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THE proceedings in the French courts of justice are in unison with those traits of national character which are so strikingly developed in public and private life, throughout the greatest and freest and wisest country upon the face of the earth. "Greatest and wisest," may pass. It would be lost labor to call the facts in question, or to suggest to a Frenchman any doubts derived from the history of the past or from a comparative examination of the present. But I did venture once to raise a doubt as to the exclusive claim to true "freedom," which was made by a naval officer of some reputation attach ed to the Department of the Marine, who was disposing very summarily of the pretensions of other nations, and exalting very grandiloquently those of his own. He had visited New York in a French ship of war; and though he had never been out of the city, still he had returned with a perfect knowledge of the country, and a full determination to see in all its institutions that inferiority which a Frenchman finds or fancies everywhere. When he spoke of the greater freedom which was enjoyed in France than in the United States, and when I ventured rather to doubt than deny the proposition, though his contradiction assumed the polite shape of "pardonnez-moi," and his language was unexceptionably civil, yet there was no mistaking his

VOL. XI.--NO. XLIX.

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expressive look or manner, which said, as plainly as looks and manners could say, Voilà an ignorant foreigner, who can't appreciate the character of the Great Nation.

From pure malice I pushed the discussion from general assertion to particular facts. I asked him if he had found any conscription in the United States? He did not know. Any army parading the streets prepared to repress all movements, political or criminal? He had not seen any. Any armed police, municipal guards, gensd'armerie or other force, under whatever names it abounds in French cities, towns, villages and fields? It was a subject of which he knew nothing. Any central authority, pushing its ramifications throughout the country, and without whose consent, direct or indirect, a road cannot be repaired, a bridge constructed, a mill built, a forge or tanyard established, a school kept, a church opened, a political meeting held, a public banquet given, nor a play exhibited? Any regulations by which a newspaper cannot be established without a deposit of 200,000fr., nor printed without being stamped, and which provide for a vast multitude of other interferences in the affairs of life, pressing upon industry and enterprise, which I had neither time nor patience to recapitulate? These small matters entered for nothing into his estimate of

true liberty, and he knew nothing of them. I asked him what was the practical remedy in France, by which a man arrested by the police could procure an immediate examination of his case, and be discharged, if innocent. He could not point out any, as indeed I well knew there was none. It has just been remarked in the "Journal des Débats," that equality is dearer to a Frenchman than liberty. It is so. They have had the good feeling to abolish all the feudal oppressions and aristocratical nonsense which ages of misgovernment had established, but the principles of individual freedom have yet much progress to make before they can enter into competition with the security afforded by English and American law. No process analogous to that of our writ of HabeasCorpus is known to French jurisprudence. Instances of individual oppression are no doubt rare,-perhaps, I might say, almost unknown; but this result is rather owing to the spirit of the age, and the wise moderation of the government, than to any operating protecting principle in the law itself. Let me not, however, be misunderstood. The days of lettres de cachet, when the executive power could seize a person because he had offended a favorite or a minion, or something still worse, have disappeared never to return. No person can be imprisoned but by the judicial authority. But this authority is too extensive, according to our notions of practical security; or rather, we might say, it is left too much without salutary checks. Arrests may be made at the discretion of the magistrates, without those circumstances of probable guilt which with us are indispensable; and as there is no legal provision for the termination of the proceedings within a limited time, these may be longer or shorter as circumstances may dictate. In political accusations, where the passions are awakened, and where the government is interested in the result, it were idle to expect that this fundamental defect in criminal jurisprudence should not sometimes be revealed by practical injustice. The same elements of oppression were formerly the reproach of the British laws, as their efficient remedy has been the glory of British legislation. Strange as it may appear, I do not re

et that in the French Chambers,

nor in the eight or ten journals of Paris which, unfortunately, lead the public opinion of France, instead of following it, this subject has been seriously brought forward with a view to any practical redress. It has been occasionally mooted both at the tribune and in the press, as have a thousand other topics, practicable and impracticable, but it has disappeared before some temporary exciting question, of no real interest to the millions, but where the words honor and glory could be repeated to satiety by the deputies and by the journalists. There is a highly enlightened American here, a shrewd observer of passing events, as well as a just appreciater of the French character. He told me that during the interminable discussions arising out of the affairs of the East, he had the curiosity to count the number of times these catch-words, these shibboleths of the French statesmen, were repeated in the journals of Paris. I wish I had kept a memorandum of the amount, but I did not, and I am afraid to state my impression, lest I should make a larger demand upon the reader's credulity, than he might be disposed to grant. However, the number was as enormous as it was characteristic.

