It is now re-established, and very properly so, like many other rights of which the sudden revolution had stripped the royal power; but at the same time, like all these rights, it has reentered the dominion of the principle which is the permanent and tutelary condition of this power. The king, acting by advice, and inviolable in everything, rules under the countersign of a responsible minister. Let those who still doubt on this point at least examine it. They have already abandoned two similar opinions: they said that the right of dissolving the Chamber of Deputies, and that of creating peers, were in like manner personal to the king, free from all ministerial responsibility. But in 1816 and 1819, the king openly exercised both by the advice of his ministers. Such was the power of facts, that it became necessary to pay homage to the truth of principles, and recognise a responsibility which appeared to flow from these acts of government. The most violent, as well as the most enlightened members of the party now in power, have exclaimed against the ministry to which they imputed them; and which, I think, would no more hesitate now than it did then. The privilege of mercy is not of another nature, for it is not placed out of the constitutional pale, and perhaps occupies a position not less important. It is forming too mean an idea of it to regard it as merely intended to illustrate the goodness of the prince, and to call down blessings upon his name. It may produce this effect, and that is one of its advantages; but it is founded upon more extended causes and more general interests. In fact it is a portion of the right of justice, a remnant of the times when princes, exercising judgment themselves, could, according to circumstances, either condemn or absolve. In the progress of social order, the right of judging has departed from the prince, but he has retained the right of pardoning. What a great example of that mysterious Wisdom which presides over the development of civilisation, and which, unconsciously to man, calls forth from the bosom of facts institutions and customs conformable to those eternal truths, the laws of which human wisdom alone could never have discovered! Balanced between the need of justice and the impossibility of giving up to the capricious or perverse will of man the right of ruling, society felt first the perils of arbitrary power; and in order to free itself, established fixed laws and independent judges, strove against the influence of individual will upon judgments, and tried to write justice beforehand, and to connect with it beforehand the judges. A great amelioration has been the result of these efforts. But truth has not allowed itself to be seized all at once; and the inevitable nature of things has not always consented to be seen in the texts of the laws. After having struggled against the arbitrary principle, it has been necessary to recur to it; and in the same way that the precision of legal judgments has been invoked against the imperfections of men, so the conscience of man has been invoked against the imperfections of the judgments. Thus the necessity of the arbitrary principle, indomitable in our weakness, makes itself felt after its danger; and in default of that infallible judge who is wanting upon earth, the freedom which the law wished to subdue in order to rule has now in its turn come to the succour of the law itself.
Such is the inevitably vicious circle of human affairs. The great error of the Constituent Assembly, both in its theories and institutions, was to mistake this fundamental element of our condition, and suppose that truth, reason, and justice could belong, fully and perfectly, to certain forms and certain powers, and that it was thus possible to banish completely the arbitrary principle: an arrogant attempt, which could only lead to tyranny. Such an attempt can never succeed, for it is in direct opposition to the present system of government which the people favour, and which it was the object of the Constituent Assembly to found. It is the grand characteristic of the representative government to accept freely, in many cases, the imperious necessity of the arbitrary principle, and at once to remedy its defects in associating it with responsibility. The greater progress we make in this system, the more shall we be convinced that responsibility in all its forms, and by the most diverse means, moral or legal, direct or indirect, is its most essential character and most powerful spring. A complete and admirable system, then, it must be, since it recognises at once the weakness of our nature and respects its dignity. In this system it is impossible to prevent arbitrary power, however needful its presence may be, from being suddenly seized upon by responsibility. If it were otherwise, the entire system would be falsified. The privilege of mercy would be no privilege at all. Has the nature of this right been well examined? It is the right of suspending, or annihilating the law; it is that 'dispensing power' which was one of the causes of the terrible struggle of the English nation and the Stuarts. The kings of England maintained that it was their privilege to recognise in particular cases the injustice or imperfection of certain laws, and so to exempt such or such citizens from them. The country would never agree to this, and the country was right. All the laws and all the public rights would have been enervated by such a privilege. The ministerial responsibility alone could, in exercising the privilege of mercy, preserve society from that peril; for if it remains ignorant of one function of power, it will soon be so of others. The dispensing power of the Stuarts desired likewise to have the right of exempting the Catholics from certain penal clauses; but the parliament knew well that, in policy as in morals, bad principles must be put down, and it would neither allow itself to be over-ridden nor neutralised.
