A Mutual Benefit Society

spacer250

International Law

CHAPTER XIII:
OF JUSTICE AND POLITY

§ 158. A nation ought to make justice reign.

NEXT to the care of religion, one of the principal duties of a nation relates to justice. They ought to employ their utmost attention in causing it to prevail in the state, and to take proper measures for having it dispensed to every one in the most certain, the most speedy, and the least burdensome manner. This obligation flows from the object proposed by uniting in civil society, and from the social compact itself. We have seen (§ 15), that men have bound themselves by the engagements of society, and consented to divest themselves, in its favour, of a part of their natural liberty, only with a view of peaceably enjoying what belongs to them, and obtaining justice with certainly. The nation would therefore neglect her duty to herself, and deceive the individuals, if she did not seriously endeavour to make the strictest justice prevail. This attention she owes to her own happiness, repose, and prosperity. Confusion, disorder, and despondency will soon arise in a state, when the citizens are not sure of easily and speedily obtaining justice in all their disputes; without this, the civil virtues will become extinguished, and the society weakened.

§159. To establish good laws.

There are two methods of making justice flourish — good laws, and the attention of the superiors to see them executed. In treating of the constitution of a state (Chap. III.), we have already shown that a nation ought to establish just and wise laws, and have also pointed out the reasons why we cannot here enter into the particulars of those laws. If men were always equally just, equitable, and enlightened, the laws of nature would doubtless be sufficient for society. But ignorance, the illusions of self-love, and the violence of the passions, too often render these sacred laws ineffectual. And we see, in consequence, that all well-governed nations have perceived the necessity of enacting positive laws. There is a necessity for general and formal regulations, that each may clearly know his own rights, without being misled by self-deception. Sometimes even it is necessary to deviate from natural equity, in order to prevent abuses and frauds, and to accommodate ourselves to circumstances; and, since the sensation of duty has frequently so little influence on the heart of man, a penal sanction becomes necessary, to give the laws their full efficacy. Thus is the law of nature converted into civil law.1 It would be dangerous to commit the interests of the citizens to the mere discretion of those who are to dispense justice. The legislator should assist the understanding of the judges, force their prejudices and inclinations, and subdue their will, by simple, fixed, and certain rules. These, again are the civil laws.

§ 160. To enforce them.

The best laws are useless if they be not observed. The nation ought then to take pains to support them, and to cause them to be respected and punctually executed: with this view she cannot adopt measures too just, too extensive, or too effectual; for hence, in a great degree, depend her happiness, glory, and tranquillity.

§ 161. Functions and duties of the prince in this respect.

We have already observed (§ 41) that the sovereign, who represents a nation and is invested with its authority, is also charged with its duties. An attention to make justice flourish in the state must then be one of the principal functions of the prince; and nothing can be more worthy of the sovereign majesty. The emperor Justinian thus begins his book of the Institutes: Imperitoriam majestatem non solum armis decoratam, sed etiam legibus oportet esse armatam, ut utrumque tempus, et bellorum et pacis, recte possit gubernari. The degree of power intrusted by the nation to the head of the state, is then the rule of his duties and his functions in the administration of justice. As the nation may either reserve the legislative power to itself, or intrust it to a select body, — it has also a right, if it thinks proper, to establish a supreme tribunal to judge of all disputes, independently of the prince. But the conductor of the state must naturally have a considerable share in legislation, and it may even be entirely intrusted to him. In this last case, it is he who must establish salutary laws, dictated by wisdom and equity: but in all cases, he should be the guardian of the law; he should watch over those who are invested with authority, and confine each individual within the bounds of duty.

§ 162. How he is to dispense justice.

The executive power naturally belongs to the sovereign, — to every conductor of a people: he is supposed to be invested with it, in its fullest extent, when the fundamental laws do not restrict it. When the laws are established, it is the prince's province to have them put in execution. To support them with vigour, and to make a just application of them to all cases that present themselves, is what we call rendering justice. And this is the duty of the sovereign, who is naturally the judge of his people. We have seen the chiefs of some small states perform these functions themselves: but this custom becomes inconvenient, and even impossible in a great kingdom.

