Travels in France during the years 1814-1815 by Patrick Fraser Tytler (beach read book .txt) 📖

that with all these precautions, it would be scarcely possible that the guilty should escape. The very contrary is the case, and I have been informed by some of the ablest lawyers in the courts here, that out of ten prisoners, really guilty, six haves good chance of getting clear off. They ascribe this to two principal causes, 1st, That the proceedings become so extremely tedious and intricate, that it is impossible for the jury to keep them all in their recollection, and that, forgetting the general tenor of the evidence, they suffer the last impressions, those made by the counsel for the prisoner, to bias their judgment, and to regulate their verdict. In the 2d place, It is customary for the president of the court to enter into a long examination and cross-examination of the prisoner, (assisted and prompted in his questions by the rest of the judges), in a severe and peremptory style, and what is too often the case with the judge, in his anxiety to condemn, to identify himself with the public prosecutor. He appears, in the eye of the jury, more in the light of an interested individual, anxious to drag the offender in the most summary manner to the punishment of the law, than as an upright and unbiassed judge, whose duty it is coolly to consider the whole case, to weigh the evidence of the respective witnesses, to consider, with benevolent attention, the defence of the prisoner, and, after all this, to pronounce, with authoritative impartiality, the sentence of the law. This naturally prejudices the jury in favour of the prisoner; and few, even in our own country, who may have been witness to the common routine of our criminal procedure, will not themselves have felt that immediate and irresistible impression, which is made upon the mind of the spectator, when he sees on one side the solemn array of the court, the judges, the officers, and all the terrible show of justice; and on the other, the trembling, solitary, unbefriended criminal, who awaits in silence the sentence of the law. One difference, however, between the effects produced by the respective criminal codes of France and England, ought to be here remarked. In England, owing to the principles and practice of our criminal law, it too frequently happens, that the most open and notorious criminals escape, whilst the less able, but more innocent offenders, those who might be easily reclaimed, who have gone little way in the road of crime, but who are less able to do themselves justice at their trial, fall an easy sacrifice to the rigour of our criminal code. In France, owing to the custom of the cross-examinations of the prisoner, by the president and the different judges, this can never happen. The notoriety of his character prevents the common feelings of compassion in the breasts of the jury; the severity of the interrogations renders it impossible that any fictitious story, when confronted with his former examinations before the magistrate and the Juré d'Accusation, can long hold together, and he is, in this manner, generally convicted by the evidence extracted from his own mouth upon the trial.

The present style of French pleading is exactly what we might be led to expect from the peculiar state of manners, and the particular character of that singular people. It is infinitely further removed from dry legal ratiocination, and much more allied to real eloquence, than any thing we met with in England. Any one who is acquainted with the natural inborn fluency in conversation of every individual whom he meets in France, may be able to form some idea of the astonishing command of words in a set of men who are bred to public speaking. One bad effect arises from this, which is, that if the counsel is not a man of ability, this amazing volubility, which is found equally in all, serves more to weaken than to convince; for the little sense there may be, is spread over so wide a surface, or is diluted with such a dose of verbiage, that the whole becomes tasteless and insipid to the last degree. But this fluency, on the other hand, in the hands of a man of talents and genius, is a most powerful weapon. It hurries you along with a velocity which, from its very rapidity, is delightful; and where it cannot convince, it amuses, fascinates, and overpowers you.

One thing struck me as remarkable in the French form of trial, which perhaps might be with benefit adopted by England. All exceptions and challenges to jurymen are made in private, and not, as with us, in open court. This is a more delicate method, and no man's character can suffer (as is sometimes the case in England) by being rejected. The trial by jury is very far from being popular in France; indeed, upon an average I have heard more voices against it than advocates for its continuance. The great cause for this dissatisfaction is that which leads to various other calamitous consequences in that kingdom,—the want of public spirit in France.—The French have literally no idea of any duties which they must voluntarily, without the prospect of reward, undertake for their country. It never enters their heads that a man may be responsible for the neglect of those public duties, for the performance of which he receives no regular salary.—There is a constant connection in their minds, between business and payment, between money and obligation: and as for that noble and patriotic spirit which will undergo any labour from a disinterested sense of public duty, it is long since any such feeling has existed, and it will probably, if things continue in their present state, be long before it will exist again in France.

