« AnteriorContinuar »
The proceedings in the French courts expressive look or manner, which said, of justice are in unison with those traits as plainly as looks and manners could of national character which are so say, Voilà an ignorant foreigner, who strikingly developed in public and pri- can't appreciate the character of the vate life, throughout the greatest and Great Nation. freest and wisest country upon the face From pure malice I pushed the disof the earth. “Greatest and wisest," cussion from general assertion to parmay pass. It would be lost labor to ticular facis. I asked him if he had call the facts in question, or to suggest found any conscription in the United to a Frenchman any doubts derived States ? 'He did not know. Any army from the history of the past or from a parading the streets prepared to repress comparative examination of the pre- all movements, political or criminal ? sent. But I did venture once to raise He had not seen any. Any armed poa doubt as to the exclusive claim to lice, municipal guards, gensd'armerie true “ freedom,” which was made by a or other force, under whatever names naval officer of some reputation attach- it abounds in French cities, towns, ed to the Department of the Marine, villages and fields ? It was a subject who was disposing very summarily of which he knew nothing. Any cenof the pretensions of other nations, tral authority, pushing its ramifications and exalting very grandiloquently those throughout the country, and without of his own. He had visited New York whose consent, direct or indirect, a in a French ship of war; and though road cannot be repaired, a bridge conhe had never been out of the city, still structed, a mill built, a forge or tanhe had returned with a perfect know- yard established, a school kept, a ledge of the country, and a full deter- church opened, a political meeting mination to see in all its institutions held, a public banquet given, nor a that inferiority which a Frenchman play exhibited ? Any regulations by finds or fancies everywhere. When which a newspaper cannot be estabhe spoke of the greater freedom which lished without a deposit of 200,000fr., was enjoyed in France than in the nor printed without being stamped, and United States, and when I ventured which provide for a vast multitude of rather to doubt than deny the proposi- other interferences in the affairs of life, tion, though his contradiction assuined pressing upon industry and enterprise, the polite shape of “ pardonnez-moi,” which I had neither time nor patience and his language was unexceptionably to recapitulate?. These small matters civil, yet there was no mistaking his entered for nothing into his estimate of
VOL. XI.--NO. XLIX.
true liberty, and he knew nothing of nor in the eight or ten journals of Paris them. I asked him what was the which, unfortunately, lead the public practical remedy in France, by which opinion of France, instead of following à man arrested by the police could it, this subject has been seriously procure an immediate examination of brought forward with a view to any his case, and be discharged, if innocent. practical redress. It has been occaHe could not point out any, as indeed sionally mooted both at the tribune I well knew there was none. It has and in the press, as have a thousand just been remarked in the “ Journal other topics, practicable and impracticades Débats,” that equality is dearer to ble, but it has disappeared before some a Frenchman than liberty. It is so. temporary exciting question, of no real They have had the good feeling to interest to the millions, but where the abolish all the feudal oppressions and words honor and glory could be repeataristocratical nonsense which ages of ed to satiety by the deputies and by misgovernment had established, but the journalists. There is a highly enthe principles of individual freedom lighiened American here, a shrewd have yet much progress to make be observer of passing events, as well as fore they can enter into competition a just appreciater of the French chawith the security afforded by English racter. He told me that during the and American law. No process ana- interminable dis
ssions arising out of logous to that of our writ of Habeas. the affairs of the East, he had the cuCorpus is known to French jurispru. riosity to count the number of times dence. Instances of individual oppres- these catch-words, these shibboleths of sion are no doubt rare,-perhaps, I the French statesmen, were repeated might say, almost unknown; but this in the journals of Paris
. I wish I had result is rather owing to the spirit of kept a memorandum of the amount, the age, and the wise moderation of but I did not, and I am afraid to state the government, than to any operating my impression, lest I should make a protecting principle in the law itself