§ 163. He ought to appoint enlightened and upright judges.

The best and safest method of distributing justice is by establishing judges, distinguished by their integrity and knowledge, to take cognisance of all the disputes that may arise between the citizens. It is impossible for the prince to take upon himself this painful task: he cannot spare sufficient time either for the thorough investigation of all causes, or even for the acquisition of the knowledge necessary to decide them. As the sovereign cannot personally discharge all the functions of government, he should, with a just discernment, reserve to himself such as he can successfully perform, and are of most importance, — intrusting the others to officers and magistrates who shall execute them under his authority. There is no inconvenience in trusting the decision of a lawsuit to a body of prudent, honest, and enlightened men: — on the contrary it is the best mode the prince can possibly adopt; and he fully acquits himself of the duty he owes to his people in this particular, when he gives them judges adorned with all the qualities suitable to ministers of justice: he has then nothing more to do but to watch over their conduct, in order that they may not neglect their duty.

§ 164. The ordinary courts should determine causes relating to the revenue.

The establishment of courts of justice is particularly necessary for the decision of all fiscal causes, — that is to say, all the disputes that may arise between the subjects on the one hand, and, on the other, the persons who exert the profitable prerogatives of the prince. It would be very unbecoming, and highly improper for a prince, to take upon him to give judgment in his own cause: — he cannot be too much on his guard against the illusions of interest and self-love; and even though he were capable of resisting their influence, still he ought not to expose his character to the rash judgments of the multitude. These important reasons ought even to prevent his submitting the decision of causes in which he is concerned, to the ministers and counsellors particularly attached to his person. In all well-regulated states, in countries that are really states, and not the dominions of a despot, the ordinary tribunals decide all causes in which the sovereign is a party, with as much freedom as those between private persons.

§ 165. There ought to be established supreme courts of justice wherein causes should be finally determined.

The end of all trials at law is justly to determine the disputes that arise between the citizens. If, therefore, suits are prosecuted before an inferior judge, who examines all the circumstances and proofs relating to them, it is very proper, that, for the greater safety, the party condemned should be allowed to appeal to a superior tribunal, where the sentence of the former judge may be examined, and reversed, if it appear to be ill-founded. But it is necessary that this supreme tribunal should have the authority of pronouncing a definitive sentence without appeal: otherwise the whole proceeding will be vain, and the dispute can never be determined.

The custom of having recourse to the prince himself, by laying a complaint at the foot of the throne, when the cause has been finally determined by a supreme court, appears to be subject to very great inconveniences. It is more easy to deceive the prince by specious reasons, than a number of magistrates well skilled in the knowledge of the laws; and experience too plainly shows what powerful resources are derived from favour and intrigue in the courts of kings.

If this practice be authorized by the laws of the state, the prince ought always to fear that these complaints are only formed with a view of protracting a suit, and procrastinating a just condemnation. A just and wise sovereign will not admit them without great caution; and if he reverses the sentence that is complained of, he ought not to try the cause himself, but submit it to the examination of another tribunal, as is the practice in France. The ruinous length of these proceedings authorizes us to say that it is more convenient and advantageous to the state, to establish a sovereign tribunal, whose definitive decrees should not be subject to a reversal even by the prince himself. It is sufficient for the security of justice that the sovereign keep a watchful eye over the judges and magistrates, in the same manner as he is bound to watch all the other officers in the state, — and that he have power to call to an account and to punish such as are guilty of prevarication.

§ 166. The prince ought to preserve the forms of justice.

When once this sovereign tribunal is established, the prince cannot meddle with its decrees; and, in general, he is absolutely obliged to preserve and maintain the forms of justice. Every attempt to violate them is an assumption of arbitrary power, to which it cannot be presumed that any nation could ever have intended to subject itself.

