XX
JUSTICE (continued)
las!" said my good master, "I cannot stomach my food. My heart is as sick at this horrible scene, which you have described so cold-bloodedly, sir, as at the sight of this servant of Madame Josse's whom they are taking to be hanged, when something better might be made of her."
"But, Monsieur," retorted the beadle, "have I not told you that this girl has stolen from her mistress; and do you not wish thieves to be hanged?"
"Certainly," said my good master, "it is customary; and as the force of custom is irresistible, I pay no attention to it in my ordinary course of life. In the same way Seneca, the philosopher, who nevertheless inclined to mildness, put together treatises of consummate elegance, even while near to him, at Rome, slaves were crucified for the smallest fault, as we see in the case of the slave Mithridates, who died, his hands nailed to the cross; merely guilty of having blasphemed the divinity of his master, the infamous Trimalchio. We are so made that nothing usual or customary either troubles or wounds us. And habit wears away, if I may say so, our indignation as well as our astonishment. I wake up every morning without thinking, I own, of the unhappy beings who are to be hanged or broken upon the wheel during the day. But when the thought of torture becomes more perceptible to me my heart is troubled, and the sight of this handsome girl led to her death contracts my throat to the point of refusing passage to this little fish."
"What is a handsome girl?" said the beadle. "There is not a street in Paris where they don't make them by the dozen every night. Why did this one steal from her mistress, Madame Josse?"
"I know nothing of that, Monsieur," gravely answered my good master, "you know nothing, and the judges who condemned her knew no more, for the reasons of our actions are obscure, and their springs remain deeply hidden. I hold man free as regards his deeds, as my religion teaches me to believe, but beyond the doctrine of the Church, which is sure, there is so little ground for believing in the freedom of mankind, that I tremble when I think of decrees of justice punishing actions whose mainspring, sequence, and causes, all equally escape us, where the will plays often but a small part, and which are sometimes accomplished without consciousness. If, finally, we are responsible for our acts, since the system of our holy religion is founded on the mysterious accord between human free-will and divine grace, it is an error to deduce from this obscure and delicate liberty all the troubles, all the tortures, and all the suffering of which our laws are prodigal."
"I perceive with sorrow, Monsieur," said the dingy little man, "that you are on the side of the rogues."
"Alas! Monsieur," said my good master, "they are part of suffering humanity, and members like ourselves of Jesus Christ who died between two thieves. I seem to perceive cruelties in our laws which will appear more distinctly in the future, and over which our posterity will wax indignant."
"I do not agree with you, Monsieur," said the other, drinking a little gulp of wine. "All the gothic barbarity has been pared away from our laws and customs, and justice is to-day restrained and humane to excess. Punishment is exactly proportioned to crime, and you see thieves hanged, murderers broken on the wheel, traitors torn by four horses, atheists, sorcerers, and sodomites burnt, coiners boiled alive; in all which criminal law exhibits extreme moderation and all possible mildness."
"Monsieur, in all times judges have believed themselves to be benevolent, equitable, and gentle. In the gothic ages of St. Louis, and even of Charlemagne, they admired their own benignity, which appears to us to-day as savage. I divine that, in their turn, our sons will judge us as savage, and that they will find still something more to pare away from the tortures and punishments which we inflict."
"Monsieur, you are not speaking as a magistrate. Torture is necessary to extract confessions unobtainable by gentle means. As to punishments, they are reduced to what is necessary to assure safety of their life and goods to citizens."
"You acknowledge then, Monsieur, that justice has for its object not what is just, but what is useful, and that it is inspired only by the interests and prejudices of peoples. Nothing is more true, and faults are punished not in proportion to the malice attached to them, but in view of the harm they cause, or which it is believed they cause, to society in general. Thus, coiners are put into a copper of boiling water, although, in reality, there is little malice in striking false coins. But the public, and financiers in particular, suffer a marked damage therefrom. It is this loss for which they avenge themselves with pitiless cruelty. Thieves are hanged, less for the perversity that lies in taking bread, and clothes, which is, by the way, excessively small, than for the reason of the natural attachment men have for their possessions. It is expedient to restore human justice to its true reason—which is the material interest of men, and to disengage it from all high philosophy—with which it pompously and hypocritically veils itself."
