“Art. 9. As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all severity not essential to the securing of the prisoner’s person shall be severely repressed by law.”
That these three articles were aimed at no imaginary or very distant wrongs is evident from a cursory survey of the administration of the laws of France, and from the protests of French authors. Lettres de cachet, arbitrary imprisonments, retroactive laws, and cruelly exaggerated penalties were not uncommon. Mirabeau and Voltaire had both suffered under arbitrary laws and had painted the injustice of such laws in lurid colors. Mirabeau’s Lettres de cachet and his Essai sur le despotisme bristle with protests against the abuses of the old régime. The following gruesome picture is a suggestive statement of the way in which justice was administered in France in the eighteenth century:
“The disproportion of crimes and of penalties was flagrant. A house thief was hung in 1733; an ecclesiastic, guilty of having found fault with the expulsion of the Jesuits, was also hung in 1762. The procedure was unjust and inhuman. The accused, assumed to be guilty in advance, ignorant of the crime with which he was charged, without counsellor or advocate, interrogated à huis clos, submitted to the preparatory question, was judged secretly. Once condemned, he was tortured before undergoing his punishment. And what punishment! For imprisonment, transportation or hanging was in vogue. The burning at the stake had fallen into desuetude, but the lash, branding with red-hot iron, the galleys, quartering, the rack, still did their savage work.”[20]
Protests against these enormities were raised by the philosophers, and later by enlightened magistrates, such as Montesquieu, Servan, Linguet, and Malesherbes. In 1780, the “preparatory question” was abolished.[21]
Mirabeau, in denouncing retroactive laws, says: “Nulle puissance humaine, ni surhumaine ne peut justifier l’effet rétroactif d’aucune loi.”[22]
“Art. 10. No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.”
Since the sixteenth century, France had been wrestling with the problem of how to adjust two hostile faiths to each other. Farther to complicate the matter, a schism occurred in the seventeenth century within the Catholic Church, which aroused between Jesuits and the Jansenists a feeling of intolerance, well-nigh as violent and determined as that which already existed between the Catholics and the Huguenots. Even in the eighteenth century intolerance, held in partial abeyance, frequently broke out in overt acts, which displayed the vindictiveness of the hostile parties. The philosophers, more interested in humanity than in the prejudices of any faction, championed in the name of tolerance the party persecuted. The new spirit gained support. The writings of the latter half of the eighteenth century abound with denunciations of intolerance and with pleas for tolerance.[23] By and by the movement was fruitful, and on January 19, 1788, the Parlement of Paris registered a decree giving civil rights to Protestants.[24]
“Art. 11. The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for the abuse of this freedom as shall be defined by law.”
Here too is an attempt to secure permanently that for which a long struggle had taken place. Two powers, the Church and Royalty, had labored, now singly and now together, to regulate the expression of ideas. The writing and the writer had been equally the object of royal inclemency—the one being consigned to the flames, the other to prison. But in spite of royal decrees, public sentiment gravitated towards liberty of expression. In 1776, Malesherbes secured the opening of the prisons of Vincennes and the Bastille for the release of prisoners held under Lettres de cachet.[25] Again, in 1784, in response to Mirabeau’s “Lettres de cachet,” the dungeons of Vincennes were opened.[26]
“Art. 12. The security of the rights of man and of the citizen requires a public force. This force is, therefore, established for the good of all and not for the personal advantage of those to whom it shall be entrusted.”