When those forms are defective, it is the business of the legislator to reform them. This being done or procured in a manner agreeable to the fundamental laws, will be one of the most salutary benefits the sovereign can bestow upon his people. To preserve the citizens from the danger of ruining themselves in defending their rights, — to repress and destroy that monster, chicanery, — will be an action more glorious in the eyes of the wise man, than all the exploits of a conqueror.

§ 167. The prince ought to support the authority of the judges.

Justice is administered in the name of the sovereign; the prince relies on the judgment of the courts, and, with good reason, looks upon their decisions as sound law and justice. His part in this branch of the government is then to maintain the authority of the judges, and to cause their sentences to be executed; without which they would be vain and delusive; for justice would not be rendered to the citizens.

§ 168. Of distributive justice. The distribution of employments and rewards.

There is another kind of justice named attributive or distributive, which in general consists in treating every one according to his deserts. This virtue ought to regulate the distribution of public employments, honours, and rewards in a state. It is, in the first place, a duty the nation owes to herself, to encourage good citizens, to excite every one to virtue by honours and rewards, and to intrust with employments such persons only as are capable of properly discharging them. In the next place, it is a duty the nation owes to individuals, to show herself duly attentive to reward and honour merit. Although a sovereign has the power of distributing his favours and employments to whomsoever he pleases, and nobody has a perfect right to any post or dignity, — yet a man who by intense application has qualified himself to become useful to his country, and he who has rendered some signal service to the state, may justly complain if the prince overlooks them, in order to advance useless men without merit. This is treating them with an ingratitude that is wholly unjustifiable, and adapted only to extinguish emulation. There is hardly any fault that in the course of time can become more prejudicial to a state: it introduces into it a general relaxation; and its public affairs, being managed by incompetent hands, cannot fail to be attended with ill-success. A powerful state may support itself for some time by its own weight; but at length it falls into decay; and this is perhaps one of the principal causes of the revolutions observable in great empires. The sovereign is attentive to the choice of those he employs, while he feels himself obliged to watch over his own safety, and to be on his guard: but when once he thinks himself elevated to such a pitch of greatness and power as leaves him nothing to fear, he follows his own caprice, and all public offices are distributed by favour.

§ 169. Punishment of transgressors.

The punishment of transgressors commonly belongs to distributive justice, of which it is really a breach; since good order requires that malefactors should be made to suffer the punishments they have deserved. But, if we would clearly establish this on its true foundations, we must recur to first principles. The right of punishing, which in a state of nature belongs to each individual, is founded on the right of personal safety. Every man has a right to preserve himself from injury, and by force to provide for his own security against those who unjustly attack him. For this purpose he may, when injured, inflict a punishment on the aggressor, as well with the view of putting it out of his power to injure him for the future, or of reforming him, as of restraining, by his example, all those who might be tempted to imitate him. Now, when men unite in society, — as the society is thenceforward charged with the duty of providing for the safety of its members, the individuals all resign to it their private right of punishing. To the whole body, therefore, it belongs to avenge private injuries, while it protects the citizens at large. And as it is a moral person, capable also of being injured, it has a right to provide for its own safety, by punishing those who trespass against it; — that is to say, it has a right to punish public delinquents. Hence arises the right of the sword, which belongs to a nation, or to its conductor. When the society use it against another nation, they make war; when they exert it in punishing an individual, they exercise vindictive justice. Two things are to be considered in this part of government, — the laws, and their execution.

§ 170. Criminal laws

It would be dangerous to leave the punishment of transgressors entirely to the discretion of those who are invested with authority. The passions might interfere in a business which ought to be regulated only by justice and wisdom. The punishment pre-ordained for an evil action, lays a more effectual restraint on the wicked than a vague fear, in which they may deceive themselves. In short, the people, who are commonly moved at the sight of a suffering wretch, are better convinced of the justice of his punishment, when it is inflicted by the laws themselves. Every well-governed state ought then to have its laws for the punishment of criminals. It belongs to the legislative power, whatever that be, to establish them with justice and wisdom. But this is not a proper place for giving a general theory of them: we shall therefore only say that each nation ought, in this as in every other instance, to choose such laws as may best suit her peculiar circumstances.

