§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 sovereignty. But, in his whole conduct, in his severity as well as in 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.
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. <84>
Laws and the authority of the magistrates having been substituted in the room of private war, the conductor 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 phrenzy 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.
§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 its tyranny, or whether he be very guilty with respect to 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; <85> 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 most 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 advantage 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 its 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 <86> 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 shewn 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,
