IMPRISONMENT.
An error, not less common than it is contrary to the object of
society—that is, to the consciousness of personal security—is leaving a
magistrate to be the arbitrary executor of the laws, free at his pleasure
to imprison a citizen, to deprive a personal enemy of his liberty on
frivolous pretexts, or to leave a friend unpunished in spite of the
strongest proofs of his guilt. Imprisonment is a punishment which, unlike
every other, must of necessity precede the declaration of guilt; but
this distinctive character does not deprive it of the other essential
of punishment, namely, that the law alone shall determine the cases
under which it shall be merited. It is for the law, therefore, to point
out the amount of evidence of a crime which shall justify the detention
of the accused, and his subjection to examination and punishment. For
such detention there may be sufficient proofs in common report, in a
man’s flight, in a non-judicial confession, or in the confession of
an accomplice; in a man’s threats against or constant enmity with the
person injured; in all the facts of the crime, and similar indications.
But these proofs should be determined by the laws, not by the judges,
whose decisions, when they are not particular applications of a general
maxim in a public code, are always adverse to political liberty. The
more that punishments are mitigated, that misery and hunger are banished
from prisons, that pity and mercy are admitted within their iron doors,
and are set above the inexorable and hardened ministers of justice, the
slighter will be the evidences of guilt requisite for the legal detention
of the suspected.
A man accused of a crime, imprisoned and acquitted, ought to bear
no mark of disgrace. How many Romans, accused of the gravest crimes
and then found innocent, were reverenced by the people and honoured
with magisterial positions! For what reason, then, is the lot of a
man innocently accused so different in our own times? Because, in the
criminal system now in vogue, the idea of force and might is stronger in
men’s minds than the idea of justice; because accused and convicted are
thrown in confusion into the same dungeon; because imprisonment is rather
a man’s punishment than his mere custody; and because the two forces
which should be united are separated from one another, namely, the
internal force, which protects the laws, and the external force, which
defends the throne and the nation. Were they united, the former, through
the common sanction of the laws, would possess in addition a judicial
capacity, although independent of that possessed by the supreme judicial
power; and the glory that accompanies the pomp and ceremony of a military
body would remove the infamy, which, like all popular sentiments, is more
attached to the manner than the thing, as is proved by the fact that
military prisons are not regarded in public estimation as so disgraceful
as civil ones. There still remain among our people, in their customs and
in their laws (always a hundred years, in point of merit, in arrear of
the actual enlightenment of a nation), there still remain, I say, the
savage impressions and fierce ideas of our ancestors of the North.