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FrRevol_151-200.indd 36 3/16/12 1:04 PM CHAPTER IV Ofthe Good Effected by the Constituent Assembly. Before entering on the distressing events which have disfigured the French Revolution, and lost, perhaps for a considerable time, the cause of reason and liberty in Europe, let us examine the principles proclaimed by the Constituent Assembly and exhibit a sketch of the advantages which their application has produced, and still produces in France, in spite of all the misfortunes that have pressed on that country. The use of torture still subsisted in 1789; the King had abolished only the rack before trial; punishments, such as straining on the wheel, and torments similar to those which during three days were inflicted on Damiens , were, in certain cases, still admitted. The ConstituentAssembly abolished even the name of these judicial barbarities. The penal laws against the Protestants, already modified in 1787 by the predecessors ofthe Estates General, were replaced by the most complete liberty of public worship. Criminal processes were not carried on in public, and not only were a number of irreparable mistakes committed, but a much greater number were supposed; for whatever is not public in the administration of justice is always accounted unfair. The Constituent Assembly introduced into France all the criminal jurisprudence of England, and perhaps improved it in several respects, as they were not checked in their labors by ancient usages. M. de Ia Fayette, from the time that he was placed at the head of the armed force of Paris, declared to the magistrates ofthat city that he could not take upon himself to arrest anyone unless the accused were to be provided with counsel, a copy of the charge, the power of confronting witnesses, and publicity given to the whole procedure. In consequence of this demand, equally z86 FrRevol_151-200.indd 37 3/16/12 1:05 PM CHAPTER IV. Good Effected by Assembly liberal and rare on the part of a military man, the magistrates asked and obtained from the Constituent Assembly that those precious securities should he in force till the establishment ofjuries should prevent all anxiety about the equity of the decisions. Theparlements ofFrance were, as is apparent from their history, bodies possessing certain privileges and acting frequently as the instruments of political passions; but from their having a certain independence in their constitution, and preserving a strict respect for forms, the King's ministers were almost always in a state of altercation with them. Since the commencement of the French monarchy there has, as we have already remarked , hardly existed a state offense, the knowledge of which has not been withdrawn from the ordinary courts, or in the decision ofwhich the forms enjoined by law were preserved. In examining the endless list of ministers, noblemen, and citizens condemned to death on political grounds during several centuries, we see, and it is to the honor of the established judges that we say it, that government was obliged to commit the trials to extraordinary commissions when it wished to secure a conviction.1 These commissions were, it is true, usually composed of men who had been judges, but they were not formed on the established plan; and yet government had but too much reason to reckon with confidence on the spirit ofthe courts. Criminal jurisprudence in France was entirely adapted to avenge the wrongs of government, and did not protect individuals at all. In consequence of the aristocratic abuses which oppressed the nation, civil actions were conducted with much more equity than the criminal, because the higher ranks were more interested in them. In France, even at present, very little difference is made between a man brought to trial and a man found guilty; while in England, the judge himselfapprises the accused of the importance of the questions he is about to put to him, and of the danger to which he may expose himself by his answers. To begin with the commissaries of police and end with the application of torture, we find that there scarcely exists a method that has not been employed by the old jurisprudence, and by the tribunals of the Revolution, to ensnare 1. Reference to the special commissions instituted for the punishment ofthose involved in black market or various political activities. FrRevol_151-200.indd 38 3/16/12 1:05 PM PART II the man brought to trial; the man for whom society ought to provide the means ofdefense because it considers itselfto have the sad right oftaking...


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