. larger demand upon the reader's creLet menot, however, be misunderstood. dulity, than he might be disposed to The days of lettres de cachet, when grani. However, the number was as the executive power could seize a per- enormous as it was characteristic. son because he had offended a favorite This defect of the French law, on or a minion, or something still worse, the subject of personal liberty, is the have disappeared never to return. No more to be deplored, as, in cases of person can be imprisoned but by the oppression, there is not that resort for judicial authority. But this authority redress to a public prosecution or a is too extensive, according to our no- private suit, which makes part of the tions of practical security; or rather, system of remedies provided by the we might say, it is left too much with. Anglo-Saxon code. No legal proceedout salutary checks. Arrests may be ings can be instituted against a public made at the discretion of the magis- officer in France, for any act done untrates, without those circumstances der color of his duty, without the preof probable guilt which with us are vious assent of a great political body indispensable ; and as there is no legal of the state, called the “ Conseil d' provision for the termination of the Etat.” This arbitrary provision made proceedings within a limited time, no part of the ancient French law, but these may be longer or shorter as cir- it was contrived during the reign of cumstances may dictate. In political Napoleon, in order to strengthen the accusations, where the passions are authority of the government by renderawakened, and where the government ing its functionaries independent of all is interested in the result, it were idle control but its own. And it has been to expect that this fundamental defect found so convenient for the depositain criminal jurisprudence should not ries of power, that it has survived the sometimes be revealed by practical in- revolutions which have since taken justice. The same elements of oppres- place, and yet exists in full rigor. It sion were formerly the reproach of the may well be supposed, that, as a pracBritish laws, as their efficient remedy tical remedy for the redress of wrongs has been the glory of British legislation. committed by the order of the governStrange as it may appear, I do not re- ment, or justified by it, such a provision collect that in the French Chambers, is perfecily illusory; and while I am
writing these remarks, the journals of strikes the traveller arriving from EngParis are furnishing a proof that this land or from the United States, and shield of power between the wrong- the incongruities it reveals are not a doer and the oppressed is interposed little amusing. The impatient seanow with as much facility as in the worn traveller, when about to put foot palmiest days of the imperial régime. upon the shore, is accosted by a policeI quote the paragraph which is an man, covered with an enormous chaextract from « Le Temps,” December peau and girded with a formidable 21, 1841 :
sword, who demands his passport, and “ The Council of the State, which bars his progress till he finds all is, as had to pronounce upon the authority they say, en règle," and that the demanded by Mr. Isambert, a mem western republican does not come to ber of the Chamber of Deputies and overturn the constitutional throne of of the Court of Cassation, to pursue the dynasty of July. Then he is in justice Mr. Jubelin, ex-Governor of seized by a Douanier, equally armed Guadeloupe, has refused its consent to cap-a-piė, and conducted to the depôt, the application."
where he is examined to ascertain ihat One of the earliest and most un- he carries upon his person no luckless toward signs which the progress of cigar, nor piece of tobacco, by which the the French Revolution presented to the revenue of the country may be defraudlover of rational liberty, was the ea- ed. Then he is free to seek his hotel, gerness with which questions of dress, but, upon the route, if he passes a street of uniform, and of display, were dis- where repairs are making, he will cussed, and the earnestness with again find a formidable sword with which they were settled. In the midst some miserable-looking creature atof deeds of blood, such as the world tached to it, watching a pile of stones had never witnessed, and which, it is or an open ditch, to prevent accidents. to be hoped, will never again be ex- If he enters a church, he will meet the hibited-in the midst of the most seri- beadle at the door with a chapeauous projects for levelling down ancient bras bordered with gold lace, à red institutions and for building up new ones coat with ample folds, a long spear or ---for defending the very heart of the halbert in his hand, and the eternal country, and for carrying a war of arms sword, ready to conduct the procession and opinions among almost every other through the sounding aisles of the nation—a grave debate would arise venerable and impressive edifice. If a respecting the color of a municipal funeral procession passes him, the sword officer's scars, the uniform of a deputy, is there; if an octroi employé at the and, later in the shifting of the scenes, gate of a town searches his baggage, the embroidered coat of a Director, or he does it sword by his side ; and by the robe of a Consul. This taste for whatever route, land or sea, he leaves external show yet exists, though the the country, he is bowed out, with all deputies have thus far resisted all politeness, by some agent of the police the efforts which