§ 171. Degree of punishment.

We shall only make one observation, which is connected with the subject in hand, and relates to the degree of punishment. From the foundation even of the right of punishing, and from the lawful end of inflicting penalties, arises the necessity of keeping them within just bounds. Since they are designed to procure the safety of the state and of the citizens, they ought never to be extended beyond what that safety requires. To say that any punishment is just since the transgressor knew before-hand the penalty he was about to incur, is using a barbarous language, repugnant to humanity, and to the law of nature, which forbids our doing any ill to others, unless they lay us under the necessity of inflicting it in our own defence and for our own security. Whenever then a particular crime is not much to be feared in society, as when the opportunities of committing it are very rare, or when the subjects are not inclined to it, too rigorous punishments ought not to be used to suppress it. Attention ought also to be paid to the nature of the crime; and the punishment should be proportioned to the degree of injury done to the public tranquillity and the safety of society, and the wickedness it supposes in the criminal.

These maxims are not only dictated by justice and equity, but also as forcibly recommended by prudence and the art of government. Experience shows us that the imagination becomes familiarized to objects which are frequently presented to it. If, therefore, terrible punishments are multiplied, the people will become daily less affected by them, and at length contract, like the Japanese, a savage and ferocious character: — these bloody spectacles will then no longer produce the effect designed; for they will cease to terrify the wicked. It is with these examples as with honours: — a prince who multiplies titles and distinctions to excess, soon depreciates them, and makes an injudicious use of one of the most powerful and convenient springs of government. When we recollect the practice of the ancient Romans with respect to criminals — when we reflect on their scrupulous attention to spare the blood of the citizens, — we cannot fail to be struck at seeing with how little ceremony it is now-a-days shed in the generality of states. Was then the Roman republic but ill governed? Docs better order and greater security reign among us? — It is not so much the cruelty of the punishments, as a strict punctuality in enforcing the penal code, that keeps mankind within the bounds of duty: and if simple robbery is reserved to check the hand of the murderer?

§ 172. Execution of the laws.

The execution of the laws belongs to the conductor of the state: he is intrusted with the care of it, and is indispensably obliged to discharge it with wisdom. The prince then is to see that the criminal laws be put in execution; but he is not to attempt in his own person to try the guilty. Besides the reasons we have already alleged in treating of civil causes, and which are of still greater weight in regard to those of a criminal nature — to appear in the character of a judge pronouncing sentence on a wretched criminal, would ill become the majesty of the sovereign, who ought in every thing to appear as the father of his people. It is a very wise maxim commonly received in France, that the prince ought to reserve to himself all matters of favour, and leave it to the magistrates to execute the rigour of justice. But then justice ought to be exercised in his name, and under his authority. A good prince will keep a watchful eye over the conduct of the magistrates; he will oblige them to observe scrupulously the established forms, and will himself take care never to break through them. Every sovereign who neglects or violates the forms of justice in the prosecution of criminals, makes large strides towards tyranny; and the liberty of the citizens is at an end when once they cease to be certain that they cannot be condemned, except in pursuance of the laws, according to the established forms, and by their ordinary judges. The custom of committing the trial of the accused party to commissioners chosen at the pleasure of the court, was the tyrannical invention of some ministers who abused the authority of their master. By this irregular and odious procedure, a famous minister always succeeded in destroying his enemies. A good prince will never give his consent to such a proceeding, if he has sufficient discernment to foresee the dreadful abuse his ministers may make of it. If the prince ought not to pass sentence himself — for the same reason, he ought not to aggravate the sentence passed by the judges.

