That a magistrate, the executor of the laws, should have a power to imprison a citizen, to deprive the man he hates of his liberty, upon frivolous pretences, and to leave his friend unpunished, notwithstanding the strongest proofs of his guilt, is an error as common as it is contrary to the end of society, which is personal security.
Imprisonment is a punishment which differs from all others in this particular, that it necessarily precedes conviction; but this difference does not destroy a circumstance which is essential and common to it with all other punishments, viz. that it should never be inflicted but when ordained by the law. The law should therefore determine the crime, the presumption, and the evidence sufficient to subject the accused to imprisonment and examination. Public report, his flight, his extrajudicial confession, that of an accomplice, menaces, and his constant enmity with the person injured, the circumstances of the crime, and such other evidence, may be sufficient to justify the imprisonment of a citizen. But the nature of this evidence should be determined by the laws, and not by the magistrates, whose decrees are always contrary to political liberty, when they are not particular applications of a general maxim of the public code. When punishments become less severe, and prisons less horrible, when compassion and humanity shall penetrate the iron gates of dungeons, and direct the obdurate and inexorable ministers of justice, the laws may then be satisfied with weaker evidence for imprisonment.
A person accused, imprisoned, tried, and acquitted, ought not to be branded with any degree of infamy. Among the Romans we see that many accused of very great crimes, and afterwards declared innocent, were respected by the people, and honoured with employments in the state. But why is the fate of an innocent person so different in this age? It is because the present system of penal laws presents to our minds an idea of power rather than of justice: it is because the accused and convicted are thrown indiscriminately into the same prison? because imprisonment is rather a punishment than a means of securing the person of the accused; and because the interior power, which defends the laws, and the exterior, which defends the throne and kingdom, are separate, when they should be united. If the first were (under the common authority of the laws) combined with the right of judging, but not however immediately dependent on the magistrate, the pomp that attends a military corps would take off the infamy, which, like all popular opinions, is more attached to the manner and form than to the thing itself, as may be seen in military imprisonment, which, in the common opinion, is not so disgraceful as the civil. But the barbarity and ferocity of our ancestors, the hunters of the north, still subsist among the people in our customs and our laws, which are always several ages behind the actual refinements of a nation.
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