This defect of the French law, on the subject of personal liberty, is the more to be deplored, as, in cases of oppression, there is not that resort for redress to a public prosecution or a private suit, which makes part of the system of remedies provided by the Anglo-Saxon code. No legal proceedings can be instituted against a public officer in France, for any act done under color of his duty, without the previous assent of a great political body of the state, called the "Conseil d' Etat." This arbitrary provision made no part of the ancient French law, but it was contrived during the reign of Napoleon, in order to strengthen the authority of the government by rendering its functionaries independent of all control but its own. And it has been found so convenient for the depositaries of power, that it has survived the revolutions which have since taken place, and yet exists in full rigor. It may well be supposed, that, as a practical remedy for the redress of wrongs committed by the order of the government, or justified by it, such a provision is perfectly illusory; and while I am

writing these remarks, the journals of Paris are furnishing a proof that this shield of power between the wrong doer and the oppressed is interposed now with as much facility as in the palmiest days of the imperial régime. I quote the paragraph which is an extract from "Le Temps," December 21, 1841:

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The Council of the State, which had to pronounce upon the authority demanded by Mr. Isambert, a member of the Chamber of Deputies and of the Court of Cassation, to pursue in justice Mr. Jubelin, ex-Governor of Guadeloupe, has refused its consent to the application."

One of the earliest and most untoward signs which the progress of the French Revolution presented to the lover of rational liberty, was the eagerness with which questions of dress, of uniform, and of display, were discussed, and the earnestness with which they were settled. In the midst of deeds of blood, such as the world had never witnessed, and which, it is to be hoped, will never again be exhibited in the midst of the most serious projects for levelling down ancient institutions and for building up new ones -for defending the very heart of the country, and for carrying a war of arms and opinions among almost every other nation-a grave debate would arise respecting the color of a municipal officer's scarf, the uniform of a deputy, and, later in the shifting of the scenes, the embroidered coat of a Director, or the robe of a Consul. This taste for external show yet exists, though the deputies have thus far resisted all the efforts which have been made to induce them to put on a uniform; and they alone are the privileged persons who are permitted to enter the Tuileries, upon great days of reception, in a plain costume. But the predisposition to assimilate, by the external appearance, conditions the most opposite in their duties to the military state, is not less striking than ridiculous. It would seem, that the man of war is par excellence honorable, and that the officers of other employments are more respected as they assume more nearly his official badges. This tendency to military display is a bad augury for the progress of liberal institutions. But it is one of the first things which

strikes the traveller arriving from England or from the United States, and the incongruities it reveals are not a little amusing. The impatient seaworn traveller, when about to put foot upon the shore, is accosted by a policeman, covered with an enormous chapeau and girded with a formidable sword, who demands his passport, and bars his progress till he finds all is, as they say, "en règle," and that the western republican does not come to overturn the constitutional throne of the dynasty of July. Then he is seized by a Douanier, equally armed cap-a-piè, and conducted to the depôt, where he is examined to ascertain that he carries upon his person no luckless cigar, nor piece of tobacco, by which the revenue of the country may be defrauded. Then he is free to seek his hotel, but, upon the route, if he passes a street where repairs are making, he will again find a formidable sword with some miserable-looking creature attached to it, watching a pile of stones or an open ditch, to prevent accidents. If he enters a church, he will meet the beadle at the door with a chapeaubras bordered with gold lace, a red coat with ample folds, a long spear or halbert in his hand, and the eternal sword, ready to conduct the procession through the sounding aisles of the venerable and impressive edifice. If a funeral procession passes him, the sword is there; if an octroi employé at the gate of a town searches his baggage, he does it sword by his side; and by whatever route, land or sea, he leaves the country, he is bowed out, with all politeness, by some agent of the police or treasury, in the prescribed costume, and girded with this ever-present emblem of authority. All this is not merely laughable; it is unfortunately much worse. It is a continued display of physical force. It is an eternal lesson which teaches that the moral power of the laws is nothing, but that brute strength is everything. There is already too much military spirit in France for her own good, as well as for the peace of the world, even when restrained within the narrowest limits by a prudent government, without encouraging its progress by these visible proofs of the all-pervading efficacy of a military organization.

But I am led from my object, which

was to describe a characteristic scene in a French court of justice. And, as I am in rather a rambling vein, I may indulge in other episodes before I proceed to my principal action.

The magistracy of France, as a body, enjoys a large share of the public confidence. It must deserve it; for so many are the subjects of discussion which occupy the public press, so free the right of discussion, and so warm the passions which are enlisted, that were the tribunals of justice ignorant, or corrupt, or incompetent, there would be enough to proclaim and denounce their unworthiness. I have no doubt but that the administration of the law between man and man is as able and pure in France as in any other country in the world. But I am going much farther than this; and far enough to shock many a prejudice which believes, with the firmest conviction, that the old code of the common law is the wisest system of jurisprudence which the world has ever seen, and that Lyttelton and Coke, and their metaphysical successors, are the ablest commentators which ever guided the human intellect in its search after truth. For my part, I consider it a reproach to our age and country, that a system should yet govern all the relations of society among us, all the rights of persons and of property, indeed of life itself, which is at the same time so rude in its principles and artificial, as contradistinguished from simple, in its procedure-unwritten, and therefore substituting the legislation of courts and commentators for that of responsible representative bodies-which was founded upon a policy whose barbarism was cloaked by the word feudalthat grew up in the darkest ages-that pressed almost equally upon mind and body, and that has disappeared before the advancing reason of mankind; while, to crown the absurdity, this system of jurisprudence is almost unknown to the immense mass upon whom it operates, and but darkly and doubtfully shadowed out to the chosen few who are the priests of the sanctuary, and whose oracles are almost as hidden as were those of the expounders of Delphi. "Great is Diana of the Ephesians," was the rallying cry of those who were attached by their duties to the temple of Ephesus; and a similar schtiment pervades human