have been made to or treasury, in the prescribed costume, induce them to put on a uniform; and and girded with this ever-present emthey alone are the privileged persons blem of authority. All this is not who are permitted to enter the Tuile- merely laughable; it is unfortunately ries, upon great days of reception, in a much worse. It is a continued display plain costume. But the predisposition of physical force. It is an eternal to assimilate, by the external appear- lesson which teaches that the moral ance, conditions the most opposite in power of the laws is nothing, but that their duties to the military state, is not brute strength is everything. There is less striking than ridiculous. It would already too much military spirit in seem, that the man of war is par ex- France for her own good, as well as for cellence honorable, and that the offi- the peace of the world, even when cers of other employments are more restrained within the narrowest limits respected as they assume more nearly by a prudent government, without his official badges. This tendency to encouraging its progress by these visimilitary display is a bad augury for ble proofs of the all-pervading efficacy the progress of liberal institutions. of a military organization. But it is one of the first things which But I am led from my object, which
was to describe a characteristic scene nature in all the great departments of in a French court of justice. And, as life. We are prone—honestly, no I am in rather a rambling vein, I may doubt-to magnify the advantages and indulge in other episodes before I pro- importance of the pursuits to which ceed to my principal action.
we are devoted; and, with our system The magistracy of France, as a of jurisprudence, those who profess it body, enjoys a large share of the pub- have inherited as a dogma not to be lic confidence. It must deserve it; for doubted, that the English common law so many are the subjects of discussion is “the perfection of human reason." which occupy the public press, so free It is my deliberate opinion, confirmed by the right of discussion, and so warm the observation of every day, that much the passions which are enlisted, that of it is the perfection of human nonwere the tribunals of justice ignorant, sense. What can be more absurd than or corrupt, or incompetent, there would a judicial code which gravely permits be enough to proclaim and denounce one of the parties to call the other betheir unworthiness. I have no doubt fore a court of justice, where the whole but that the administration of the law cause is examined, the witnesses are between man and man is as able and heard, the verdict rendered, and the pure in France as in any other country judgment given, and then allows the in the world. But I am going much other party to carry the proceedings farther than this; and far enough to before another tribunal, administering shock many a prejudice which believes, an entirely different system of juriswith the firmest conviction, that the prudence, which reverses, in effect, all old code of the common law is the that had previously been done, and wisest system of jurisprudence which establishes the right of the opposite the world has ever seen, and that Lyt- party? And yet this solemn farce is telton and Coke, and their metaphysi- every day acted in almost every state cal successors, are the ablest commen- in the Union, and we are so familiartators which ever guided the human ized to this complicated procedure, intellect in its search after truth. For under the names of common law and my part, I consider it a reproach to our chancery jurisdiction, that every effort age and country, that a system should to simplify it and to consolidate these yet govern all the relations of society discordant principles into a single sysamong us, all the rights of persons tem, administered at one time and by and of property, indeed of life itself, the same tribunal, as is done in every which is at the same time so rude in other country under heaven except its principles and artificial, as contra- England and the United States, has distinguished from simple, in its pro- been heretofore useless and still cedure—unwritten, and therefore sub- threatens to be so. stituting the legislation of courts and I am not about to pursue this invescommentators for that of responsible tigation, and to present a catalogue representative bodies—which was raisonné of the anomalies and inconsis. founded upon a policy whose barbar- tencies of our legal code. It is a task ism was cloaked by ord feudal- for which I have neither time nor that grew up in the darkest ages—that talent, I have often wished that some pressed almost equally upon mind and shrewd observer, adequate to its accombody, and that has disappeared before plishment, divesting himself of profesthe advancing reason of mankind; sional prejudices, would undertake this while, to crown the absurdity, this «labor, one of the most useful, in the system of jurisprudence is almost un- present state of society, which could known to the immense mass upon be performed. But I'must quit this whom it operates, and but darkly and topic and pass to my more immediate doubtfully shadowed out to the chosen object; and as in the sequel I propose few who are the priests of the sanctu- to relate an anecdote characteristic of ary, and whose oracles are almost as the proceedings in the French tribunals, hidden as were those of the expounders I will briefly call the attention of the of Delphi. “ Great is Diana of the reader to a remarkable difference in the Ephesians," was the rallying cry of progress of judicial investigation in those who were attached by their France and the United States. duties to the temple of Ephesus; and With us, as is well known, the ina similar schtiment pervades human dictment, or in other words the charge
