criminal prosecution.

very innocent actions have been frequently punished with death. thus in england, richard iii., and edward iv., effected by the judges the condemnation of those whom they suspected of disaffection. such are not criminal processes; they are assassinations committed by privileged murderers. it is the last degree of abuse to make the laws the instruments of injustice.

it is said that the athenians punished with death every stranger who entered their areopagus or sovereign tribunal. but if this stranger was actuated by mere curiosity, nothing was more cruel than to take away his life. it is observed, in “the spirit of laws,” that this vigor was exercised, “because he usurped the rights of a citizen.”

but a frenchman in london who goes to the house of commons to hear the debates, does not aspire to the rights of a citizen. he is received with politeness. if any splenetic member calls for the clearing of the house, the traveller clears it by withdrawing; he is not hanged. it is probable that, if the athenians passed this temporary law, it was at a time when it was suspected that every stranger might be a spy, and not from the fear that he would arrogate to himself the rights of citizenship. every athenian voted in his tribe; all the individuals in the tribe knew each other; no stranger could have put in his bean.

we speak here only of a real criminal prosecution, and among the romans every criminal prosecution was public. the citizen accused of the most enormous crimes had an advocate who pleaded in his presence; who even interrogated the adverse party; who investigated everything before his judges. all the witnesses, for and against, were produced in open court; nothing was secret. cicero pleaded for milo, who had assassinated clodius, in the presence of a thousand citizens. the same cicero undertook the defence of roscius amerinus, accused of parricide. a single judge did not in secret examine witnesses, generally consisting of the dregs of the people, who may be influenced at pleasure.

a roman citizen was not put to the torture at the arbitrary order of another roman citizen, invested with this cruel authority by purchase. that horrible outrage against humanity was not perpetrated on the persons of those who were regarded as the first of men, but only on those of their slaves, scarcely regarded as men. it would have been better not to have employed torture, even against slaves.

the method of conducting a criminal prosecution at rome accorded with the magnanimity and liberality of the nation. it is nearly the same in london. the assistance of an advocate is never in any case refused. every one is judged by his peers. every citizen has the power, out of thirty-six jurymen sworn, to challenge twelve without reasons, twelve with reasons, and, consequently, of choosing his judges in the remaining twelve. the judges cannot deviate from or go beyond the law. no punishment is arbitrary. no judgment can be executed before it has been reported to the king, who may, and who ought to bestow pardon on those who are deserving of it, and to whom the law cannot extend it. this case frequently occurs. a man outrageously wronged kills the offender under the impulse of venial passion; he is condemned by the rigor of the law, and saved by that mercy which ought to be the prerogative of the sovereign.

it deserves particular remark that in the same country where the laws are as favorable to the accused as they are terrible for the guilty, not only is false imprisonment in ordinary cases punished by heavy damages and severe penalties, but if an illegal imprisonment has been ordered by a minister of state, under color of royal authority, that minister may be condemned to pay damages corresponding to the imprisonment.

proceedings in criminal cases among particular nations.

there are countries in which criminal jurisprudence has been founded on the canon law, and even on the practice of the inquisition, although that tribunal has long since been held in detestation there. the people in such countries still remain in a species of slavery. a citizen prosecuted by the king’s officer is at once immured in a dungeon, which is in itself a real punishment of perhaps an innocent man. a single judge, with his clerk, hears secretly and in succession, every witness summoned.

let us here merely compare, in a few points, the criminal procedure of the romans with that of a country of the west, which was once a roman province. among the romans, witnesses were heard publicly in the presence of the accused, who might reply to them, and examine them himself, or through an advocate. this practice was noble and frank; it breathed of roman magnanimity. in france, in many parts of germany, everything is done in secret. this practice, established under francis i., was authorized by the commissioners, who, in 1670, drew up the ordinance of louis xiv. a mere mistake was the cause of it.

it was imagined, on reading the code “de testibus” that the words, testes intrare judicii secretum, signified that witnesses were examined in secret. but secretum here signifies the chambers of the judge. intrare secretum to express speaking in secret, would not be latin. this part of our jurisprudence was occasioned by a solecism. witnesses were usually persons of the lowest class, and whom the judge, when closeted with them, might induce to say whatever he wished. these witnesses are examined a second time, always in secret, which is called, re-examination; and if, after re-examination, they retract their depositions, or vary them in essential circumstances, they are punished as false witnesses. thus, when an upright man of weak understanding, and unused to express his ideas, is conscious that he has stated either too much or too little — that he has misunderstood the judge, or that the judge has misunderstood him — and revokes, in the spirit of justice, what he has advanced through incaution, he is punished as a felon. he is in this manner often compelled to persevere in false testimony, from the actual dread of being treated as a false witness.

the person accused exposes himself by flight to condemnation, whether the crime has been proved or not. some jurisconsults, indeed, have wisely held that the contumacious person ought not to be condemned unless the crime were clearly established; but other lawyers have been of a contrary opinion: they have boldly affirmed that the flight of the accused was a proof of the crime; that the contempt which he showed for justice, by refusing to appear, merited the same chastisement as would have followed his conviction. thus, according to the sect of lawyers which the judge may have embraced, an innocent man may be acquitted or condemned.