§ 173. Right of pardoning

The very nature of government requires that the executor of the laws should have the power of dispensing with them when this may be done without injury to any person, and in certain particular cases where the welfare of the state requires an exception. Hence the right of granting pardons is one of the attributes of sovereignly. But, in his whole conduct, in his severity as well as his mercy, the sovereign ought to have no other object in view than the greater advantage of society. A wise prince knows how to reconcile justice with clemency — the care of the public safety with that pity which is due to the unfortunate.

§ 174. Internal police.

The internal police consists in the attention of the prince and magistrates to preserve every thing in order. Wise regulations ought to prescribe whatever will best contribute to the public safety, utility, and convenience; and those who are invested with authority cannot be too attentive to enforce them. By a wise police, the sovereign accustoms the people to order and obedience, and preserves peace, tranquillity, and concord among the citizens. The magistrates of Holland are said to possess extraordinary talents in this respect: — a better police prevails in their cities, and even their establishments in the Indies, than in any other places in the known world.

§ 175. Duel, or single combat.

Laws and the authority of the magistrates having been substituted in the room of private war, the conductors of a nation ought not to suffer individuals to attempt to do themselves justice, when they can have recourse to the magistrates. Duelling — that species of combat, in which the parties engage on account of a private quarrel — is a manifest disorder repugnant to the ends of civil society. This frenzy was unknown to the ancient Greeks and Romans, who raised to such a height the glory of their arms: we received it from barbarous nations who knew no other law but the sword. Louis XIV. deserves the greatest praise for his endeavours to abolish this savage custom.(54)

§ 176. Means of putting a stop to this disorder.

But why was not that prince made sensible that the most severe punishments were incapable of curing the rage for duelling? They did not reach the source of the evil; and since a ridiculous prejudice had persuaded all the nobility and gentlemen of the army, that a man who wears a sword is bound in honour to avenge with his own hand the least injury he has received; this is the principle on which it is proper to proceed. We must destroy this prejudice, or restrain it by a motive of the same nature. While a nobleman, by obeying the law, shall be regarded by his equals as a coward and as a man dishonoured — while an officer in the same case shall be forced to quit the service — can you hinder his fighting by threatening him with death? On the contrary, he will place a part of his bravery in doubly exposing his life in order to wash away the affront. And, certainly, while the prejudice subsists, while a nobleman or an officer cannot act in opposition to it, without embittering the rest of his life, I do not know whether we can justly punish him who is forced to submit to his tyranny, or whether he be very guilty with respect of morality. That worldly honour, be it as false and chimerical as you please, is to him a substantial and necessary possession, since without it he can neither live with his equals, nor exercise a profession that is often his only resource. When, therefore, any insolent fellow would unjustly ravish from him that chimera so esteemed and so necessary, why may he not defend it as he would his life and property against a robber? As the state does not permit an individual to pursue with arms in his hand the usurper of his property, because he may obtain justice from the magistrate — so, if the sovereign will not allow him to draw his sword against the man from whom he has received an insult, he ought necessarily to take such measures that the patience and obedience of the citizen who has been insulted shall not prove prejudicial to him. Society cannot deprive man of his natural right of making war against an aggressor, without furnishing him with some other means of securing himself from the evil his enemy would do him. On all those occasions where the public authority cannot lend us its assistance, we resume our original and natural right of self-defence. Thus a traveller may, without hesitation, kill the robber who attacks him on the highway; because it would, at that moment, be in vain for him to implore the protection of the laws and of the magistrate. Thus a chaste virgin would be praised for taking away the life of a brutal ravisher who attempted to force her to his desires.