"Monsieur," replied the little official, "I do not understand you. It appears to me that justice is the more equitable the more useful it is, and this usefulness itself, which makes you disdain it, ought to render it august and sacred to you."
"You do not understand me," said my good master.
"Monsieur," said the little official, "I notice that you are drinking nothing. Your wine is good if I may judge by the colour of it. May I not taste it?"
It is true that for the first time in his life my good master had left some wine at the bottom of the bottle. He poured it into the little official's glass.
"Your health, Monsieur l'Abbé," said the beadle. "Your wine is good, but your arguments are worthless. Justice, I repeat, is the more equitable the more useful it is, and this usefulness itself, which, you say, is in its origin and foundation, should make it appear to you as august and sacred. But you must acknowledge that the essence of justice is to be just, as the word implies?"
"Monsieur," said my good master, "when we have called beauty beautiful, truth true, and justice just, we shall have said nothing at all. Your Ulpian, who spoke with precision, asserted that justice is the firm and perpetual desire to attribute to each what belongs to him, and that laws are just when they sanction this desire. The misfortune is, that men have nothing of their own, and thus the equity of law does but guarantee to them the fruit of their inherited, or recent, rapine. They resemble those childish agreements wherein after having won some marbles, the winners say to those who wish to win them back again, 'That is not fair play.' The sagacity of judges limits itself to differentiating between usurpations which are not fair play and those which were agreed upon in starting, and this distinction is equally childish and thin. Above all, it is arbitrary. The strapping young woman who at this very moment is hanging at the end of a hempen rope, had stolen, you say, a lace head-dress from Councillor Josse's wife. But on what do you found your belief that this head-dress belonged to Councillor Josse's wife? You will tell me that she bought it with her own money, or found it in her wedding-chest, or received it from some lover—all good ways of acquiring lace. But however she may have acquired it I merely see that she had the enjoyment of it, as one of those gifts of fortune one finds, or loses perchance, and over which one has no natural right. Nevertheless, I own that the lappets belonged to her conformably to the rules of this game of possession, which human society can play as children play at hop-scotch. She valued her lappets, and in fact she had no less right to them than any other. Well and good. It was justice to return them to her, but without putting such a high price on them that for two wretched lappets of point d'Alençon a human creature should be destroyed."
"Monsieur," said the little official, "you keep in view but one side of the justice of the matter. It was not enough to do right by Councillor Josse's wife by giving her back her lappets. It was necessary also to do right by the servant in hanging her by the neck. For justice is to render to each what is due to him. In which lies its majesty."
"In that case," said my good master, "justice is wickeder even than I thought. This belief that she owes punishment to the guilty is ferocious in the extreme. It is gothic barbarity."
"Monsieur," said the little official, "you misunderstand justice. Justice strikes without anger, and it has no hatred for this girl it sends to the gallows."
"A good thing, too," said my good master. "But I should prefer that judges confess that they punish the guilty from pure necessity, and only to make impressive examples. In that case they would merely hold by what was actually necessary. But if they think, in punishing, to give the guilty his due, one sees to what this delicate discrimination will lead them, and their probity itself will make them inexorable; for one knows not how to refuse people what is due to them. This maxim horrifies me, Monsieur. It was laid down with the greatest severity by an able philosopher of the name of Menardus, who pretends that to fail to punish an ill-doer is to do him wrong, and wickedly to deprive him of the right to expiate his fault. He held that the Athenian magistrates had done excellently well by Socrates the sage, and that they worked for the purification of his soul when they made him drink the hemlock. But those are odious thoughts. I ask that criminal justice should tend less to the sublime. The notion of pure revenge attached more commonly to the punishment of malefactors, although base and bad in itself, is less terrible in its consequences than the overweening virtue of ingenuous philosophers. I knew in former days, in Séez, a jovial and good sort of fellow, who took his children on his knee every evening and told them tales. He led an exemplary life, went to the sacraments, and prided himself on his scrupulous honesty in the corn business he had carried on for more than sixty years. Now he happened to be robbed by his servant of some doubloons, ducats, rose-nobles, and some fine gold coins, which he, curious of such things, kept in a case at the back of a drawer. As soon as he discovered this loss he carried complaint to the