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52.: ATTEMPT TO SAVE THE EX-MINISTERS EXAMINER, 24 OCT., 1830, PP. 673-4 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I [1822]

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The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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52.

ATTEMPT TO SAVE THE EX-MINISTERS

EXAMINER, 24 OCT., 1830, PP. 673-4

This article comments on the attempts of the Chamber of Deputies to avoid the consequences of having, on 13 Aug., 1830, unanimously approved a resolution (Moniteur, 1830, p. 902) accusing of treason the ex-ministers responsible for Charles X’s July ordinances: Polignac, Peyronnet, Guernon-Ranville, and Jean Claude Balthazar Victor de Chantelauze (1787-1859), who had become Minister of Justice in May 1830. On 17 Aug. it had accepted for consideration a motion to abolish the death penalty introduced by comte Alexandre César Victor Charles Destutt de Tracy (1781-1864), defender of liberal causes (ibid., pp. 918-19). On 8 Oct., 1830, it adopted, by a vote of 246 to 21, the Projet d’adresse au roi, proposing a major reduction in the number of capital offences (ibid., pp. 1274-6 and 1278-82), which was enthusiastically received by Louis Philippe on 9 Oct. (ibid., p. 1277). This article, the first in the “Political Examiner,” is headed as title. It is described in Mill’s bibliography as “A leading article in the Examiner of 24th October 1830, headed ‘Attempt to save the ex-ministers’ ” (MacMinn, p. 12). See also Nos. 68 and 71.

the french chamber of deputies has voted an address to the King, requesting him to propose a law, for the abolition of capital punishment in all cases of political crime, and in all other cases, except those of a few specified offences, the most dangerous to the safety of society and implying the greatest measure of depravity in the criminal.

Before we give utterance to the doubts and apprehensions which this precipitate, and, we fear, ill-timed resolution, has excited in us, we must request indulgence while we dwell for a few moments on thoughts of a more exhilarating tendency. We cannot restrain our delight and admiration on seeing this noble people afford every day some new and splendid example of its progress in humane feelings and enlightened views. When we recal the pitiable exhibition of our ministry and parliament, on a fragment of this very subject, a few months ago,1 and contrast it with what we now behold in France, with the leading statesmen of all parties uniting almost as one man to effect this grand legislative improvement, and its principle approved even by the journalists who lament, and the placarders who inveigh against, its retrospective application—it becomes painfully evident how greatly the educated classes in France, on all questions of social improvement to which their attention has been directed, are in advance of the majority of the same classes in England, and how eminently their practising lawyers, whose opinion must have peculiar weight on such a subject, are distinguished in expansion of ideas and elevation of soul from our narrow-minded technicalists.

The comments, which we cannot help making upon the occasion chosen for beginning the mitigation of the French penal law, are made with the most heartfelt wish that the event may prove them misplaced and inapplicable. No reverence can exceed that which we feel for the constancy of purpose, the unwearied and single-minded philanthropy of such men as Victor de Tracy and Lafayette. They may be better judges of the maturity of the public mind than ourselves, or than the ablest and most enlightened of their own journalists. May they prove so. No one, at least, can mistake the impulses by which their course has been determined. As they were in the beginning, so are they now, and will be to the close of their pure and noble career.2 But it is something new to find the majority of the Chamber marching under their banner. Who compose this majority? The very men who two years ago scouted the same proposition when brought forward by the same individuals. A taste for precipitate reforms is not the failing, of which the rest of the conduct held by these persons since the revolution permits us to accuse them. And wherein consisted the peculiar urgency of the present case? In the circumstance that four men are about to be put upon trial for their lives, by whose guilt more citizens have lost theirs, than usually perish by all other crimes taken together in the course of a century. It is true that these men were ministers. We may be permitted to ask, would as much have been done for four criminals of any other kind? But the fate of a minister concerns all who hope to be ministers. It is well that the zeal which might else, peradventure, have slumbered for some time longer, has been warmed into activity on one subject at least, by motives of a potency so irresistible. Let us hope that this enthusiasm, this generous reliance on the civilization and intelligence of France, will not exhaust itself in one single manifestation. Something of the same spirit will not displease us, when the conditions of eligibility, and the qualification for the elective franchise come to be decided on. Alas! that so great a measure should be presented to a people, so ill prepared, we fear, to receive it, under the auspices of men every one of whose acts is viewed with just suspicion, and on an occasion so well suited to give colour to the worst interpretation.

