OF THE TREASURY.
There was a time when nearly all penalties were pecuniary. Men’s crimes
were the prince’s patrimony; attempts against the public safety were
an object of gain, and he whose function it was to defend it found his
interest in seeing it assailed. The object of punishment was then a
suit between the treasury, which exacted the penalty, and the criminal:
it was a civil business, a private rather than a public dispute, which
conferred upon the treasury other rights than those conferred upon it by
the calls of the public defence, whilst it inflicted upon the offender
other grievances than those he had incurred by the necessity of example.
The judge was, therefore, an advocate for the treasury rather than an
impartial investigator of the truth, an agent for the Chancellor of
the Exchequer rather than the protector and minister of the laws. But
as in this system to confess a fault was the same thing as to confess
oneself a debtor to the treasury, that being the object of the criminal
procedure in those days, so the confession of a crime, and a confession
so managed as to favour and not to hurt fiscal interests, became and
still remains (effects always outlasting their causes so long) the
centre point of all criminal procedure. Without such confession a
criminal convicted by indubitable proofs will incur a penalty less than
the one legally attached to his crime; and without it he will escape
torture for other crimes of the same sort which he may have committed.
With it, on the other hand, the judge becomes master of a criminal’s
person, to lacerate him by method and formality, in order to get from
him as from so much stock all the profit he can. Given the fact of the
crime as proved, confession affords a convincing proof; and, to make this
proof still less open to doubt, it is forcibly exacted by the agonies and
despair of physical pain; whilst at the same time a confession that is
extra-judicial, that is tendered calmly and indifferently, and without
the overpowering fears of a trial by torture, is held insufficient for a
verdict of guilt. Inquiries and proofs, which throw light upon the fact,
but which weaken the claims of the treasury, are excluded; nor is it out
of consideration for his wretchedness and weakness that a criminal is
sometimes spared from torture, but out of regard for the claims which
this entity, now mythical and inconceivable, might lose. The judge
becomes the enemy of the accused, who stands in chains before him, the
prey of misery, of torments, and the most terrible future; he does not
seek to find the truth of a fact, but to find the crime in the prisoner,
trying to entrap him, and thinking it to the loss of his own credit if
he fail to do so, and to the detriment of that infallibility which men
pretend to possess about everything. The evidence that justifies a man’s
imprisonment rests with the judge; in order that a man may prove himself
innocent, he must first be declared guilty: that is called an _offensive
prosecution_; and such are criminal proceedings in nearly every part of
enlightened Europe, in the eighteenth century. The real prosecution, the
_informative_ one—that is, the indifferent inquiry into a fact, such
as reason enjoins, such as military codes employ, and such as is used
even by Asiatic despotism in trivial and unimportant cases—is of very
scant use in the tribunals of Europe. What a complex maze of strange
absurdities, doubtless incredible to a more fortunate posterity! Only the
philosophers of that time will read in the nature of man the possible
actuality of such a system as now exists.