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any visible distinction; here are others, stripped of all that makes life enjoyable or serviceable; here are others, equally possessed, we suppose, of the immortal principle, perishing before their faculties develop or expand; while others live the full period of life, and bring their powers to all the maturity, perhaps, and activity, of which they are capable. All this occurs intelligibly and consistently enough with the operation of general causes, the effects of which, we confidently hope, may, and probably will, be compensated in another state of existence.
Mrs. Cappe, once, at dinner, swallowed a small piece of gristle, which stuck in her throat, so as to compress the wind-pipe, and prevent the possibility of breathing; she was miraculously, as we colloquially phrase it, that is, she was unexpectedly, rescued from impending death, by a physician, who happened to be present, and who, by dashing a glass of cold water into her mouth, produced a muscular contraction, which instantly relieved her. On this event she dilates and reasons, in her usual manner, at considerable length. It proves to her the "providence and government of God;" by which she means, if she mean any thing distinctly, that she was really and truly rescued, by what is termed a particular interference—that is, not in the usual course and consequence of the ordinations of providence. She says, if the accident had happened the day before, or the day after, or if the physician had not happened to call, or if he had not been urged to stay dinner, and yielded to the urgency; and again, if he had not had presence of mind enough to employ the only "possible" remedy, the termination must have been fatal. In the course of her reasoning, she puts into the mouth of some supposed opponent, that the obvious way, if a special providence must interpose, would have been to prevent the accident altogether. To which she replies, that then the mercy would have been unperceived. The remark was not very pointed; nor is the solution very satisfactory. The remark which a living opponent would, perhaps, have made, was, that the same providence was necessary to put the bone, as well as the physician, in the way; and so on, ab infinito, to whatever led to the state of things in which the accident occurred; and then the whole concern (not to speak profanely) must seem a very elaborate contrivance, if the intended effect was merely to show the brittleness of life, or on how slender a thread it is suspended-a conviction, which is the natural and constant effect of events which hourly occur, and all consistently with the ordinary march of general laws. It was as well known to Mrs. Cappe and her friends, that the stoppage of breathing by a bone or any other obstruction would be fatal, before this event occurred to her, as after; and ample opportunities of making the discovery had existed from the earliest days of the world.
- If we were required to express ourselves distinctly on these awful points, we should perhaps say, that the Universe appears to be a system of things constructed and conducted according to general laws-the plain result, ordinance and execution of Providence, that is, of the great Creator of all; and that the more we observe the course of events, and the more extended our experience becomes, as well physical as moral, the more we are able to discern the operation of these laws, and to unfold the benevolence and beneficence of their CAUSE.
ART. VII.—On the Publicity of Courts of Justice*.
BLICITY is the best security for testimony, and the decisions dependent on testimony. It is the soul of justice. Itought to extend to every part of the proceedings of the courts of justice, and to every cause, with the exception of a few, of which we shall by and by take notice.
1. With respect to Witnesses, public examination excites all the mental powers concerned in the production of a faithful statement of facts; and in particular, attention, an indispensable quality in the operations of memory. The solemnity of the scene is a preventive against levity and indolence; the natural timidity which sometimes agitates a witness, is sufficiently understood,-it operates only at the first moment, and announces nothing unfavourable to truth.
2. But the great influence of publicity is on the veracity of the witness. Falsehood may be daring where the examination is secret; it is no easy thing to be so in public; it is indeed in the highest degree improbable, unless the person be utterly depraved. So many eyes fixed upon a witness must disconcert his best prepared
* This article is an extract from an unpublished treatise of considerable extent, on the Organization of Courts of Justice, and on Judicial Evidence. It is the production of M. Dumont, and is as usual constructed out of the valuable materials communicated to that incomparable redacteur by Mr. Bentham. In this country, we are in such perfect possession of the right of publicity in judicial matters, that any discussion or consideration of the subject may seem superfluous. We are not precisely of that opinion: we desire to appreciate the rights which we enjoy, convinced it is only by knowing their value, that we shall feel an interest in protecting them. The subject, however, in some of its bearings, will not be found altogether undeserving of attention in our own Courts. The article, it will be perceived, was written for the meridian of Switzerland; and is indeed eminently calculated for the benefit of continental Europe, from north to south. We had the good fortune to discover it in a new periodical work of great promise, published at Geneva, under the title of Annales de Legislation, &c., of which M. Dumont is one of the able conductors. The ability with which the article is written will be a sufficient excuse, if wanting with our readers, for its insertion in THE INQUIRER.
any were of
plan of imposture. He feels that falsehood may meet with contradiction in every one who hears him. A face which is known to him, and a thousand others which are not so, alike disquiet him; and in spite of himself he imagines that the truth, which he is attempting to suppress, will issue from the bosom of the audience, and expose him to all the perils of perjury. He feels that there is, at least, one penalty which he cannot escape-shame in the presence of a crowd of spectators. It is true, if he be of an infamous character, he escapes that shame, by his very infamy; but witnesses of this class are not the most numerous, and Courts of Justice are naturally on their guard against such evidence.
3. Publicity has also another general advantage; by drawing more attention towards particular causes, evidence may be discovered, which would have been lost, had the causes remained unknown.
4. Publicity again has a salutary effect, in creating a public spirit relative to evidence, and in promoting, on this essential point, the instruction of individuals, Discussion on judicial matters enters thus into the course of ordinary ideas, and the public learn to take an interest in their results. The nature and rules of evidence, the different species of proofs, and their degrees of convincing force, come to be much better known, even in classes where we might least expect to find them.
