Very innocent actions have been frequently punished with death. Thus in England, Richard III., and Edward IV., effected by the judges the condemnation3 of those whom they suspected of disaffection. Such are not criminal processes; they are assassinations4 committed by privileged murderers. It is the last degree of abuse to make the laws the instruments of injustice5.
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 mere7 curiosity, nothing was more cruel than to take away his life. It is observed, in “The Spirit of Laws,” that this vigor8 was exercised, “because he usurped9 the rights of a citizen.”
But a Frenchman in London who goes to the House of Commons to hear the debates, does not aspire10 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 arrogate11 to himself the rights of citizenship12. 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 interrogated13 the adverse14 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 assassinated15 Clodius, in the presence of a thousand citizens. The same Cicero undertook the defence of Roscius Amerinus, accused of parricide16. 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 outrage17 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 deviate18 from or go beyond the law. No punishment is arbitrary. No judgment19 can be executed before it has been reported to the king, who may, and who ought to bestow20 pardon on those who are deserving of it, and to whom the law cannot extend it. This case frequently occurs. A man outrageously21 wronged kills the offender22 under the impulse of venial23 passion; he is condemned24 by the rigor25 of the law, and saved by that mercy which ought to be the prerogative26 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 imprisonment27 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.
Proceedings28 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 prosecuted29 by the king’s officer is at once immured30 in a dungeon31, 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 authorized32 by the commissioners33, who, in 1670, drew up the ordinance34 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 chambers35 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 retract36 their depositions38, 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 revokes39, in the spirit of justice, what he has advanced through incaution, he is punished as a felon40. He is in this manner often compelled to persevere41 in false testimony42, from the actual dread43 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 contumacious44 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 chastisement45 as would have followed his conviction. Thus, according to the sect46 of lawyers which the judge may have embraced, an innocent man may be acquitted47 or condemned.
It is a great abuse in jurisprudence that people often assume as law the reveries and errors — sometimes cruel ones — of men destitute48 of all authority, who have laid down their own opinions as laws. In the reign6 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 condemn2 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 condemning49 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 penitents50, in white robes and masks, had erected51, 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 abjured52 the reformed religion; at the time when the whole family of this Protestant, then revered53 as a martyr54, were in irons, and a whole population, intoxicated55 by a superstition56 equally senseless and cruel, awaited with devout57 impatience58 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 bishop59 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 secluded60 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 penances61 in order to inculcate doctrines62 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 linen63, perceives that her person is covered with contusions; her imbecility increases; she becomes melancholy64 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 precisely65 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 positively66 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 magistrates68 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 attestation69 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 magistrate67 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 expiration70 of eighteen days, that the young woman had been strangled, and afterwards thrown into the well. On this deposition37 the magistrate issued a warrant to apprehend71 the father, mother, and the two daughters. The family, justly terrified at the catastrophe72 of Calas, and agreeably to the advice of their friends, betook themselves instantly to flight; they travelled amidst snow during a rigorous winter, and, toiling73 over mountain after mountain, at length arrived at those of Switzerland. The daughter, who was married and pregnant, was prematurely74 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 gallows75 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 abominable76. 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 confiscated77, 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 justify78 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 wretch79, would you have had them remain to glut80 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 innocence81 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 mitigated82, 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 repented83 of having ever shed it. The Sirvens were justified84.
Erudimini, qui judicatis terram.
Be instructed, ye judges of the earth.
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收听单词发音
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1
prosecution
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| n.起诉，告发，检举，执行，经营 | |
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condemn
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| vt.谴责，指责；宣判(罪犯)，判刑 | |
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condemnation
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| n.谴责; 定罪 | |
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assassinations
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| n.暗杀( assassination的名词复数 ) | |
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injustice
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| n.非正义，不公正，不公平，侵犯（别人的）权利 | |
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reign
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| n.统治时期，统治，支配，盛行；v.占优势 | |
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mere
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| adj.纯粹的；仅仅，只不过 | |
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vigor
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| n.活力，精力，元气 | |
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usurped
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| 篡夺，霸占( usurp的过去式和过去分词 )； 盗用； 篡夺，篡权 | |
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aspire
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| vi.(to，after)渴望，追求，有志于 | |
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arrogate
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| v.冒称具有...权利，霸占 | |
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citizenship
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| n.市民权，公民权，国民的义务(身份) | |
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interrogated
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| v.询问( interrogate的过去式和过去分词 )；审问；（在计算机或其他机器上）查询 | |
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adverse
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| adj.不利的；有害的；敌对的，不友好的 | |
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assassinated
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| v.暗杀( assassinate的过去式和过去分词 )；中伤；诋毁；破坏 | |
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parricide
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| n.杀父母；杀亲罪 | |
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outrage
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| n.暴行，侮辱，愤怒；vt.凌辱，激怒 | |
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deviate
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| v.(from)背离，偏离 | |
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judgment
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| n.审判；判断力，识别力，看法，意见 | |
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bestow
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| v.把…赠与，把…授予；花费 | |
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outrageously
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| 凶残地； 肆无忌惮地； 令人不能容忍地； 不寻常地 | |
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offender
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| n.冒犯者，违反者，犯罪者 | |
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venial
