There was a time when all punishments were pecuniary. The crimes of the subjects were the inheritance of the prince. An injury done to society was a favour to the crown; and the sovereign and magistrates, those guardians of the public security, were interested in the violation of the laws. Crimes were tried, at that time, in a court of exchequer, and the cause became a civil suit between the person accused and the crown. The magistrate then had other powers than were necessary for the public welfare, and the criminal suffered other punishments than the necessity of example required. The judge was rather a collector for the crown, an agent for the treasury, than a protector and minister of the laws. But according to this system, for a man to confess himself guilty was to acknowledge himself a debtor to the crown; which was, and is at present (the effects continuing after the causes have ceased) the intent of all criminal causes. Thus, the criminal who refuses to confess his crime, though convicted by the most undoubted proofs, will suffer a less punishment than if he had confessed; and he will not be put to the torture to oblige him to confess other crimes which he might have committed, as he has not confessed the principal. But the confession being once obtained, the judge becomes master of his body, and torments him with a studied formality, in order to squeeze out of him all the profit possible. Confession, then, is allowed to be a convincing proof, especially when obtained by the force of torture; at the same time that an extrajudicial confession, when a man is at ease and under no apprehension, is not sufficient for his condemnation.
All inquiries which may serve to clear up the fact, but which may weaken the pretensions of the crown, are excluded. It was not from compassion to the criminal, or from considerations of humanity, that torments were sometimes spared, but out of fear of losing those rights which at present appear chimerical and inconceivable. The judge becomes an enemy to the accused, to a wretch a prey to the horrors of a dungeon, to torture, to death, and an uncertain futurity, more terrible than all; he inquires not into the truth of the fact, but the nature of the crime; he lays snares to make him convict himself; he fears lest he should not succeed in finding him guilty, and lest that infallibility which every man arrogates to himself should be called in question. It is in the power of the magistrate to determine what evidence is sufficient to send a man to prison; that he may be proved innocent, he must first be supposed guilty. This is what is called an offensive prosecution; and such are all criminal proceedings in the eighteenth century, in all parts of our polished Europe. The true prosecution, for information, that is, an impartial inquiry into the fact, that which reason prescribes, which military laws adopt, and which Asiatic despotism allows in suits of one subject against another, is very little practised in any courts of justice. What a labyrinth of absurdities! Absurdities which will appear increditable to happier posterity. The philosopher only will be able to read, in the nature of man, the possibility of there ever having been such a system.
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