What becomes of the miserable criminals themselves, whether they die on the scaffold, in gaol, or in dishonoured exile and obscurity, appears to us a matter of consummate indifference. We do not desire their death; though we cannot affect to feel for them any compassion. Our sympathy is with the maimed, the widows and orphans whom they have made. But with the past, punishment has nothing to do. Punishment cannot make that which was, to have never been. The death of the assassin will not bring back to life the victim whom he has slain. Punishment regards the future alone. Safety, not vengeance, is its object, and all thinking men have long been persuaded, that death is far from being the punishment which operates with greatest force upon the minds of delinquents, far even from being the most severe.

The only fit end of punishment is the prevention of crime: but is this truth commonly felt and understood? Are there many, besides persons of cultivated intellects, who have wrought it thoroughly into their convictions, or impressed it deeply upon their feelings? In most minds the idea of punishment has not ceased to be at bottom that of expiation, or the principle of so much pain for so much guilt; the argument most frequently insisted upon even for the alleviation of a penalty, is this, that it is disproportioned to the crime. Why is it that murder is almost invariably excepted from the propositions even of philanthropists, for the abolition of capital punishment? Murder is not the crime which it is most difficult to prevent. The feeling which gave birth to the lex talionis3 has not yet died away. The doctrine of blood for blood has sunk deep into the hearts of the vast majority of every people who have been accustomed to see it put in practice. We should not wonder, if there were some persons here who are so foolish as to suppose, that it is thirst for vengeance which makes the Parisian populace cry out, “Death to the ministers.”4 The supposition is too absurd to be worth reasoning upon. If the people desired vengeance, what opportunities of gratification did they not forego during the three days? The very men who had been firing upon them the moment before, were treated as soon as they were disarmed, with the kindness of brothers. Except those of their own number whom they executed for pillaging, it is not known that they put to death a single person, after he had ceased to resist. The officers who gave the orders to fire, remain unmolested to this day. Marmont himself was allowed to retire in quietness, not a voice being raised for his punishment, not a sign given that the idea of his liability to it had entered into any mind.5 If they cry “death to the ministers,” it is because they do not think it vengeance, but justice. Their sons, their brothers, their comrades, have been slain—the ministers, in their eyes, are the murderers. For death, death in their opinion is the proper return. They cannot seize nice distinctions between political murder and common murder. Numbers have suffered death for state crimes while Peyronnet was minister, and they well knew on what multitudes more it would have been inflicted if their enemies had prevailed. It appears to them right, to try the prisoner by his own law. Their feeling, howsoever we may consider it, is a moral one. It is their conscience which speaks. It is a sentiment of justice, unenlightened, indeed, and misplaced, but in short it is justice, such as they conceive it.

You owe every thing to their sense of justice. It is by their love of justice that your lives and properties are yours at this instant. Never since the beginning of the world was there seen in a people such a heroic, such an unconquerable attachment to justice. The poorest of the populace, with arms in their hands, were absolute masters of Paris and all that it contains; not a man went richer to his home that night. What an instrument, what a safeguard for all that is virtuous have you in such a people! but it is in their moral convictions that you must find your strength. Once forfeit the right of appealing to their justice, and what is there between you and the most enormous evils? Refuse a man favour, and he respects you the more; refuse him what he deems justice, and you excite his indignation. If what the people demand is in itself unjust, withhold it. Real justice is not to be sacrificed to opinion. But it is never unjust to execute upon a real criminal, what was the acknowledged law when he committed the offence. It is only postponing a reform, until it can be effected safely: and this reform, was it for the sake of the criminal that you desired it? No, certainly; but for the sake of the public. And when did a premature and brusque attempt to make men better, ever fail of making them worse? It is dangerous in a revolution to trifle with the moral feelings of a people. If you will not give to the people what they think justice, tremble lest they should take it.

