“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.”
MONSIEUR THOMAS
I ONCE knew an austere judge. His name was Thomas de Maulan. He was a country gentleman. During the seven years ministry of Marshal MacMahon he had become a magistrate in the hope that one day he would administer justice in the king’s name. He had principles which he believed to be unalterable, having never attempted to examine them. As soon as one examines a principle one discovers something beneath it and perceives that it was not a principle at all. Both his religious and his social principles Thomas de Maulan kept outside the range of his curiosity.
He was judge in the court of first instance in the little town of X —— , where I was then living. His appearance inspired esteem and even a certain sympathy. His figure was tall, thin, and bony, his face was sallow. His extreme simplicity gave him a somewhat distinguished air. He liked to be called Monsieur Thomas, not that he despised his social position, but because he considered himself too poor to support it. I knew enough of him to recognize that his appearance was not deceptive and that though weak in character and narrow in intelligence he had a noble soul. I discovered that he possessed high moral qualities. But, having had occasion to observe him in the fulfilment of his functions as examining magistrate and judge, I perceived that his very uprightness and his conception of duty rendered him cruel and sometimes completely deprived him of insight. His extreme piety caused him to be unconsciously obsessed by the ideas of sin and expiation, of crime and punishment; and it was obvious that in punishing criminals he experienced the agreeable sensation of purifying them. Human justice he regarded as a faint yet beautiful reflection of divine justice. In childhood he had been taught that suffering is good, that it is a merit in itself, a virtue, an expiation. This he believed firmly; and he held that suffering is the due of whomsoever has sinned. He loved to chastise. His punishments were the outcome of his kindness of his heart. Accustomed to give thanks to the God who, for his eternal salvation, afflicted him with toothache and colic as a punishment for Adam’s sin, he sentenced vagrants and vagabonds to imprisonment and reparation as one who bestows benefits. His legal philosophy was founded upon his catechism; his pitilessness proceeded from his directness and simplicity of mind. One could not call him cruel. But not being sensual neither was he sensitive. He had no precise physical idea of human suffering. His conception of it was purely moral and dogmatic. There was something mystic in his preference for the system of solitary confinement, and it was not without a certain joyfulness of heart and eye that one day he showed me over a fine prison which had recently been built in his district: a white thing, clean, silent, terrible; cells arranged in a circle, and the warder in the centre in an observation chamber. It looked like a laboratory constructed by lunatics for the manufacture of lunatics. And malevolent lunatics indeed are those inventors of the solitary system who in order to convert a wrongdoer into a moral being subject him to a régime which turns him into an imbe
cile or a savage. That was not the opinion of Monsieur Thomas. He gazed with silent satisfaction on those atrocious cells. At the back of his mind was the idea that the prisoner is never alone since God is with him. And his calm, self-satisfied glance seemed to say: “Here I have brought five or six persons face to face with their Creator and Sovereign Judge. There is no more enviable fate in the world.”
It fell to this magistrate’s lot to conduct the inquiry in several cases, among others in that of a teacher. Lay and clerical education were then at open war. The republicans having denounced the ignorance and brutality of the priests, the clerical newspaper of the district accused a lay teacher of having made a child sit on a red-hot stove. Among the country aristocracy this accusation found credence. Revolting details were related and the common gossip aroused the attention of justice. Monsieur Thomas, who was an honest man, would never have listened to his passions, had he known them to be passions. But he regarded them as duties because they were religious. He believed it to be his duty to consider complaints urged against a godless school, and he failed to perceive his extreme eagerness to consider them. I must not omit to say that he conducted the inquiry with meticulous care and infinite trouble. He conducted it according to the ordinary methods of justice, and he obtained wonderful results. Thirty school children, persistently interrogated, replied at first badly, afterwards better, and finally very well. After a month’s examination, they replied so well that they all gave the same answer. The thirty depositions agreed, they were identical, literally identical, and these children who on the first day said they had seen nothing, now declared with one unfaltering voice, employing exactly the same words, that their little schoolfellow had been seated bare-skinned, on a red-hot stove. Monsieur le Juge Thomas was congratulating himself on so satisfactory a result, when the teacher proved irrefutably that there had never been a stove in the school. Then Monsieur Thomas began to suspect that the children were lying. But what he never perceived was that he himself had unwittingly dictated their evidence and taught it to them by heart.
The prosecution was nonsuited. The teacher was dismissed the court after having been severely reprimanded by the judge, who strongly urged him in the future to restrain his brutal instincts. Outside his deserted school the priest’s scholars made a hullaballoo. And when he went out he was greeted with cries of “Ha! ha! Grille-Cul (Roast-back)”; and stones were thrown at him. The Inspector of Primary Schools being informed of the state of affairs, drew up a report stating that this teacher had no authority over his pupils and concluding that his immediate transference to another school would be advisable. He was sent to a village where a dialect was spoken which he did not understand. Even there he was called Grille-Cul. It was the only French term that was known there.
During my intercourse with Monsieur Thomas I learnt how all evidence given before an examining magistrate comes to be uniform in style. He received me in his room whilst with the assistance of his clerk he was examining a witness. I was about to withdraw, but he begged me to remain, saying that my presence would in no way interfere with a proper administration of justice.
I sat down in a corner and listened to the questions and answers:
“Duval, did you see the accused at six o’clock in the evening?”
“That is to say, Monsieur le Juge, my wife was at the window. Then she said to me: ‘There’s Socquardot going by!’”