nature in all the great departments of life. We are prone-honestly, no doubt-to magnify the advantages and importance of the pursuits to which we are devoted; and, with our system of jurisprudence, those who profess it have inherited as a dogma not to be doubted, that the English common law is "the perfection of human reason." It is my deliberate opinion, confirmed by the observation of every day, that much of it is the perfection of human nonsense. What can be more absurd than a judicial code which gravely permits one of the parties to call the other before a court of justice, where the whole cause is examined, the witnesses are heard, the verdict rendered, and the judgment given, and then allows the other party to carry the proceedings before another tribunal, administering an entirely different system of jurisprudence, which reverses, in effect, all that had previously been done, and establishes the right of the opposite party? And yet this solemn farce is every day acted in almost every state in the Union, and we are so familiarized to this complicated procedure, under the names of common law and chancery jurisdiction, that every effort to simplify it and to consolidate these discordant principles into a single system, administered at one time and by the same tribunal, as is done in every other country under heaven except England and the United States, has been heretofore useless and still threatens to be so.

I am not about to pursue this investigation, and to present a catalogue raisonné of the anomalies and inconsistencies of our legal code. It is a task for which I have neither time nor talent. I have often wished that some shrewd observer, adequate to its accomplishment, divesting himself of professional prejudices, would undertake this labor, one of the most useful, in the present state of society, which could be performed. But I must quit this topic and pass to my more immediate object; and as in the sequel I propose to relate an anecdote characteristic of the proceedings in the French tribunals, I will briefly call the attention of the reader to a remarkable difference in the progress of judicial investigation in France and the United States.

With us, as is well known, the indictment, or in other words the charge

commit him. On the contrary it seems to me much more rational to encourage the party to disclose the truth. By this means, the great ends of justice would be much better attained. There is no fear that innocence would suffer. No innocent man will avow his guilt. It is the guilty only who by silence or prevarication seek to escape the penalty of their crimes.

I was forcibly impressed with the absurdity of the prescribed formula in our criminal jurisprudence, by a fact that was stated in the journals which published accounts of the proceedings of the court at Utica, where McLeod was recently tried and acquitted. And by-the-bye, no American in Europe can have failed to observe the favorable effect which that trial has produced upon our public character throughout this quarter of the world. The gravity of the question and the consequences involved in it, and I may add the pre

which is preferred against the accused, is a contrivance as little calculated to attain its object, as human ingenuity could well devise. It ought to have two great ends, one to give proper notice to the defendant, of the accusation against him, that he may be prepared to meet it, and to the officers charged with the trial, whether called judges or jurors, that they may know to what facts their attention is to be directed; and the other, that sufficient certainty may exist, by which the acquittal or conviction may always prevent a subsequent prosecution. A plain man, who had never wandered in the mazes of legal metaphysics, would say, without hesitation, that the true mode of effecting these objects would be by preparing a clear and succinct statement of the circumstances attending each case. But alas for the weakness of common sense! It is not thus the Justinians of our code went to work, when they established its principle-diction of the English journals-always nor is it thus that its expounders administer it, when required to decide upon the liberty, perhaps upon the life, of the unfortunate persons brought be fore them. The variety of human actions is endless. But as if to show its contempt of this eternal truth, the law has prepared certain forms for the various classes of offences, and every succeeding crime is described in the identical words which were employed in the description of the immense number which preceded it. The only difference that exists is as to the day and place; and to render the whole process if possible still more absurd, if such a term may be applied to so grave a subject, these incidents are not required to be truly stated, and the indictment may name any day and place, and the proof will apply, as every lawyer knows, to any other.

The French law avoids this absurdity. The act of accusation is a narrative of the circumstances as they occurred, plainly prepared, and giving therefore to the court and the party all the necessary information. When the defendant is placed at the bar, he is questioned by the court, and he is free to answer or not, as he pleases. I have never been able to see the wisdom of that procedure in our tribunals, which leads the court to caution the defendant against the confession of his guilt, or against saying anything which may

inclined to magnify the difficulties to which the state of our society is exposed, but which are as the small dust of the balance when contrasted with the open and covert evils which in Europe are preparing for mighty changes had fixed the attention of Christendom upon the conduct of the tribunal charged with the fate of McLeod, and with peace or war between two great countries. And well did the court, and bar, and jury, and spectators, issue from that trial. The dignity and impartiality of the proceedings, the learning and patience of the judge, the able efforts of the respective counsel, tempered with a just consideration for the rights and feelings of their opponents, and the admirable conduct of the public, within and without the walls of the court-room, were as honorable to the character of our country as they seem to have been unexpected to Europe. Certainly the crisis through which England and the United States have passed, connected with this affair, was sufficiently alarming to excite the apprehension of all reflecting men in both countries, and it is to be hoped, that a similar question will not again present itself for solution. But should it come, we can ask no more honorable termination, than that which at Utica released McLeod from his danger, and two kindred people from the alarm of war.

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