police, whereupon the maidservant was questioned, tried, condemned, and executed. The good man, who knew his rights, exacted that the skin of the thief should be given to him, of which he made a pair of pantaloons; and he would often smack his thigh and cry, 'The hussy! the hussy!' The girl had taken his gold pieces, he had taken her skin; anyway he had his unphilosophical revenge in all the simplicity of his rustic savagery. He had no notion of fulfilling a lofty duty when he slapped his hand light-heartedly on his garment of human skin. Better is it to acknowledge that if one hangs a thief it is for prudence' sake, and with the object of frightening the others by his example, and not at all on the philosophical plea for the sake of giving each man his due. For in true philosophy nothing belongs to anyone if we except life itself. To pretend that we owe expiation to criminals is to fall into mysticism of a ferocious description, worse than naked violence and open anger. As to the punishment of thieves, it is a right which has its origin in force, not in philosophy. Philosophy teaches us, on the contrary, that all we possess is acquired by violence or by cunning. And you see also that judges approve of our being deprived of our possessions if the ravisher be powerful enough. Thus it is permitted to the king to take our silver-plate to make war, as was seen under Louis the Great, when the requisition was so exacting that they even took away the fringe of the bed-hangings, to use the gold woven with the silk. This prince put his hand on the goods of individuals and on the treasures of the Church, and twenty years ago, performing my devotions in Notre-Dame-de-Liesse in Picardy, I heard the complaints of an old verger, who deplored that the late king had taken away and melted down all the treasures of the church, and ravished even the jewelled breast of gold, placed there some time before in great pomp by the Princess Palatine, after she had been miraculously cured of cancer. Justice seconded the prince in his requisition, and punished severely those who hid away any article from the king's commissaries. Evidently she did not think that these things belonged so peculiarly to their possessors that nothing could separate them."
"Monsieur," said the little official, "the commissaries acted in the name of the king, who, possessing everything in the kingdom, can dispose of it to his liking, either for war, or for naval armaments, or in any other way."
"That is true," said my good master, "and that is one of the rules of the game. The judges go about it as in the game of 'goose,' following one another and looking at what is written in the rules. The sovereign's rights, upheld by the Swiss Guard, and by all sorts of soldiers, are written there. And this poor girl, who has been hanged, had no Swiss Guard to inscribe in the rules of the game that she had the right to wear Madame Josse's lace. That is just how it is."
"Monsieur," said the little official, "I hope you do not liken Louis the Great, who took his subjects' plate to pay his soldiers, to this creature who stole a head-dress to deck herself."
"Monsieur," said my good master, "it is less innocent to make war than to go to Ramponneau's in a lace head-dress. But justice gives to every one what is his, according to the rules of this game played by man, which is the wickedest, the most absurd, and the least amusing of all games. And 'tis our misfortune that every man is obliged to take a hand in it."
"It is necessary," said the little official.
"Laws are also of use," said my good master. "But they are not just and can never be so, for the judge assures to his fellow men the enjoyment of the goods that belong to them, without distinction between the beneficial and the hurtful: this distinction is not found in the rules of the game, but in the book of Divine justice only, wherein no one may read. Do you know the story of the angel and the anchorite? An angel came down to earth with the face of a man and the dress of a pilgrim; making his way through Egypt. He knocked, at eventide, at the door of a good anchorite, who, taking him for a traveller, gave him supper, and wine from a golden cup. Then he made him lie down on his bed whilst he laid himself on the ground on some handfuls of maize-straw. While he slept his celestial guest rose up, took the cup out of which he had drunk, and, hiding it under his cloak, fled away. He acted thus, not meaning any ill-will towards the good hermit, but, on the contrary, in the interest of the host who had given him such a charitable welcome. For he knew that this cup would have been the undoing of the holy man, who had put his heart into its keeping, whereas God desires us to love none but Him and does not brook that a man, devoted to religion, should attach himself to the things of this world. The angel who had his share of Divine wisdom, distinguished between goods that are good and goods that are not. Judges do not make this distinction. Who knows but what Madame Josse may not lose her soul along with the lappets of lace her servant took, and which the judges have given back?"
"In the meanwhile," said the little official, rubbing his hands, "there is now a hussy the less in this world."
He shook the crumbs from his coat, bowed to those present, and went off jauntily.