which is preferred against the accused, commit him. On the contrary it seems is a contrivance as little calculated to to me much more rational io encourattain its object, as human ingenuity age the party to disclose the truth. By could well devise. It ought to have this means, the great ends of justice two great ends, one to give proper no- would be much better attained. There tice to the defendant, of the accusation is no fear that innocence would suffer. against him, that he may be prepared No innocent man will avow his guilt. to meet it, and to the officers charged It is the guilty only who by silence or with the trial, whether called judges prevarication seek to escape the penalty or jurors, that they may know to what of their crimes. facts their attention is to be directed; I was forcibly impressed with the and the other, that sufficient certainty absurdity of the prescribed formula in may exist, by which the acquittal or our criminal jurisprudence, by a fact conviction may always prevent a sub- that was stated in the journals which sequent prosecution. A plain man, published accounts of the proceedings who had never wandered in the mazes of the court at Utica, where McLeod of legal metaphysics, would say, with was recently tried and acquitted. And out hesitation, that the true mode of by-the-bye, no American in Europe can effecting these objects would be by have failed to observe the favorable preparing a clear and succinct siate- effect which that trial has produced ment of the circumstances attending upon our public character throughout each case. But alas for the weakness this quarter of the world. The gravity of common sense! It is not thus the of the question and the consequences Justinians of our code went to work, involved in it, and I may add the prewhen they established its principle- diction of the English journals--always nor is it thus that its expounders ad- inclined to magnity ihe difficulties to minister it, when required to decide which the state of our society is exupon the liberty, perhaps upon the lise, posed, but which are as the small dust of the unfortunate persons brought be- of the balance when contrasted with fore them. The variety of human ac- the open and covert evils which in tions is endless. But as if to show its Europe are preparing for mighty contempt of this eternal truth, the law changes—had fixed the attention of has prepared certain forms for the Christendom upon the conduct of the various classes of offences, and every tribunal charged with the fate of succeeding crime is described in the McLeod, and with peace or war beidentical words which were employed tween two great countries. And well in the description of the immense num- did the court, and bar, and jury, and ber which preceded it. The only dif- spectators, issue from that trial.' The ference that exists is as to the day and dignity and impartiality of the proplace; and to render the whole process ceedings, the learning and patience of if possible still more absurd, if such a the judge, the able efforts of the respectterm may be applied to so grave a sub- ive counsel, tempered with a just conject, these incidents are not required to sideration for the rights and feelings of be truly stated, and the indictment may their opponents, and the admirable name any day and place, and the proof conduct of the public, within and will apply, as every lawyer knows, to without the walls of the court-room, any other.
were as honorable to the character of The French law avoids this absurd- our country as they seem to have been ity. The act of accusation is a narra- unexpected 10 Europe. Certainly the tive of the circumstances as they crisis through which England and the occurred, plainly prepared, and giving United States have passed, connected therefore to the court and the party all with this affair, was sufficiently alarmthe necessary information. When the ing to excite the apprehension of all defendant is placed at the bar, he is reflecting men in both countries, and questioned by the court, and he is free it is to be hoped, that a similar questo answer or not, as he pleases. I have tion will not again present itself for never been able to see the wisdom of solution. But should it come, we can that procedure in our tribunals, which ask no more honorable termination, leads the court to caution the defendant than that which at Utica released against the confession of his guilt, or McLeod from his danger, and two kinagainst saying anything which may dred people from the alarm of war.