5. But the effects of publicity are of the very highest importance, when considered with reference to Judges, both in securing their integrity, and in conciliating the confidence of the public to their judgement.
It is necessary, as a stimulus, in a course of painful duties, where there is a demand for all their powers, and all their activity; where every hour of carelessness is a triumph for injustice, and a prolongation of suffering for the innocent.
It is necessary, as a check, in the exercise of a power so easily abused. There are defects and faults to be provided against. Defects regard character, and that publicity is not calculated to change; but a Judge, in the presence of a numerous audience, will scarcely venture to give way to impatience, to ill humour, to that despotism of conduct, which intimidates counsel and witnesses, to those partialities, which flatter some and humiliate others;-before the eyes of the public, he will aim at dignity without arrogance, and a course of attentive regard without self-degradation. But whatever may be the effect of publicity on the exterior of the Judge, it cannot fail of being salutary to the justice of his decisions. An appeal from his tribunal to public opinion is constant. Every spectator is an interested observer, who watches all his proceedings, and weighs all his words. How can he escape their suspicions and vigilant regards? How can he dare to pervert justice, in a con
spicuous career, where his every step will be marked? Though he carry injustice in his heart, he must, in spite of himself, be just in a position, where he cannot stir without furnishing evidence against himself.
What substitute can be discovered for publicity? Appealssevere laws against corruption? Without doubt: but consult experience; these expedients have every where been prodigally employed, and every where have been inefficient. Of what force are these appeals and these penalties? They are nothing but warnings to the inferior Judge to keep on good terms with his superior; and the way to keep on good terms with him, is not to administer justice well, but to administer it in a manner most agreeable to him. Political complaisance will be his first virtue. But the sole means of satisfying the public is to administer justice well. That is the price of a nation's approbation.
The punishment of a professional brother will be always painful to his superior. The public have a natural sympathy for the oppressed; but official persons are differently affected, and notwithstanding all their personal hatreds, they have always a common sympathy towards each other, when the maintenance of their authority is at stake.
Besides, of what use is an appeal from one Judge, who may be corrupt in secret, to another Judge, who may be the same, in the same way? Make the proceedings of the first public, and you have no occasion for the second; leave the proceedings of the second secret, and he affords you little more security than the first.
And in this appeal, what is it which is brought before the superior court? Nothing but the skeleton of the process. The soul of the trial exists only in the court, where the witnesses and the parties appear. It is there that the inflections of the voice disclose the feelings of the heart, and the workings of the countenance tell the state of the soul. The audience, and the audience alone, is the true court of appeal, where judicial decisions are appreciated at their just value. What the superior court could never do, but with great expense and delay, and in an imperfect manner, this great committee of the public executes without delay, without expense, and with incorruptible integrity; for the integrity of the public, springing from its own interest, presents the greatest security that can possibly be obtained.
Can the superintendance of the Sovereign supply that of the public? You may as well ask whether the Prince could have time to review every cause. We say nothing of the interest of Cabinets, the danger of favouritism, the improbability that a Minister, who has chosen a bad Judge, will acknowledge the error of his choice, and inflict a disgrace, which must recoil upon himself. Quis
custodiet custodes?-the question which constantly returns, till we finally confide in the Nation itself.
In the last century, we beheld Frederick, in Prussia, and Catherine, in Russia, applying themselves with the most laudable zeal to reform their courts of justice, to banish venality from them, to keep a vigilant eye over the Judges, to oblige them to make regular reports; and to punish their malversations. All their vigilance was of little effect; their good intentions were defeated; their very intervention was not without its inconvenience. And why? Because publicity was wanting in their tribunals; and because without it, all imaginable precautions are only so many spiders-webs.
6. And if publicity be necessary to confirm the integrity of the Judge, it is not less so to secure the confidence of the public. Let us suppose, in the teeth of all probability, that secret justice is always well administered; what is to be gained by it? Scarcely any thing. Integrity might reside in the heart of the Judges; but injustice must be stamped upon their brow. How could the public give the title of Just to men, whom it beheld pursuing a course of conduct, in which injustice alone can gain, and integrity do nothing but lose?
The principal use of real justice, is to produce apparent justice. On the above supposition, there could only be the real, the utility of which is limited; and there would not be the apparent, the utility of which is universal. The root would be in the soil, but the tree would bear no fruit. De non apparentibus et de non existentibus eadem est ratio. The scholastic maxim would in this case be completely substantiated.
And facts are universally in accordance with these principles. The more secret tribunals have been, the more odious they have become. The Inquisition, and the Council of Ten, have disgraced the Governments which adopted them. Crimes, a hundred-fold, perhaps, more than they ever committed, have been imputed to them; but the advocates of secrecy are the only persons, who never have any right to complain of calumny: with whatever severity they may be censured, no injustice can be done them. Observe their own maxims; have they before them a prisoner who attempts any concealment, a counsel who wishes to withdraw a plea, or a witness who declines an answer? they never fail to draw the most unfavourable conclusions. Innocence and mystery seldom go together; and he who tries to conceal, is more than half-convicted! This is their principle. Why should it not be retorted upon themselves? Does not their own conduct furnish the same appearances of criminality? If they were innocent, would they be afraid to appear so? If they had nothing to fear from the regard of the public, why should they shut themselves up in the