Where could falsehood elsewhere hide itself? Who does not know that in the exercise of the privilege of mercy, as in every other step, the king commonly decides according to the advice of his ministers, whose duty it is to study the case, and submit to him the reasons for decision? Who is ignorant that, on every occasion, the petitions for pardon are addressed to the minister of justice, and become in his office the object of an examination, which produces a report to the king, who thereupon grants or refuses his clemency? This clemency is free, absolutely free, yet it desires to be enlightened; and if I am not mistaken, when such petitions are addressed directly to the sovereign, he himself orders them to be referred to his minister, to the end that the regular course of administration should be uninterrupted. In political matters this regularity is still more scrupulous, for there the severity or clemency may affect the entire conduct of the ministry, and the general state of the country. Such affairs are always a subject of serious deliberation in the council. It matters not whether the determination which ensues be conformable or not with the advice of ministers, for if they neither disavow nor fail in carrying it into execution, it is their own; it belongs to their responsibility, like all other royal decisions, the secret of which none knows better than they. They have, then, no right to declare themselves absolved from the consequences; they have given their advice, fulfilled their task, and must be answerable. The mantle of royal inviolability is itself inviolable, and no one can pretend to cover himself with it.
Is the privilege of mercy thus brought under the common law of constitutional principles, and fixed in the province of the upper administration, an engine of government which might be used to advantage to-day, and if so, what use should be made of it as regards political crimes?
To those who would persist in seeing in it merely a means of extending mercy to individuals, and not a political instrument of general government, Montesquieu has replied for me:—'Letters of pardon,' says he, 'are a great instrument of moderate governments; the power by which a prince may pardon, when exercised with wisdom, may have admirable effects.'
And can it be otherwise? It is especially for political crimes that the privilege of mercy seems to be reserved—crimes frequently of an equivocal nature, to which sincere errors may be allied, and sentiments worthy of respect; by which society may not always appear to be threatened; in which the peril—the principal element of the crime—is wanting; and, in short, in which want of success acts more efficaciously than chastisement. In private crimes, pardon supposes error, or at least excessive severity of judgment: and it may thus have the inconvenience of shaking the authority of legal justice, or the confidence in the wisdom of the laws. Too widely used, it would point out vices to reform in the tribunals or the codes; it would make the royal clemency a new jurisdiction, a tribunal of equity called upon to revise all criminal judgments; and offering, neither in the administrative instruction which preceded the sentences, nor in their forms, any of the prudent warrants of ordinary tribunals. In political crimes, none of these inconveniences are to be dreaded: here pardon implies neither the error of the chief judges, nor even, in a legal point of view, the immoderate rigour of their decree. It neither compromises nor shakes their authority in any way: it simply reveals the intention of the sovereign of treating with gentleness even those of his subjects of whom he has to complain: a moral and politic intention, that has no dispute with the laws, and does not alter their credit, but addresses itself to a circle of sentiments or ideas completely foreign to that in which legal justice moves. One may even presume that, in such a sphere, the habit of clemency, far from discouraging the severity of jurors or judges, would make them less timid and more free. The idea is so natural, that the public has sometimes seemed to believe that a particular political condemnation had been pronounced only in the prospect of a pardon to neutralise its rigour. Thus, by an economy of blood, we might perhaps gain the facility of example; power would have all the merit of the moderation, and the citizens who, in the courts of assize, often hesitate, and with good reason, when it is necessary to condemn a man to the scaffold, would manifest with less pain their disapprobation of his attempts or his designs.
