CRIMINAL.
Criminal Prosecution.
Very innocent actions have been frequently punished with death. Thus in England, Richard III., and Edward IV., effected by the judges the condemnation of those whom they suspected of disaffection. Such are not criminal processes; they are assassinations committed by privileged murderers. It is the last degree of abuse to make the laws the instruments of injustice.
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 mere curiosity, nothing was more cruel than to take away his life. It is observed, in "The Spirit of Laws," that this vigor was exercised, "because he usurped the rights of a citizen."
But a Frenchman in London who goes to the House of Commons to hear the debates, does not aspire 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 arrogate to himself the rights of citizenship. 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 interrogated the adverse 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 assassinated Clodius, in the presence of a thousand citizens. The same Cicero undertook the defence of Roscius Amerinus, accused of parricide. 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 outrage 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 deviate from or go beyond the law. No punishment is arbitrary. No judgment can be executed before it has been reported to the king, who may, and who ought to bestow pardon on those who are deserving of it, and to whom the law cannot extend it. This case frequently occurs. A man outrageously wronged kills the offender under the impulse of venial passion; he is condemned by the rigor of the law, and saved by that mercy which ought to be the prerogative 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 imprisonment 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.
Proceedings in Criminal Cases Among Particular Nations.