We do not express this apprehension lightly. We hope better things from the Parisian people. Indeed, the moment of greatest danger is perhaps past; though there are appearances which, we confess, alarm us. But if, when Polignac was arrested, and brought from Granville to Paris, it had been known that when convicted he would not be put to death, who can answer that an indignant people might not have rendered a trial unnecessary? Spare the lives of political offenders when you can—spare them always, if that be practicable, and we will gladly give you our applause. But before you enact a law interdicting yourselves from inflicting capital punishment, make yourselves sure that no cases will arise, where what you have said you will not do, will be done for you by the avenging hand of the people themselves, preferring, in the fury excited by some outrage against their liberties or lives, what they deem the substance of justice, to the forms.

Do we, then, attempt to set up the rude, undisciplined feelings of untaught minds, as a rule of conduct for men of more enlightened consciences and more exercised understandings? Is the penal legislation of a country to remain for ever a literal copy of the barbarous conceptions of its least civilized inhabitants? Far from it. We only ask, that a purpose, of which we acknowledge the dignity and excellence, should be pursued by the employment of such means as a rational person would adopt in any other case of equal delicacy and difficulty. We cannot conceive any graver or more solemn occasion, than that of a deliberation which is to change the moral sentiments of a whole people. What zeal and perseverance will not be required, to place the objects and principles of punishment in their true light before the people, and to make them familiar with the right grounds of preference, presented in every possible aspect! What an insight into the human heart, to probe to the bottom the seat of the erroneous moral feeling which lies so deeply fixed in it; and what skill in guiding and working upon men for their good, to find the means of loosing the wrong association of ideas, which has wound itself round and round the mind till it has eaten into the substance itself. Nor can the abolition of capital punishment be considered as an insulated question; it involves the revision of your whole penal code. No nation in Europe is provided with unobjectionable secondary punishments. Your most accomplished jurists have enough to do, in fixing, if not their own ideas on the matter, at least those of the public, and you are to recollect, that this last is a condition which, for persons desiring to be the rulers of a free people, is not to be dispensed with. A despot, indeed, has no need of so much trouble. He gives his fiat, and the law is altered; the people, being accustomed to be so treated, acquiesce in the alteration, however disagreeable to them, and in time the new law gives birth to a new state of feeling. But the legislators of France know full well, that the French people are neither children nor slaves, and that they must henceforth be governed with the assent of their reason and of their conscience, or not at all. And was men’s reason or their conscience ever yet taken by storm?

By postponing the question of capital punishment, you would have prevented, perhaps, an insurrection; a few months or years later you would have carried your point, and retained, and even strengthened, the hold which it is of so much importance that you should not renounce, upon the moral sentiments of the people. All this you would have gained; but you would not have saved the lives of the ex-ministers. Were their lives, then, of sufficient value, to be saved from the course of law at such a price?

[1 ]After four debates on 1 Apr., 13 May, 24 May, and 7 June, 1830, the House of Commons voted to abolish the death penalty for forgery, against the wishes of the Home Secretary, Robert Peel, who had argued that, since most forgers were educated people, long incarceration or transportation or both were a harsher penalty than execution. The House of Lords reversed the decision on 13 July. (For the Commons debates, see PD, n.s., Vol. 23, cols. 1176-88; Vol. 24, cols. 674-80, 1014-15; Vol. 25, cols. 46-81; for the Lords, Journals of the House of Lords, 1830, LXII, 871-2.)

[2 ]Cf. the Gloria in the Book of Common Prayer.

[3 ]The lex talionis appeared in Roman Law as early as the Twelve Tables, 451-50 (see Aulus Gellius [b. ca. 130 ], The Attic Nights [Latin and English], trans. John C. Rolfe, 3 vols. [London: Heinemann, 1928], Vol. III, p. 412 [XX, 1, 14]), but is more usually associated with Exodus, 21:24-5.

[4 ]Hand-written signs demanding “Mort aux ministres” had appeared throughout the populous districts of Paris.

[5 ]Auguste de Marmont, duc de Raguse (1774-1852), member of a military and revolutionary family, was, in July 1830, the commander-in-chief of the royal guard to whom, on 25 July, Polignac gave the supreme command of the troops in the Paris garrison. Having failed to suppress the July Revolution, he accompanied Charles X into exile and his name was struck off the army list.