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[133] 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[134] 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.