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| adj.可宽恕的；轻微的 | |
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condemned
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| adj. 被责难的, 被宣告有罪的 动词condemn的过去式和过去分词 | |
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rigor
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| n.严酷，严格，严厉 | |
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prerogative
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| n.特权 | |
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imprisonment
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| n.关押，监禁，坐牢 | |
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proceedings
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| n.进程，过程，议程；诉讼(程序)；公报 | |
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prosecuted
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| a.被起诉的 | |
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immured
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| v.禁闭，监禁( immure的过去式和过去分词 ) | |
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dungeon
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| n.地牢，土牢 | |
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authorized
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| a.委任的，许可的 | |
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commissioners
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| n.专员( commissioner的名词复数 )；长官；委员；政府部门的长官 | |
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ordinance
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| n.法令；条令；条例 | |
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chambers
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| n.房间( chamber的名词复数 )；（议会的）议院；卧室；会议厅 | |
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retract
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| vt.缩回，撤回收回，取消 | |
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deposition
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| n.免职，罢官；作证；沉淀；沉淀物 | |
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depositions
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| 沉积（物）( deposition的名词复数 )； （在法庭上的）宣誓作证； 处置； 罢免 | |
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revokes
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| v.撤销，取消，废除( revoke的第三人称单数 ) | |
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felon
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| n.重罪犯；adj.残忍的 | |
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persevere
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| v.坚持，坚忍，不屈不挠 | |
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testimony
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| n.证词；见证，证明 | |
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dread
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| vt.担忧，忧虑；惧怕，不敢；n.担忧，畏惧 | |
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contumacious
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| adj.拒不服从的，违抗的 | |
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chastisement
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| n.惩罚 | |
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sect
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| n.派别，宗教，学派，派系 | |
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acquitted
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| 宣判…无罪( acquit的过去式和过去分词 )； 使（自己）作出某种表现 | |
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destitute
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| adj.缺乏的；穷困的 | |
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condemning
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| v.（通常因道义上的原因而）谴责( condemn的现在分词 )；宣判；宣布…不能使用；迫使…陷于不幸的境地 | |
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penitents
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| n.后悔者( penitent的名词复数 )；忏悔者 | |
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ERECTED
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| adj. 直立的，竖立的，笔直的 vt. 使 ... 直立，建立 | |
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abjured
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| v.发誓放弃( abjure的过去式和过去分词 )；郑重放弃（意见）；宣布撤回（声明等）；避免 | |
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revered
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| v.崇敬，尊崇，敬畏( revere的过去式和过去分词 ) | |
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martyr
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| n.烈士，殉难者；vt.杀害，折磨，牺牲 | |
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intoxicated
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| 喝醉的，极其兴奋的 | |
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superstition
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| n.迷信，迷信行为 | |
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devout
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| adj.虔诚的，虔敬的，衷心的 (n.devoutness) | |
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impatience
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| n.不耐烦，急躁 | |
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bishop
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| n.主教，（国际象棋）象 | |
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secluded
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| adj.与世隔绝的；隐退的；偏僻的v.使隔开，使隐退( seclude的过去式和过去分词) | |
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penances
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| n.（赎罪的）苦行，苦修( penance的名词复数 ) | |
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doctrines
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| n.教条( doctrine的名词复数 )；教义；学说；（政府政策的）正式声明 | |
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linen
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| n.亚麻布，亚麻线，亚麻制品；adj.亚麻布制的，亚麻的 | |
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melancholy
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| n.忧郁，愁思；adj.令人感伤（沮丧）的，忧郁的 | |
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precisely
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| adv.恰好，正好，精确地，细致地 | |
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positively
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| adv.明确地，断然，坚决地；实在，确实 | |
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magistrate
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| n.地方行政官，地方法官，治安官 | |
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magistrates
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| 地方法官，治安官( magistrate的名词复数 ) | |
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attestation
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| n.证词 | |
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expiration
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| n.终结，期满，呼气，呼出物 | |
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apprehend
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| vt.理解，领悟，逮捕，拘捕，忧虑 | |
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catastrophe
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| n.大灾难，大祸 | |
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toiling
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| 长时间或辛苦地工作( toil的现在分词 )； 艰难缓慢地移动，跋涉 | |
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prematurely
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| adv.过早地，贸然地 | |
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gallows
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| n.绞刑架，绞台 | |
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abominable
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| adj.可厌的，令人憎恶的 | |
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confiscated
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| 没收，充公( confiscate的过去式和过去分词 ) | |
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justify
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| vt.证明…正当(或有理)，为…辩护 | |
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wretch
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| n.可怜的人，不幸的人；卑鄙的人 | |
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80
glut
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| n.存货过多，供过于求；v.狼吞虎咽 | |
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81
innocence
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| n.无罪；天真；无害 | |
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82
mitigated
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| v.减轻，缓和( mitigate的过去式和过去分词 ) | |
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83
repented
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| 对（自己的所为）感到懊悔或忏悔( repent的过去式和过去分词 ) | |
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84
justified
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| a.正当的，有理的 | |
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