Page images
PDF
EPUB

whatever proceedings I might wish to examine, should be laid before me. The different pleaders, also, on the circuit, with the most obliging readiness, offered me every explanation of which Į might at any time stand in need. The son of Mr. Scarlett, especially, had the kindness to act as my interpreter ; to accompany me to the Under-Sheriff's, to look over the jurymen's books, and to visit with me the different prisons, which lay in our route.

The work, therefore, which I now submit to the Public, is not so much the fruit of my own observation, as a collection of opinions imparted to me by men of the profoundest information, respecting the matters on which I have treated. I have done my utmost not to mistake the meaning of their words; whenever I have met with a difficulty I have submitted it to them separately, and I have been careful to gain the clearest information upon every point respecting which they might appear to entertain a difference of opinion. I likewise, when my work was finished, confided it to the inspection of Mr. Gray, a young barrister of highly promising talents, and afterwards laid it before Mr. Scarlett, who kindly suspended his own numerous occupations, to correct the errors into which I had occasionally fallen; and even furnished me himself with some notes on the spirit of the English Constitution.

I may then present these pages to the Public, in the full confidence of having neglected nothing, which depended upon myself, that might render them deserving of its attention; and I believe I may venture to affirm that, whatever other merit they may want; that of the utmost correctness will be found to belong to them. I can say in the very spirit of sincerity that I am not conscious of having flattered the English, and that if I have testified an admiration for their character and their institutions which, considering the prejudices against them that exist among us, may appear to some a little exaggerated, it is nevertheless only the result of my perfect conviction that they are a people who have carried further than any other the science of true liberty, and the cultivation of the social virtues by which alone it can be sustained. In the comparison which I have been called upon to make between their criminal code and our own, I have endeavoured to delineate the truth, as it appeared to me, without considering whether it was of a description likely to strengthen, or to shake the exalted opinion of the greatness of our own nation, which the numerous other advantages that we possess justify us, to oure selves, in maintaining. I can never imagine that flattery, which is considered so despicable a vice when applied to an individual, can be deemed a virtue if bestowed upon a people.

It appeared to me that a slight sketch of the manners of the English nation, both in public and private life, would be useful; because it is in fact impossible to understand the laws of a nation unless we also understand the spirit with which they are carried into execution.

The manners of the English have likewise much to recommend them, being influenced rather by their political constitution, than by their climate. I therefore imagined that a picture of them would be particularly interesting to us. From it we shall see that to the daily influence of our new institutions, we shall be indebted for our existing manners, at a future period; or, if these institutions should find more obstacles than they can conquer in our ancient prejudices, it will at least show us the manners which we ought to adopt by a courageous effort on our own parts, in order that we may preserve our liberties.

I have finished by a rapid delineation of the amendments which, it appears to me, might be made in our criminal laws. I have proclaimed, without disguise, abuses wherever they exist, and have been restrained neither by a fear of giving dissatisfaction, or of exciting ill-will against myself. I was desirous that the Chambers, at the moment when their attention was about to be turned towards the revision of our Criminal Code, should be made acquainted with it in its actual state. I am aware that if this work should appear in any respect worthy of public attention, it will probably become an object of critieism to all parties. Some will see in it a design to prepare the minds of the people for the yoke of a new aristocracy; others, on the contrary, will look upon it as written with a desire to instigate them to the demanding of fresh guarantees from the crown. But I console myself in the thought that, at all events, I have acquitted myself of my duty as a citizen, and that the example of a nation so long satisfied with a criminal code full of humanity, and commiseration for the accused, may probably have some influence upon our ancient and barbarous usages, soften their severity, and induce us to make such alterations in them as the honor of our national character imperiously deniąnds. I may deceive myself in my view of the advantages which it appears to me we might derive from adopting certain modes in English judicature ; but at any rate I have formed it with sincerity, and divested of any prejudice whatever in favor of foreign institutions. The rapid progress, however, of the institutions of which I speak, compared with the difficulty which ours find in moving a single step, has made so lively an impression upon me, that I cannot help passionately desiring them to be so far copied by us, as to make us, in our turn, by our administra. tion of justice in criminal cases, the object at once of envy and emulation to surrounding countries.

ON THE ADMINISTRATION

OF

THE CRIMINAL CODE IN ENGLAND,

AND

ON THE SPIRIT

OF THE ENGLISH GOVERNMENT.

CHAPTER I.

PRELIMINARY OBSERVATIONS.

In order to form a correct idea of the proceedings in criminal cases which are established in England, it is necessary to be previously acquainted with certain civil and political regulations, which have a great influence on many parts of these proceedings.