It might be imagined, from the advantages in the administration of criminal justice, that France was in this respect equal, if not superior to Britain.—This, however, is by no means the case. The written criminal code of France is indeed apparently more humane, and the civil code less intricate and voluminous than with us in England. But there is a wide and striking difference between this code, drawn up with all the luminousness of speculative benevolence, and the manner in which the same code is carried into execution: What signifies the purity of the code, if the executive part of the system, the nomination of the judges, the direction of the sentences, and the reversal of the whole proceedings, was submitted to the power, and constituted part of the iron prerogative, of a despotic Sovereign. It was the constant practice of the late Emperor to appoint, whenever it was necessary for the accomplishment of his own ends, what he denominated a cour prevoitale—a species of court consisting of judges of his own selection, who, with summary procedure, condemned or acquitted, according to the pleasure of its master. Not only was this court erected, which was in every respect under the controul of the Emperor, but by means of his police emissaries, of those pensioned spies whom he insinuated into all the offices, and the remotest branches of the political administration, he contrived to overawe the different judges, to keep them in perpetual fear of the loss of their official situation, and in this manner to beat down the evidence, to bias the sentence, and finally, to direct the verdict. The judicial situations became latterly so completely under the influence of the creatures of the Court, that I was informed by the lawyers, that no judge was sure of remaining for two months in his official situation.

Upon the important subject of criminal delinquency, I am sorry to say the only information I contrived to collect was extremely unsatisfactory. I had been promised, by an intelligent barrister, with whom I had the good fortune to become acquainted, a detailed opinion upon the state of criminal delinquency in France; but in the meantime Napoleon landed from Elba, and my friend was called away from his civil duties to join the national guard, who were marched, when it was too late, in pursuit of Bonaparte.

From the calendar of crimes, however, which I had the opportunity of examining at the Aix assizes, as well as from the decided opinion of many of the lawyers there, I should be induced to hazard the opinion, that the crimes of robbery, burglary, and murder, are infinitely less frequent than in England. The great cause of this is undoubtedly to be attributed to the excellence of their police. Wherever such a preventive as the system of Espionage, and that carried to the perfection which we find it possessing in that country, exists, it is impossible that the greater crimes should be found to any alarming decree. There is a power, a vigour and an omnipresence in this effective police, which can check every criminal excess before it has attained any thing like a general or rooted influence throughout the kingdom; and its power, under the administration of Napoleon, was exerted to an excessive degree in France. Such a mode, however, of diminishing the catalogue of crimes, could exist only under a state of things which the inhabitants of a free country would not suffer for a moment; and indeed, to anyone possessing but the faintest idea of what liberty is, there is something in the idea of a system of espionage which is dreadful. It is like some of those dark and gigantic dæmons, embodied by the genius of fiction, the form of which you cannot trace, although you feel its presence, which stalks about enveloped in congenial gloom, and whose iron grasp falls upon you the more terrible, because it is unsuspected. Fortunately such a monster can never be met with in a free country. It shuns the pure, and untainted atmosphere of liberty, and its lungs will only play with freedom in the foul and thick air of a decided despotism.

The effects of this system of espionage, in destroying every thing upon which individual happiness in society depends; the free and unrestrained communication of opinion between friends, and even the confidence of domestic society, can hardly be conceived by any one who has lived in a free country. Upon this subject, I had an opportunity of conversing with a most respectable and intelligent British merchant, who, previous to the revolution, had been a partner in a banking-house in the French metropolis; and afterwards had the misfortune of being kept a prisoner in Paris for the last twelve years. The accounts he gave us regarding the excessive rigour of the police, and the jealousy of every thing like intercourse, were truly terrible. It had become a maxim in Paris, an axiom whose truth was proved by the general practice and conduct of its inhabitants, to believe every third person a spy. Any matter of moment, any thing bordering upon confidential communication, was alone to be trusted entre quatre yeux. The servants in every family, it was well known, were universally in the pay of government. They could not be hired till they produced their licenses, and these licenses, to serve as domestics, they all procured from the office of the police. From that office their wages were as certain, and probably (if the information they conveyed was of importance), more regularly paid than those they received from their masters. Even, therefore, in the most secret retirement of your own family, you could never speak with perfect freedom. Mr B——, the gentleman above mentioned, informed me, that before he dared to mention, even to his wife or family, any subject connected with the affairs of the day, or when they wished to speak freely and unrestrainedly upon any point whatever, every corner of the room was first examined, the chinks of the doors, and the walls of the adjoining apartments underwent a similar scrutiny; and even then they did not dare to introduce any subject which was nearly connected with the political government of the