We fear the effects of impunity; we fear that confidence of courage which supposes moderation to result from weakness or cowardice. But I have never known any governments taxed with weakness but those that were really weak; and with regard to them, I know of none to whom rigour can supply the wanting strength. It is the most obstinate error of power to take on every occasion the effect for the cause. Thus, if discontent is general, it imputes it to the symptoms by which it is manifested. Since strong governments have been rigorous, it concludes that every rigorous government must be strong. I have already exposed this absurd mistake, and I find it here in all its grossness. Doubtless it is possible that mildness may be allied to weakness, and malevolence encouraged by it; but it is not from the mildness the evil comes, but from the weakness—that real weakness which betrays itself in severity the same as in mercy. I am ashamed to insist upon these commonplaces of common sense; but what is to be done? When the error is a vulgar one, it is by vulgar truths it must be subdued. Besides, what do you call impunity? Is it banishment, imprisonment, transportation? These are the next punishments to death, and you may substitute them for it. Amusing impunity! Do you not see that similar commutations are in absolute harmony with the present state of morals and the nature of political dangers? We are no longer in the time of strong and indomitable passions, which survived suffering and irons, and were found, after twenty years of impotence and captivity, in all their energy. Such sentiments belong to those epochs when even liberty is morose, when life offers few distractions and few pleasures, when the ideas which occupy the mind of man are few and simple, and are not of that conflicting nature which confuses and agitates the soul, drifting at random in the midst of an advanced civilisation. In our day the prison or banishment takes men away from a commodious and pleasant existence; and they regret a thousand enjoyments they knew not in former times, and receive from punishment much more efficacious warning. Yet they do not experience in exile or prison those ferocious violences which formerly irritated them so deeply, rendering them as much more untractable as they were more miserable. In the present day, even without liberty, a prisoner's physical sufferings are not such as to disable him from reflecting on the causes of his misfortune, recognising his imprudences or errors, calming perhaps, or at least terrifying himself, and returning one day into society more softened than enraged. A power, however wanting in skill, would find, I am sure, in these features of our social state a thousand means of working upon the condemned enemies whose lives it had spared. Besides, whose is the necessity for the blow? Political perils are not immutable; though substantial now, perhaps in two years they will have disappeared; and the man who is to-day their instrument, will then have neither the power nor even the idea of hurting the consolidated government. A bandit or an assassin robs or kills on his own account, from motives purely personal, and without troubling himself as to whether the disposition of society is favourable, or whether he will receive from it protection or support. But political crimes are not so isolated: right or wrong, they are in correspondence with the condition of the public, from whom they promise themselves indulgence or even succour; they are to a certain extent crimes of circumstances, and would not have been committed, or perhaps conceived, if circumstances had been different. And wherefore be in such a hurry to kill when the circumstances may change! The present peril is foreseen; the condemned is in the hands of power, which, in sparing his life, may yet retain him in impotence while the danger continues. The danger past, of what use is severity? Is it so difficult to keep some mercy in reserve for days of security? If you have not this foresight, but hasten to irrecoverable steps, know you what will happen? That the trouble and danger will go on increasing, and you will be demanded an account of your needless severity. But if fortune is more favourable, and danger departs, and the storm subsides—then, when safety has returned, and society sees no more in a pressing peril the motive of your rigour, it will forget peril and motive together: it will remember only your bloodthirstyness; and governed by that instinct of truth which does not permit us to attribute to the death of a few men the return of peace and order, it will say that you have sacrificed to your fear or your vengeance those whom you might have spared without danger.
It would be right to think thus; and the fact which is revealed in this sentiment is the political uselessness of capital punishment. It must be seen from a distance, in order to be judged properly as to its effects; and more than once, governments have had to regret having lost the opportunity offered to them by the privilege of mercy. Hurried away by the passions or perils of the moment to give it full sweep, they have afterwards found themselves weighed down by obligations and recollections, the burden of which they deplored. In the midst of the mobility of human affairs, it is a great fault in power to bind itself by irrecoverable acts. A day may come when the blood which it shed, apparently forgotten, will bubble up between it and the men it has most need of. Formerly, the brutality of manners and power of personal interests were such, that obstacles like this gave way easily before new circumstances; but in the present day, notwithstanding the unchangeable levity of our nature, they are more real and more difficult to surmount, for public opinion lends them a force which they could not always derive from the constancy of individual sentiments. The prudent use of the privilege of mercy disperses them, as it were, beforehand, and leaves power a freedom of movement, which it is of great importance for it to preserve. In what consists wisdom, if not in foresight! Let governments be possessed of that, and I doubt if they will frequently make use of capital punishment.