Part 34

If, however, I were asked to give an advice merely as such, here are my ideas. I am not for a total indemnity, nor a general punishment. And first, the body and mass of the people never ought to be treated as criminal. They may become an object of more or less constant watchfulness and suspicion, as their preservation may best require, but they can never become an object of punishment. This is one of the few fundamental and unalterable principles of politics.

To punish them capitally would be to make massacres. Massacres only increase the ferocity of men, and teach them to regard their own lives and those of others as of little value; whereas the great policy of government is, to teach the people to think both of great importance in the eyes of God and the state, and never to be sacrificed or even hazarded to gratify their passions, or for anything but the duties prescribed by the rules of morality, and under the direction of public law and public authority. To punish them with lesser penalties would be to debilitate the commonwealth, and make the nation miserable, which it is the business of government to render happy and flourishing.

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:

Some accounts make them five times as many.

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.

This was the language of the Ministerialists.

Vattel.

The first object of this club was the propagation of Jacobin principles.

APPENDIX.

EXTRACTS FROM VATTEL'S LAW OF NATIONS.

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 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, 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.

"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.

"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.

"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.