In England property is not divided, as in France, among all the children of a family. Large estates are in general entailed, and in all classes of society, from the peer down to the lowest shopkeeper, the law gives all the real property to the eldest son, and leaves nothing to the other children but the personal property, which is shared among them. It is true that parents have an unlimited power to dispose of the whole of their property in any way that they may think fit; but it is very rarely that they avail themselves of this right, so far as to deal it out in equal portions; and though it is difficult to speak precisely as to the fortunes allotted to younger children, insomuch as they are generally regulated by the particular temper or judgment of the testator, yet this is certain, that they are always much inferior to that of the eldest.

Thus the manners of the nation, so far from being in opposition to the laws, are on the contrary in unison with the very spirit of them; and in all families this principle of inequality of property and of the succession of the eldest to almost the whole of the real estate, is held inviolably sacred.

This law, and the manners which accommodate themselves to

it, are fruitful in great results. The most important of them all is that of attaching every family, not merely to its property, but likewise to the county in which that property may be situated ; and this attachment often becomes so lively, nay I may say so religious a sentiment, that there are many estates which have belonged to the same family ever since the time of the Conquest. A man naturally takes a pleasure in improving and embellishing the spot which he knows will descend to his most distant posterity. Hence there is no rural scenery which wears so seducing an aspect as that of England, covered as it is with parks which exhibit the ablest cultivation, and are animated by the sports and frolics of the multitude of domestic animals which find a safe asylum within their boundaries. Every gentleman is as particular in the care of his garden as of his house, and would be ashamed that a stranger should see it in a state of disorder or neglect. The

eye

of the master is always equally vigilant, because in fact the master himself never grows old. When age begins to make him indifferent to the pleasures of the world, when wealth offers its seductions to him in vain, and when he no longer attaches importance to anything excepting what is connected with eternity, his place is filled up by his eldest son, whose youth binds him more closely to the things of this life, and who, sure of the next possession of the family property, watches over it with a care which becomes proportionably more active as his father draws more rapidly to the end of his career. It is not however merely to the order of succession that we ought to attribute the custom, so common among the English, of passing the greatest part of the year upon their estates, for in the province of France where the same order of succession was formerly observed, the owners of landed property were exactly as much in the contrary habit of shutting themselves up in cities, and making them the principal seat of their affairs. This custom in the English therefore is the result of all their municipal institutions, which, as I shall show, confer on the principal persons in every county not only the almost entire government of that county, but also the levying, distribution, and employment of a great part of the taxes, the administration of justice, and maintenance of public order.

It is the hope of arriving at these municipal dignities which, added to the effect of the system of succession that I have just been speaking of, retains every landed proprietor on his own estate, and makes him prefer a residence there, occupied and animated as it is by a thousand interests, to one in the capital, which would be frittered away in tasteless pleasures and frivolous engagements.

By this means the numerous and important class of landed proprietors, so far from being collected into one narrow focus, are scattered over the whole face of the empire, and contribute to carry into the remotest corners of it a spirit of instruction and refinement of manners, as well as a knowledge of all the useful and pleasing inventions which they become acquainted with, during their winter's residence in the capital. A stranger easily perceives the effect which the influence of persons in easy circumstances has upon the general mass of the people.. He is surprised that, in going through England, he no where sees the provincial peculiarities which are so striking in every other country. He finds from one end of the kingdom to the other nearly the same style of dress, the same habits, the same comforts, the same carriages, and almost the same language. This nation has no appearance of being an assemblage of different nations, nominally united under the same government, but in fact always separated by their ancient manners and customs. The English people seem to make up one entire people, governed by the same laws, animated by the same institutions, proud of the same rights, and bound together by the same interests, the same inclinations, and even by the same prejudices. Their occupations on their estates are analogous either to the end which they propose to themselves, or which they may have already attained, viz. the obtaining some of the executive employments which are only assigned to persons of the first consequence, as for instance that of the grand jury. This consideration makes them anxious to attract the attention and respect of the public by every means in their power ; by the most exemplary conduct in the interior of their family; by a punctual discharge of all their official duties ; by a general courtesy towards their inferiors ; and by spirited experiments in agriculture. They make a point of contributing, as far as they can, to the splendor and gaiety of all their provincial entertainments, such as annual musical festivals, horse-races, and the balls which are always held during the time of the assizes.

They look upon these meetings as a sort of family party; they defray the expenses of them by subscriptions among themselves; and appear at them in their most elegant equipages, and accompanied by their wives and daughters. They likewise attend all the political meetings in the county, and endeavour to distinguish themselves, if not as orators, at least as Englisħmen, versed in the knowledge of their laws, and the real interests of their country.

To them rural life presents none of that monotony which almost always belongs to confined situations; on the contrary it is perpetually, though agreeably, agitated by the necessity, which they feel, for the respect of ihose around them. Thus a family, on first coming into a county, restrains its wishes for a time, and contents itself with receiving invitations and exchanging civilities ;

« PreviousContinue »