Till men have got rid of this Gothic idea, that honour obliges them, even in contempt of the laws, to avenge their personal injuries with their own hands, the most effectual method of putting a stop to the effects of this prejudice would perhaps be to make a total distinction between the offended and the aggressor — to pardon the former without difficulty, when it appears that his honour has been really attacked — and to exercise justice without mercy on the party who has committed the outrage. And as to those who draw the sword for trifles and punctilios, for little piques, or railleries in which honour is not concerned, I would have them severely punished. By this means a restraint would be put on those peevish and insolent folks who often reduce even the moderate men to a necessity of chastising them. Every one would be on his guard, to avoid being considered as the aggressor; and with a view to gain the ad vantage of engaging in duel (if unavoidable) without incurring the penalties of the law, both parties would curb their passions; by which means the quarrel would fall of itself, and be attended with no consequences. It frequently happens that a bully is at bottom a coward; he gives himself haughty airs, and offers insult, in hopes that the rigour of the law will oblige people to put up with his insolence. And what is the consequence? — A man of spirit will run every risk, rather than submit to be insulted: the aggressor dares not recede: and a combat ensues, which would not have taken place, if the latter could have once imagined that there was nothing to prevent the other from chastising him for his presumption — the offended person being acquitted by the same law that condemns the aggressor.

To this first law, whose efficacy would, I doubt not, be soon proved by experience, it would be proper to add the following regulations: — 1. Since it is an established custom that the nobility and military men should appear armed, even in time of peace, care should be taken to enforce a rigid observance of the laws which allow the privilege of wearing swords to these two orders of men only. 2. It would be proper to establish a particular court, to determine, in a summary manner, all affairs of honour between persons of these two orders. The marshals' court in France is in possession of this power; and it might be invested with it in a more formal manner and to a greater extent. The governors of provinces and strong places, with their general officers — the colonels and captains of each regiment — might, in this particular, act as deputies to the marshals. These courts, each in his own department, should alone confer the right of wearing a sword. Every nobleman at sixteen or eighteen years of age, and every soldier at his entrance into the regiment, should be obliged to appear before the court to receive the sword. 3. On its being there delivered to him, he should be informed that it is intrusted to him only for the defence of his country; and care might be taken to inspire him with true ideas of honour. 4. It appears to me of great importance to establish, for different cases, punishments of a different nature. Whoever should so far forget himself, as, either by word or deed, to insult a man who wears a sword, might be degraded from the rank of nobility, deprived of the privilege of carrying arms, and subjected to corporal punishment — even the punishment of death, according to the grossness of the insult: and, as I before observed, no favour should be shown to the offender in case a duel was the consequence, while at the same time the other party should stand fully acquitted. Those who fight on slight occasions, I would not have condemned to death, unless in such cases where the author of the quarrel — he, I mean, who carried it so far as to draw his sword, or to give the challenge — has killed his adversary. People hope to escape punishment when it is too severe; and, besides, a capital punishment in such cases is not considered as infamous. But let them be ignominiously degraded from the rank of nobility and the use of arms, and forever deprived of the right of wearing a sword, without the least hope of pardon: this would be the most proper method to restrain men of spirit, provided that due care was taken to make a distinction between different offenders, according to the degree of the offence. As to persons below the rank of nobility, and who do not belong to the army, their quarrels should be left to the cognisance of the ordinary courts, which in case of bloodshed should punish the offenders according to the common laws against violence and murder. It should be the same with respect to any quarrel that might arise between a commoner and a man entitled to carry arms: it is the business of the ordinary magistrate to preserve older and peace between those two classes of men, who cannot have any points of honour to settle the one with the other. To protect the people against the violence of those who wear the sword, and to punish the former severely if they should dare to insult the latter, should further be, as it is at present, the business of the magistrate,

I am sanguine enough to believe that these regulations, and this method of proceeding, if strictly adhered to, would extirpate that monster, duelling, which the most severe laws have been unable to restrain. They go to the source of the evil, by preventing quarrels, and oppose a lively sensation of true and real honour to that false and punctilious honour which occasions the spilling of so much blood. It would be worthy a great monarch to make a trial of it: its success would immortalize his name: and by the bare attempt he would merit the love and gratitude of his people.


1. See a dissertation on this subject, in the Loisir Philosophique, p. 71.

(54) As to the legal view of the offence of duelling in England, see 6 East Rep. 260; 2 East Rep. 581; 2 Barn. & Ald. 462 and Burn's J. 266 ed. tit — "Duelling,"