real responsibility, but for the profit of the higher authority. It is true that the power which can displace at its pleasure the magistrates it employs, is by that circumstance alone assured of their responsibility, so far as itself is concerned. But will that suffice? And when we speak of the responsibility which must supply the place of independence, is the question of that alone?
There is here a snare, perhaps placed without design, but into which we must not fall. Do we ask of ministers to make the responsibility of the ministry they undertake a reality? They reply that the public ministry is independent. Does it desire then to act as if it were so? They deprive it of this independence in alleging its responsibility to themselves. Thus they destroy the responsibility in alleging its independence, and the independence in the name of its responsibility.
So, when all the responsibility of a class of magistrates lies in their removableness, the higher power, to whom alone they are responsible, can alone profit by it. Surely it is not responsibility of this kind we seek, but responsibility to society itself, to justice, and the public interest; without which removableness is but a falsehood and a new danger.
How to escape this danger? How to realise the social responsibility of removable magistrates? There are but two means: the dependence which results from removableness must be combated by the elements of independence, which, giving magistrates a proper power, restricts the higher power in the exercise of its right, and imposes upon it the obligation of using it but seldom, with caution, and only in a case of absolute necessity; or the dependence must be complete, and the responsibility of magistrates concentrated entirely upon the high administration, which alone offers any hold to political responsibility, since it alone is called upon to the public discussion of its acts and their constitutional justification.
If I had to choose between these two means, the first would appear to me to be greatly preferable. I own that I hold that responsibility to be of little value which leaves the place where it originated to seek afar off for that where it will become real, and travels from agent to agent, growing weaker from each transition, until it has found the individual with whom it must rest. It has, in my opinion, a great chance, after so many changes, of becoming in the end illusive, perhaps even unjust. And I think besides that, without giving to the public ministry the same degree of independence which belongs to the judges, we may regret that it has none at all. Magistrates reduced to the condition of simple agents are no longer magistrates. They are wanting both in authority and dignity, for dignity goes with independence. Moreover it happens, in the nature of things, that in many cases, in matters of private crimes, for instance, the action of the public ministry is truly spontaneous and free. Hence it follows that its position becomes a false one in those cases where it has no longer spontaneousness and liberty; and the falseness of its position proves a means of deceiving the public, who are still told of the independence of these magistrates, when, in fact, as in political affairs, there is no such thing. There results from all this for the public ministry a false and bastard position, which compromises it in the ideas of the people, but which would cease if it were indeed a magistracy invested with some personal consistence, with a proper degree of strength, with independence enough to feel itself under the weight of a direct responsibility, and summoned for the service of power, though without holding from it every element of its importance, and every law of its action. I repeat, I would much prefer, and for the sake of liberty as well as of the magistrates, a public ministry thus constituted to the hierarchical subordination of the purely administrative regime; but such things are not the work of one generation nor of a legislative will. Shall we obtain them one day, and on what conditions can such a magistracy have a place in our constitutional system? I have nothing to do with this question here; but assuredly, when the guarantees of the social responsibility of the public ministry are not found to have a degree of independence accordant with its mission, we are in the right to seek them elsewhere. They may, it is true, be of a partial and haphazard nature; but no matter, it is all that remains to us. There is here a great power, a power whose action is in a great measure arbitrary; and we need a visible and real responsibility, at least for discussion. This is nothing more than a right. I again affirm that in political matters the subordination of the public ministry is complete; that here it possesses no spontaneousness; that in almost every case it is the higher administration that orders or holds back the prosecutions, and decides upon their propriety and direction. Since it does exercise this power, it is bound to make use of it reasonably, according to the public interest: it is bound to prove that it does use it thus; and it stands responsible for using it in excess, or without necessity.
Here, then, is the first road opened to the economy of capital punishment, the first means of sparing the tribunals the necessity of a frequent application of the rigours of the law. It rests with power to smother many political offences without prosecuting them. In the present state of society it will find this easy; and in the present state of the magistracy it has the absolute right, for the prosecutions are in its hand.