The Philosophy of Voltaire - Collected Works: Treatise On Tolerance, Philosophical Dictionary, Candide, Letters on England, Plato's Dream, Dialogues, The Study of Nature, Ancient Faith and Fable…. Вольтер
will suffice to reconcile two divided friends; and after this text has criminal jurisprudence been regulated, so far as to decree that by divine law a citizen may be condemned to die on the uniform deposition of two witnesses who may be villains? It has been already said that a crowd of according witnesses cannot prove an improbable thing when denied by the accused. What, then, must be done in such a case? Put off the judgment for a hundred years, like the Athenians!
We shall here relate a striking example of what passed under our eyes at Lyons. A woman suddenly missed her daughter; she ran everywhere in search of her in vain, and at length suspected a neighbor of having secreted the girl, and of having caused her violation. Some weeks after some fishermen found a female drowned, and in a state of putrefaction, in the Rhône at Condmeux. The woman of whom we have spoken immediately believed that it was her daughter. She was persuaded by the enemies of her neighbor that the latter had caused the deceased to be dishonored, strangled, and thrown into the Rhône. She made this accusation publicly, and the populace repeated it; persons were found who knew the minutest circumstances of the crime. The rumor ran through all the town, and all mouths cried out for vengeance. There is nothing more common than this in a populace without judgment; but here follows the most prodigious part of the affair. This neighbor's own son, a child of five years and a half old, accused his mother of having caused the unhappy girl who was found in the Rhône to be violated before his eyes, and to be held by five men, while the sixth committed the crime. He had heard the words which pronounced her violated; he painted her attitudes; he saw his mother and these villains strangle this unfortunate girl after the consummation of the act. He also saw his mother and the assassins throw her into a well, draw her out of it, wrap her up in a cloth, carry her about in triumph, dance round the corpse, and, at last, throw her into the Rhône. The judges were obliged to put all the pretended accomplices deposed against in chains. The child is again heard, and still maintains, with the simplicity of his age, all that he had said of them and of his mother. How could it be imagined that this child had not spoken the pure truth? The crime was not probable, but it was still less so that a child of the age of five years and a half should thus calumniate his mother, and repeat with exactness all the circumstances of an abominable and unheard-of crime; if he had not been the eye-witness of it, and been overcome with the force of the truth, such things would not have been wrung from him.
Every one expected to feast his eyes on the torment of the accused; but what was the end of this strange criminal process? There was not a word of truth in the accusation. There was no girl violated, no young men assembled at the house of the accused, no murder, not the least transaction of the sort, nor the least noise. The child had been suborned; and by whom? Strange, but true, by two other children, who were the sons of the accused. He had been on the point of burning his mother to get some sweetmeats.
The heads of the accusation were clearly incompatible. The sage and enlightened court of judicature, after having yielded to the public fury so far as to seek every possible testimony for and against the accused, fully and unanimously acquitted them. Formerly, perhaps, this innocent prisoner would have been broken on the wheel, or judicially burned, for the pleasure of supplying an execution—the tragedy of the mob.
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.
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 prosecuted by the king's officer is at once immured in a dungeon, 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 authorized by the commissioners, who, in 1670, drew up the ordinance 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 chambers of the judge. Intrare secretum to express speaking in secret, would not be Latin. This part of our jurisprudence was