Front Page Titles (by Subject) CHAPTER XII: Of Criminal Justice. - The Constitution of England; Or, an Account of the English Government
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CHAPTER XII: Of Criminal Justice. - Jean Louis De Lolme, The Constitution of England; Or, an Account of the English Government 
The Constitution of England; Or, an Account of the English Government, edited and with an Introduction by David Lieberman (Indianapolis: Liberty Fund, 2007).
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Of Criminal Justice.
We are now to treat of an article, which, though it does not in England, and indeed should not in any State, make part of the powers which are properly Constitutional, that is, of the reciprocal rights by means of which the Powers that concur to form the Government constantly balance each other, yet essentially interests the security of individuals, and, in the issue, the Constitution itself; I mean to speak of Criminal Justice. But, previous to an exposition of the laws of England on this head, it is necessary to desire the Reader’s attention to certain considerations.
When a Nation entrusts the power of the State to a certain number of persons, or to one, it is with a view to two points: the one, to repel more effectually foreign attacks; the other, to maintain domestic tranquillity.
To accomplish the former point, each individual surrenders a share of his property, and sometimes, to a certain degree, even of his liberty. But, though the power of those who are the Heads of the State may thereby be rendered very considerable, yet it cannot be said, that liberty is, after all, in any high degree endangered, because, should ever the Executive Power turn against the Nation a strength which ought to be employed solely for its defence, this Nation, if it were really free, by which I mean, unrestrained by political prejudices, would be at no loss for providing the means of its security.
In regard to the latter object, that is, the maintenance of domestic tranquillity, every individual must, exclusive of new renunciations of his natural liberty, moreover surrender, which is a matter of far more dangerous consequence, a part of his personal security.
The Legislative power, being, from the nature of human affairs, placed in the alternative, either of exposing individuals to dangers which it is at the same time able extremely to diminish, or of delivering up the State to the boundless calamities of violence and anarchy, finds itself compelled to reduce all its members within reach of the arm of the public Power, and, by withdrawing in such cases the benefit of the Social strength, to leave them exposed, bare, and defenceless, to the exertion of the comparatively immense power of the Executors of the laws.
Nor is this all; for, instead of that powerful re-action which the public authority ought in the former case to experience, here it must find none; and the law is obliged to proscribe even the attempt of resistance. It is therefore in regulating so dangerous a power, and in guarding lest it should deviate from the real end of its institution, that legislation ought to exhaust all its efforts.
But here it is of great importance to observe, that the more powers a Nation has reserved to itself, and the more it limits the authority of the Executors of the laws, the more industriously ought its precautions to be multiplied.
In a State where, from a series of events, the will of the Prince has at length attained to hold the place of law, he spreads an universal oppression, arbitrary and unresisted; even complaint is dumb; and the individual, undistinguishable by him, finds a kind of safety in his own insignificance. With respect to the few who surround him, as they are at the same time the instruments of his greatness, they have nothing to dread but momentary caprices; a danger against which, if there prevails a certain general mildness of manners, they are in a great measure secured.
But in a State where the Ministers of the laws meet with obstacles at every step, even their strongest passions are continually put in motion; and that portion of public authority, deposited with them to be the instrument of national tranquillity, easily becomes a most formidable weapon.
Let us begin with the most favourable supposition, and imagine a Prince whose intentions are in every case thoroughly upright,—let us even suppose that he never lends an ear to the suggestions of those whose interest it is to deceive him: nevertheless, he will be subject to error: and this error, which, I will farther allow, solely proceeds from his attachment to the public welfare, yet may very possibly happen to prompt him to act as if his views were directly opposite.
When opportunities shall offer (and many such will occur) of procuring a public advantage by overleaping restraints, confident in the uprightness of his intentions, and being naturally not very earnest to discover the distant evil consequences of actions in which, from his very virtue, he feels a kind of complacency, he will not perceive, that, in aiming at a momentary advantage, he strikes at the laws themselves on which the safety of the Nation rests, and that those acts, so laudable when we only consider the motive of them, make a breach at which tyranny will one day enter.
Yet farther, he will not even understand the complaints that will be made against him. To insist upon them will appear to him to the last degree injurious: pride, when perhaps he is least aware of it, will enter the lists; what he began with calmness, he will prosecute with warmth; and if the laws shall not have taken every possible precaution, he may think he is acting a very honest part, while he treats as enemies of the State, Men whose only crime will be that of being more sagacious than himself, or of being in a better situation for judging of the results of measures.
But it were mightily to exalt human nature, to think that this case of a Prince who never aims at augmenting his power, may in any shape be expected frequently to occur. Experience, on the contrary, evinces that the happiest dispositions are not proof against the allurements of power, which has no charms but as it leads on to new advances: authority endures not the very idea of restraint; nor does it cease to struggle till it has beaten down every boundary.
