The Simplicity of criminal Laws in Different Governments

It is generally said that justice should be administered with us as in Turkey.

Is it possible, then, that the most ignorant of all nations should be the most clear-sighted in a point which it most behoves mankind to know?

If we examine the set forms of justice, with respect to the trouble the subject undergoes, in recovering his property, or in obtaining satisfaction for an injury or affront, we shall find them doubtless too numerous= but, if we consider them in the relation they bear to the liberty and security of every individual, we shall often find them too few, and be convinced that the trouble, expence, delays, and even the very dangers, of our judiciary proceedings, are the price that each subject pays for his liberty.

In Turkey, where little regard is shewn to the honour, life, or estate, of the subject, all causes are speedily decided. The method of determining them is a matter of indifference, provided they be determined. The bashaw, after a quick hearing, orders which party he pleases to be bastinadoed, and then sends them about their business.

Here it would be dangerous to be of a litigious disposition= this supposes a strong desire of obtaining justice, a settled aversion, an active mind, and a steadiness in pursuing one’s point. All this should be avoided in a government where fear ought to be the only prevailing sentiment, and in which popular [96] disturbances are frequently attended with sudden and unforeseen revolutions. Here every man ought to know that the magistrate must not hear his name mentioned, and that his security depends entirely on his being reduced to a kind of annihilation.

But, in moderate governments, where the life of the meanest subject is deemed precious, no man is stript of his honour or property but after a long enquiry; and no man is bereft of life till his very country has attacked him; an attack that is never made without leaving him all possible means of making his defence.

Hence it is, that, when a person renders himself absolute*, he immediately thinks of reducing the number of laws. In a government thus constituted, they are more affected with particular inconveniences than with the liberty of the subject, which is very little minded.

In republics, it is plain, that as many formalities, at least, are necessary as in monarchies. In both governments, they increase in proportion to the value which is set on the honour, fortune, liberty, and life, of the subject.

In republican governments, men are all equal; equal they are, also, in despotic governments= in the former, because they are every thing; in the latter, because they are nothing.

Chapter 3= In what Governments, and in what Cases, the Judges ought to determine according to the express Letter of the Law.

THE nearer the government approaches towards a republic, the more the manner of judging becomes [97] settled and fixt= hence it was a fault, in the republic of Sparta, for the Ephori to pass such arbitrary judgements, without having any laws to direct them. The first consuls, at Rome, pronounced sentence in the same manner as the Ephori; but the inconveniency of this proceeding was soon felt, and they were obliged to have recourse to express and determinate laws.

In despotic governments there are no laws; the judge himself is his own rule. There are laws in monarchies; and, where these are explicit, the judge conforms to them; where they are otherwise, he endeavours to investigate their spirit. In republics, the very nature of the constitution requires the judges to follow the letter of the law; otherwise, the law might be explained to the prejudice of every citizen, in cases where their honour, property, or life, are concerned.

At Rome, the judges had no more to do than to declare that the person accused was guilty of a particular crime, and then the punishment was found in the laws, as may be seen in divers laws still extant. In England, the jury give their verdict, whether the fact, brought under their cognizance, be proved or not; if it be proved, the judge pronounces the punishment inflicted by the law, and for this he needs only to open his eyes.

Chapter 4: The Manner of passing Judgement

HENCE arises the different manner of passing judgement. In monarchies the judges choose the method of arbitration= they deliberate together; they communicate their sentiments for the sake of unanimity; they moderate their opinions, in order to render them conformable to those of others; and [98] the lesser number is obliged to give way to the majority. But this is not agreeable to the nature of a republic. At Rome, and in the cities of Greece, the judges never entered into a consultation; each gave his opinion one of these three ways; I absolve; I condemn; it does not appear clear to me*= this was because the people judged, or were supposed to judge. But the people are far from being civilians; all these restrictions and methods of arbitration are above their reach; they must have only one object, and one single fact, set before them; and then they have only to see whether they ought to condemn, to acquit, or to suspend their judgement.

The Romans introduced fet forms of actions†, after the example of the Greeks, and established a rule, that each cause should be directed by its proper action. This was necessary in their manner of judging; it was necessary to fix the state of the question, that the people might have it always before their eyes= otherwise, in a long process, this state of the question would continually change, and be no longer distinguished.

Hence it followed, that the Roman judges granted only the simple demand, without making any addition, deduction, or limitation. But the prætors devised other forms of actions, which were called ex bona fide, where the method of pronouncing sentence was left to the disposition of the judge. This was more agreeable to the spirit of monarchy. Hence it is a saying among the French lawyers, that, in France‡, all actions are ex bona fide.