Crainquebille, Putois, Riquet and other profitable tales/The Law is dead but the Judge is living
II
THE LAW IS DEAD BUT THE JUDGE IS LIVING
FEW days later, said Jean Marteau, I happened to be lying in a thicket of the Bois de Vincennes. I had eaten nothing for thirty-six hours.
Monsieur Goubin wiped his eyeglasses. His eyes were kind but his glance was keen. He looked hard at Jean Marteau and said to him reproachfully:
"What? Again you had eaten nothing for twenty-four hours?"
"Again," replied Jean Marteau, "I had eaten nothing for twenty-four hours. But I was wrong. One ought not to go without food. It is not right. Hunger should be a crime like vagrancy. But as a matter of fact the two offences are regarded as one and the same; article 269 inflicts from three to six months' imprisonment on those who lack means of subsistence. Vagrancy, according to the code, is the condition of vagrants, of vagabonds, persons without any fixed dwelling or means of subsistence, who exercise no specific trade or profession. They are great criminals."
"It is curious," said Monsieur Bergeret, "that the state of vagrancy, punishable by six months' imprisonment and ten years' police supervision, is precisely the same as that in which the good St. Francis placed his companions at St. Mary of the Angels and the daughters of St. Clare. If St. Francis of Assisi and St. Anthony of Padua came to preach in Paris to-day they would run great risk of being clapped into the prison van and carried off to the police court. Not that I mean to denounce to the authorities the mendicant monks who now swarm among us. They possess means of livelihood; they exercise all manner of trades."
"They are respectable because they are rich," said Jean Marteau. "It is only the poor who are forbidden to beg. Had I been discovered beneath my tree I should have been thrown into prison and that would have been justice. Possessing nothing, I was assumed to be the enemy of property; and it is just to defend property against its enemies. The august task of the judge is to assure to every man that which belongs to him, to the rich his wealth, to the poor his poverty."
"I have reflected on the philosophy of law," said Monsieur Bergeret, "and I have perceived that the whole structure of social justice rests upon two axioms: robbery is to be condemned: the result of robbery is to be respected. These are the principles which assure the security of individuals and maintain order in the State. If one of these tutelary principles were to be disregarded the whole of society would fall to pieces. They were established in the beginning of time. A chief clothed in bearskin, armed with an axe of flint and with a sword of bronze, returned with his comrades to the stone entrenchments, wherein were enclosed the children of the tribe and the troops of women and of reindeer. They brought back with them youths and maidens from the neighbouring tribe and stones fallen from the sky, which were precious because out of them could be made swords which would not bend. The chief ascended a hillock in the middle of the enclosure and said: 'These slaves and this iron, which I have taken from men weak and contemptible are mine. Whosoever shall lay hands upon them shall be struck down by my axe.' Such is the origin of law. Its spirit is ancient and barbarous. And it is because justice is the ratification of all injustice that it reassures every one.
"A judge may be benevolent, for men are not all bad; the law cannot be benevolent because it is anterior to all ideas of benevolence. The changes which have been introduced into it down the ages have not altered its original character. Jurists have rendered it subtle, but they have left it barbaric. Its very ferocity causes it to be respected and regarded as august. Men are given to worship malevolent gods, and that which is not cruel seems to them not worth their adoration. The judged believe in the justice of laws. Their morality is that of the judges; both one and the other believe that a punished action is penal. In the police court or at the assizes I have often been touched to see how the accused and the judge agree perfectly in their ideas of good and evil. They have the same prejudices and a common morality."
"It cannot be otherwise," said Jean Marteau. "A poor creature who has stolen from a shop window a sausage or a pair of shoes has not on that account looked deeply and boldly into the very origin of law and the foundation of justice. And those who like ourselves are not afraid to behold in the origin of Codes a sanction of violence and iniquity, are incapable of stealing a halfpenny."
"But after all," said Monsieur Goubin, "there are just laws."
"Do you think so?" inquired Jean Marteau.
"Monsieur Goubin is right," said Monsieur Bergeret. "There are just laws. But law having been instituted for the defence of society, in its spirit cannot be more equitable than that society. As long as society is founded upon injustice the function of laws will be to defend and maintain that injustice. And the more unjust they are the worthier of respect they will appear. Notice also that, ancient as most of them are, they do not exactly represent present unrighteousness but past unrighteousnesses which is ruder and crasser. They are monuments of the Dark Ages which have lingered on into brighter days."
"But they are being improved," said Monsieur Goubin.
"They are being improved," said Monsieur Bergeret. "The Chamber and the Senate work at them when they have nothing else to do. But the heart of them remains; and it is bitter. To be frank, I should not greatly fear bad laws if they were administered by good judges. The law is unbending, it is said, I do not believe it. There is no text which may not receive various interpretations. The law is dead. The magistrate is living: he possesses this great advantage over the law. Unfortunately he seldom uses it. Generally he schools himself to be colder, more insensible, more dead than the code he applies. He is not human; he knows no pity. In him the caste spirit stifles all human sympathy.
"I am only speaking now of honest judges."
"They are in the majority," said Monsieur Goubin.
"They are in the majority," replied Monsieur Bergeret, "if we refer to common honesty and everyday morals. But is an approach to common honesty sufficient equipment for a man who, without falling into error or abuse has to wield the enormous power of punishing? A good judge should possess at once a kind heart and a philosophic mind. That is much to ask from a man who has his way to make and is determined to win advancement in his profession. Leaving out of account the fact that if he displays a morality superior to that of his day he will be hated by his fellows and will arouse universal indignation. For we condemn as immoral all morality which is not our own. All who have introduced any novel goodness into the world have met with the scorn of honest folk. That is what happened to President Magnaud."
"I have his judgments here, collected in a little volume with commentaries by Henri Leyret. When these judgments were pronounced they provoked the indignation of austere magistrates and virtuous legislators. They are stamped with noble thoughts and tender kindness. They are full of pity, they are human, they are virtuous. In the Law Courts President Magnaud was thought not to have a judicial mind, and the friends of Monsieur Méline accused him of lacking respect for property. And it is true that the considerations on which the judgments of President Magnaud repose are singular, for at every line one meets the thoughts of an independent mind and the sentiments of a generous heart."
Taking from the table a little crimson volume, Monsieur Bergeret turned over the pages and read:
"Honesty and delicacy are two virtues infinitely easier to practise when one lacks nothing than when one is destitute of everything."
"That which cannot be avoided ought not to be punished."
"In order to judge equitably the crime or the poor the judge should for the moment forget his own well-being, in order as far as possible to place himself in the sad situation of a being whom every one has deserted."
"In his interpretation of the law the judge should not merely bear in mind the special case which is submitted to him, he should take into consideration the wider consequences for good or for evil which his sentence may involve."
"It is the workman alone who produces and who risks his health or his life for the exclusive profit of his master, who endangers nothing but his capital."
"I have quoted almost haphazard," added Monsieur Bergeret, closing the book. "These are novel words. They are the echo of a great soul."