Openly to level every barrier, at once to assume the absolute Master, are, as we said before, fruitless tasks. But it is here to be remembered, that those powers of the People which are reserved as a check upon the Sovereign, can only be effectual so far as they are brought into action by private individuals. Sometimes a Citizen, by the force and perseverance of his complaints, opens the eyes of the Nation; at other times, some member of the Legislature proposes a law for the removal of some public abuse: these, therefore, will be the persons against whom the Prince will direct all his efforts (a) .
And he will the more assuredly do so, as, from the error so usual among Men in power, he will think that the opposition he meets with, however general, wholly depends on the activity of but one or two leaders; and amidst the calculations he will make, both of the supposed smallness of the obstacle which offers to his view, and of the decisive consequence of the single blow he thinks he needs to strike, he will be urged on by the despair of ambition on the point of being baffled, and by the most violent of all hatreds, that which was preceded by contempt.
In that case which I am still considering, of a really free Nation, the Sovereign must be very careful that military violence do not make the smallest part of his plan: a breach of the social compact like this, added to the horror of the expedient, would infallibly endanger his whole authority. But, on the other hand, as he has resolved to succeed, he will in defect of other resources, try the utmost extent of the legal powers which the Constitution has intrusted with him; and if the laws have not in a manner provided for every possible case, he will avail himself of the imperfect precautions themselves that have been taken, as a cover to his tyrannical proceedings; he will pursue steadily his particular object, while his professions breathe nothing but the general welfare, and destroy the assertors of the laws, under the very shelter of the forms contrived for their security (a) .
This is not all; independently of the immediate mischief he may do, if the Legislature do not interpose in time, the blows will reach the Constitution itself; and the consternation becoming general amongst the People, each individual will find himself enslaved in a State which yet may still exhibit all the common appearances of liberty.
Not only, therefore, the safety of the individual, but that of the Nation itself, requires the utmost precautions in the establishment of that necessary, but formidable, prerogative of dispensing punishments. The first to be taken, even without which it is impossible to avoid the dangers above suggested, is, that it never be left at the disposal, nor, if it be possible, exposed to the influence, of the Man who is the depositary of the public power.
The next indispensable precaution is, that neither shall this power be vested in the legislative Body; and this precaution, so necessary alike under every mode of Government, becomes doubly so, when only a small part of the Nation has a share in the legislative power.
If the judicial authority were lodged in the legislative part of the People, not only the great inconvenience must ensue of its thus becoming independent, but also that worst of evils, the suppression of the sole circumstance that can well identify this part of the Nation with the whole, which is, a common subjection to the rules which they themselves prescribe. The legislative Body, which could not, without ruin to itself, establish, openly and by direct laws, distinctions in favour of its Members, would introduce them by its judgments; and the People, in electing Representatives, would give themselves Masters.
The judicial power ought therefore absolutely to reside in a subordinate and dependent body; dependent, not in its particular acts, with regard to which it ought to be a sanctuary, but in its rules and in its forms, which the legislative authority must prescribe. How is this body to be composed? In this respect farther precautions must be taken.
In a State where the Prince is absolute Master, numerous Bodies of Judges are most convenient, inasmuch as they restrain, in a considerable degree, that respect of Persons which is one inevitable attendant on that mode of Government. Besides, those bodies, whatever their outward privileges may be, being at bottom in a state of great weakness, have no other means of acquiring the respect of the people than their integrity, and their constancy in observing certain rules and forms: nay, these circumstances united, in some degree over-awe the Sovereign himself, and discourage the thoughts he might entertain of making them the tools of his caprices (a) .
But, in an effectually limited Monarchy, that is, where the Prince is understood to be, and in fact is, subject to the laws, numerous Bodies of Judicature would be repugnant to the spirit of the Constitution, which requires, that all powers in the State should be as much confined as the end of their institution can allow; not to add, that in the vicissitudes incident to such a State, they might exert a very dangerous influence.
Besides, that awe which is naturally inspired by such Bodies, and is so useful when it is necessary to strengthen the feebleness of the laws, would not only be superfluous in a State where the whole power of the Nation is on their side, but would moreover have the mischievous tendency to introduce another sort of fear than that which Men must be taught to entertain. Those mighty Tribunals, I am willing to suppose, would preserve, in all situations of affairs, that integrity which distinguishes them in States of a different Constitution; they would never inquire after the influence, still less the political sentiments, of those whose fate they were called to decide; but these advantages not being founded in the necessity of things, and the power of such Judges seeming to exempt them from being so very virtuous, Men would be in danger of taking up the fatal opinion, that the simple exact observance of the laws is not the only task of prudence: the Citizen called upon to defend, in the sphere where fortune has placed him, his own rights, and those of the Nation itself, would dread the consequence of even a lawful conduct, and though encouraged by the law, might desert himself when he came to behold its Ministers.