it is a great abuse in jurisprudence that people often assume as law the reveries and errors — sometimes cruel ones — of men destitute of all authority, who have laid down their own opinions as laws. in the reign of louis xiv., two edicts were published in france, which apply equally to the whole kingdom. in the first, which refers to civil causes, the judges are forbidden to condemn in any suit, on default, when the demand is not proved; but in the second, which regulates criminal proceedings, it is not laid down that, in the absence of proof, the accused shall be acquitted. singular circumstance! the law declares that a man proceeded against for a sum of money shall not be condemned, on default, unless the debt be proved; but, in cases affecting life, the profession is divided with respect to condemning a person for contumacy when the crime is not proved; and the law does not solve the difficulty.

example taken from the condemnation of a whole family.

the following is an account of what happened to an unfortunate family, at the time when the mad fraternities of pretended penitents, in white robes and masks, had erected, in one of the principal churches of toulouse, a superb monument to a young protestant, who had destroyed himself, but who they pretended had been murdered by his father and mother for having abjured the reformed religion; at the time when the whole family of this protestant, then revered as a martyr, were in irons, and a whole population, intoxicated by a superstition equally senseless and cruel, awaited with devout impatience the delight of seeing five or six persons of unblemished integrity expire on the rack or at the stake. at this dreadful period there resided near castres a respectable man, also of the protestant religion, of the name of sirven, who exercised in that province the profession of a feudist. this man had three daughters. a woman who superintended the household of the bishop of castres, proposed to bring to him sirven’s second daughter, called elizabeth, in order to make her a catholic, apostolical and roman. she is, in fact, brought. she is by him secluded with the female jesuits, denominated the “lady teachers,” or the “black ladies.” they instruct her in what they know; they find her capacity weak, and impose upon her penances in order to inculcate doctrines which, with gentleness, she might have been taught. she becomes imbecile; the “black ladies” expel her; she returns to her parents; her mother, on making her change her linen, perceives that her person is covered with contusions; her imbecility increases; she becomes melancholy mad; she escapes one day from the house, while her father is some miles distant, publicly occupied in his business, at the seat of a neighboring nobleman. in short, twenty days after the flight of elizabeth, some children find her drowned in a well, on january 4, 1761.

this was precisely the time when they were preparing to break calas on the wheel at toulouse. the word “parricide,” and what is worse, “huguenot,” flies from mouth to mouth throughout the province. it was not doubted that sirven, his wife, and his two daughters, had drowned the third, on a principle of religion.

it was the universal opinion that the protestant religion positively required fathers and mothers to destroy such of their children as might wish to become catholics. this opinion had taken such deep root in the minds even of magistrates themselves, hurried on unfortunately by the public clamor, that the council and church of geneva were obliged to contradict the fatal error, and to send to the parliament of toulouse an attestation upon oath that not only did protestants not destroy their children, but that they were left masters of their whole property when they quitted their sect for another. it is known that, notwithstanding this attestation, calas was broken on the wheel.

a country magistrate of the name of londes, assisted by graduates as sagacious as himself, became eager to make every preparation for following up the example which had been furnished at toulouse. a village doctor, equally enlightened with the magistrate, boldy affirmed, on inspecting the body after the expiration of eighteen days, that the young woman had been strangled, and afterwards thrown into the well. on this deposition the magistrate issued a warrant to apprehend the father, mother, and the two daughters. the family, justly terrified at the catastrophe of calas, and agreeably to the advice of their friends, betook themselves instantly to flight; they travelled amidst snow during a rigorous winter, and, toiling over mountain after mountain, at length arrived at those of switzerland. the daughter, who was married and pregnant, was prematurely delivered amidst surrounding ice.

the first intelligence this family received, after reaching a place of safety, was that the father and mother were condemned to be hanged; the two daughters to remain under the gallows during the execution of their mother, and to be reconducted by the executioner out of the territory, under pain of being hanged if they returned. such is the lesson given to contumacy!

this judgment was equally absurd and abominable. if the father, in concert with his wife, had strangled his daughter, he ought to have been broken on the wheel, like calas, and the mother to have been burned — at least, after having been strangled — because the practice of breaking women on the wheel is not yet the custom in the country of this judge. to limit the punishment to hanging in such a case, was an acknowledgment that the crime was not proved, and that in the doubt the halter was adopted to compromise for want of evidence. this sentence was equally repugnant to law and reason. the mother died of a broken heart, and the whole family, their property having been confiscated, would have perished through want, unless they had met with assistance.

we stop here to inquire whether there be any law and any reason that can justify such a sentence? we ask the judge, “what madness has urged you to condemn a father and a mother?” “it was because they fled,” he replies. “miserable wretch, would you have had them remain to glut your insensate fury? of what consequence could it be, whether they appeared in chains to plead before you, or whether in a distant land they lifted up their hands in an appeal to heaven against you? could you not see the truth, which ought to have struck you, as well during their absence? could you not see that the father was a league distant from his daughter, in the midst of twenty persons, when the unfortunate young woman withdrew from her mother’s protection? could you be ignorant that the whole family were in search of her for twenty days and nights?” to this you answer by the words, contumacy, contumacy. what! because a man is absent, therefore must he be condemned to be hanged, though his innocence be manifest? it is the jurisprudence of a fool and a monster. and the life, the property, and the honor of citizens, are to depend upon this code of iroquois!

the sirven family for more than eight years dragged on their misfortunes, far from their native country. at length, the sanguinary superstition which disgraced languedoc having been somewhat mitigated, and men’s minds becoming more enlightened, those who had befriended the sirvens during their exile, advised them to return and demand justice from the parliament of toulouse itself, now that the blood of calas no longer smoked, and many repented of having ever shed it. the sirvens were justified.

erudimini, qui judicatis terram.

be instructed, ye judges of the earth.