“His presence under your window must have struck her as remarkable since she took the trouble to mention it to you particularly. And did the gait of the accused arouse your suspicion?”
“I will tell you how it was, Monsieur le Juge. My wife said to me: ‘There’s Socquardot going by!’ Then I looked and said ‘Why yes, it’s Socquardot!’”
“Precisely! Clerk, write down: At six o’clock in the evening, the couple Duval saw the accused loafing round the house and walking with a suspicious gait.”
Monsieur Thomas put a few more questions to the witness, who was a day labourer by occupation: he received replies and dictated to his clerk their translation into judge’s jargon. Then the witness listened to the reading of his evidence, signed it, bowed and withdrew.
“Why,” I asked, “do you not record the evidence as it is given you instead of translating it into words never used by the witness?”
Monsieur Thomas gazed at me with astonishment and replied calmly:
“I do not understand your meaning. I record the evidence as faithfully as possible. Every magistrate does. And in all the law reports there is not a single instance of evidence having been altered or distorted by a judge. If, in conformity with the invariable custom of my colleagues, I modify the exact terms used by the witnesses, it is because such witnesses as this Duval, whom you have just heard, express themselves badly, and it would be derogatory to the dignity of justice to record incorrect, low and frequently gross expressions when there is no point in doing so. But, my dear sir, I think you fail to realize the conditions of a judicial examination. You must bear in mind the object of the magistrate in recording and classifying evidence. It is not for his own enlightenment alone but for that of the tribunal. It is not enough for him to see the case clearly, it must be equally clear to the minds of the judges. He has therefore to bring into prominence those charges which are sometimes concealed beneath the incoherent or diffuse story of a witness or con- fused by the ambiguous replies of the accused. If it were to be registered without order or method the most convicting evidence would lose its point and the majority of criminals would escape punishment.”
“But surely,” I asked, “a proceeding which consists in fixing the wandering thoughts of witnesses must be very dangerous.”
“It would be if magistrates were not conscientious. But I never yet met a magistrate who was not deeply conscious of his duty. And yet I have sat on the Bench with Protestants, Deists and Jews. But they were magistrates.”
“At least you must admit, Monsieur Thomas, that your method possesses one disadvantage: when you read the written account of his evidence to the witness, he can hardly understand it, since you have introduced into it terms he is not accustomed to employ and the sense of which escapes him. What does your expression ‘suspicious gait’ convey to the mind of this labourer?”
He replied eagerly:
“I have thought of that, and against this danger I have taken the greatest precautions. I will give you an example. A short time ago a witness of a somewhat limited intelligence and of whose morals I was ignorant, appeared not to attend to the clerk’s reading of the witness’s evidence. I had it read a second time, having urged the deponent to give it his sustained attention. By what I could see he did nothing of the kind. Then in order to bring home to him a more correct appreciation of his duty and his responsibility I made use of a stratagem. I dictated to the clerk one final phrase which contradicted everything that had gone before. I asked the witness to sign. Then, just as he was putting pen to paper, I seized his arm. ‘Wretch!’ I cried, ‘you are about to sign a declaration contrary to the one you have made and by so doing to commit a crime’.”
“Well! and what did he say to you?”
“He replied piteously: ‘Monsieur le Juge, you are cleverer than I, you must know best what I ought to write.’
“You see,” added Monsieur Thomas, “that a judge anxious to fulfil his function well can guard himself against any danger of making a mistake. Believe me, my dear sir, judicial error is a myth.”
A SERVANT’S THEFT
ABOUT ten years ago, perhaps more, perhaps less, I visited a prison for women. It was an old chateau, built in the reign of Henry IV; and its high slate roofs frowned down upon a dark little southern town on the banks of a river. The governor of the prison had reached the age of superannuation. He wore a black wig and a white beard. He was an extraordinary governor. He had ideas of his own and kindly feelings. He had no illusions concerning the morals of his three hundred prisoners, but he did not consider them to be greatly inferior to the morals of any three hu
ndred women collected haphazard in a town.
“Here as elsewhere we have all sorts and conditions,” his gentle, tired glance seemed to say.
As we crossed the courtyard, a long string of prisoners was returning from a silent walk and going back to the workshops. Many of them were old and of hard, sullen aspect. My friend Dr. Cabane, who was with us, pointed out to me that nearly all these women had characteristic physical defects, that squinting was not uncommon among them, that they were degenerates and that nearly all were marked with the stigma of crime or at least of misdemeanour.
The governor slowly shook his head. I saw that he was disinclined to admit the theories of criminologists. He was evidently still convinced that in our social groups the guilty do not greatly differ from the innocent.
He took us to the workshops. We saw the bakers, the laundresses and the needlewomen at their tasks. The atmosphere of work and neatness imparted almost a cheerful air to the place. The governor treated the women kindly. The most stupid and the most perverse failed to exhaust his patience and his benevolence. His opinion was that one should excuse many things in those with whom one lives and that one should not ask too much even from misdemeanants and criminals. Unlike most persons, he did not require thieves and procuresses to be perfect because they were being punished. He had little faith in the moral efficacy of punishment, and he despaired of making his prison a school of virtue. Being far from the belief that persons are rendered better by suffering, he spared these unfortunate women as much suffering as possible. I do not know whether he was religious, but for him the idea of expiation had no moral significance.
Complete Works of Anatole France Page 365