In the assembly of those who sit as his Judges, the Citizen might possibly descry no enemies: but neither would he see any Man whom a similiarity of circumstances might engage to take a concern in his fate: and their rank, especially when joined with their numbers, would appear to him, to lift them above that which over-awes injustice, where the law has been unable to secure any other check, I mean the reproaches of the Public.
And these his fears would be considerably heightened, if, by the admission of the Jurisprudence received among certain Nations, he beheld those Tribunals, already so formidable, wrap themselves up in mystery, and be made, as it were, inaccessible (a) .
He could not think, without dismay, of those vast prisons within which he is one day perhaps to be immured—of those proceedings, unknown to him, through which he is to pass—of that total seclusion from the society of other Men—nor of those long and secret examinations, in which, abandoned wholly to himself, he will have nothing but a passive defence to oppose to the artfully varied questions of Men whose intentions he shall at least mistrust, and in which, his spirits broken down by solitude, shall receive no support, either from the counsels of his friends, or the looks of those who shall offer up vows for his deliverance.
The security of the individual, and the consciousness of that security, being then equally essential to the enjoyment of liberty, and necessary for the preservation of it, these two points must never be left out of sight, in the establishment of a judicial power; and I conceive that they necessarily lead to the following maxims.
In the first place I shall remind the reader of what has been laid down above, that the judicial authority ought never to reside in an independent Body; still less in him who is already the trustee of the executive power.
Secondly, the party accused ought to be provided with every possible means of defence. Above all things, the whole proceedings ought to be public. The Courts, and their different forms, must be such as to inspire respect, but never terror; and the cases ought to be so accurately ascertained, the limits so clearly marked, as that neither the executive power, nor the Judges, may ever hope to transgress them with impunity.
In fine, since we must absolutely pay a price for the advantage of living in society, not only by relinquishing some share of our natural liberty (a surrender which, in a wisely framed Government, a wise Man will make without reluctance) but even also by resigning part of even our personal security, in a word, since all judicial power is an evil, though a necessary one, no care should be omitted to reduce as far as possible the dangers of it.
And as there is however a period at which the prudence of Man must stop, at which the safety of the individual must be given up, and the law is to resign him over to the judgment of a few persons, that is, to speak plainly, to a decision in some sense arbitrary, it is necessary that this law should narrow as far as possible this sphere of peril, and so order matters, that when the subject shall happen to be summoned to the decision of his fate by the fallible conscience of a few of his fellow-creatures, he may always find in them advocates, and never adversaries.
[(a) ]By the word Prince, I mean those who, under whatever appellation and in whatever Government it may be, are at the head of public affairs.
[(a) ]If there were any person who charged me with calumniating human Nature, for it is her alone I am accusing here, I would desire him to cast his eyes on the History of a Lewis XI.—of a Richelieu, and, above all, on that of England before the Revolution: he would see the arts and activity of Government increase, in proportion as it gradually lost its means of oppression. [[De Lolme’s examples—the government of France under King Louis XI (1461–83) and under Cardinal Richelieu’s leadership (1624–42), and the government of England before 1688—illustrate the general tendency of sovereigns to expand and consolidate political power beyond established legal boundaries.]]
[(a) ]The above observations are in a great measure meant to allude to the French Parlemens, and particularly that of Paris, which forms such a considerable Body as to have been once summoned as a fourth Order to the General Estates of the kingdom. The weight of that body, increased by the circumstance of the Members holding their places for life, has in general been attended with the advantage just mentioned, of placing them above being over-awed by private individuals in the administration either of civil or criminal Justice; it has even rendered them so difficult to be managed by the Court, that the Ministers have been at times obliged to appoint particular Judges, or Commissaries, to try such Men as they had resolved to ruin.
[(a) ]An allusion is made here to the secrecy with which the proceedings, in the administration of criminal Justice, are to be carried on, according to the rules of the civil law, which in that respect are adopted over all Europe. As soon as the prisoner is committed, he is debarred of the sight of every body, till he has gone through his several examinations. One or two Judges are appointed to examine him, with a Clerk to take his answers in writing; and he stands alone before them in some private room in the prison. The witnesses are to be examined apart, and he is not admitted to see them till their evidence is closed: they are then confronted together before all the Judges, to the end that the witnesses may see if the prisoner is really the Man they meant in giving their respective evidences, and that the prisoner may object to such of them as he shall think proper. This done, the depositions of those witnesses who are adjudged upon trial to be exceptionable, are set aside: the depositions of the others are to be laid before the Judges, as well as the answers of the prisoner, who has been previously called upon to confirm or deny them in their presence; and a copy of the whole is delivered to him, that he may, with the assistance of a Counsel, which is now granted him, prepare for his justification. The judges are, as has been said before, to decide both upon the matter of law and the matter of fact, as well as upon all incidents that may arise during the course of the proceedings, such as admitting witnesses to be heard in behalf of the prisoner, &c.