صور الصفحة
PDF
النشر الإلكتروني

precincts of darkness? Why should they make of a court of justice a den as secret as that of robbers? And if unjust reproaches be cast upon them, why should they complain? is it not always in their own power to put a stop to them?

We have a difficulty in conceiving how Judges, in a painful service, can resolve to deprive themselves of the strong support of public opinion. We have a difficulty in conceiving how they can venture to express themselves in a manner equivalent to-" Trust blindly to my integrity: I am superior to all temptation, all fallibility, all weakness; I am alone my own security; give me implicit credit for virtues more than human." The true honour of a Judge consists in never demanding such confidence; in refusing it, if it be offered; in placing himself above suspicions, by affording no occasion for them; and in giving to the public the entire guardianship of his virtue and conscience.

What are the objections which can be made to an open jurisdic. tion? We never met with any that were tolerable, but in a work published in France, by M. Boucher d'Argis. We will give a sketch of them.

1. It might be to deliver up to public scorn a man, who may be unjustly accused. The case is possible, in imputations of a certain kind. But this is easily obviated, by an exception to the general rule. Except in cases of this sort, as soon as the injustice of an accusation is evident, the accused meets with nothing but compassion and respect.

2. Villains might combine to rescue the guilty from the hands of justice. This very improbable event would not be prevented by the secrecy of the trial. If his associates banded together to rescue him, it would be between the place of arrest and the prison, or between the prison and the court; but in the court itself, the Judge is too well surrounded to fear any such attempt. Such an attempt is unexampled, even in England, where no military is suffered to be near the courts.

3. This publicity, by warning accomplices, might give them the means of escaping.-Is not this warning already given by the arrest of the culprit, and his subsequent imprisonment? Besides, however frequented the courts may be supposed to be, it is not to be presumed they are much so by rogues and their friends. It is not exactly the place they are most pleased with. The thoughts awakened by such a scene have for them more terror than attraction.

4. An accused thief might avail himself of a public examination, to point out to his associates where the stolen effects were, or other matters capable of furnishing evidence. This is to suppose that accomplices voluntarily come to a public examination,

though

though they know the accused has an interest in impeaching them, and that many circumstances of the procedure may detect them. It is to suppose, that a man, in the hands of constables, would find the opportunity of holding a secret conversation, or of speaking by signs, to these same accomplices. It is to suppose, in short, that, if he speak to them aloud, he confesses himself guilty, for the chance of saving them-a kind of heroism, which may exist among rogues, but the case is so rare, that it can scarcely form any valid objection.

5. Publicity may prevent many persons from appearing as witnesses. We reply, that if they be prevented, by the fear of exhibiting in an odious character, this fear must be much stronger, with regard to secret testimony, which may expose them more easily to misrepresentation. If they are prevented by fear of the accomplices, or the friends of the accused, this fear must operate equally against secret testimony, since at last the witnesses are known, by their being confronted with the prisoner.

The witnesses, whom publicity intimidates, are precisely those to whom it would be most dangerous to listen-those who would be tempted to prevaricate in secret, and who are afraid their prevarication would not endure a public examination.

6. It is to hazard our respect for the decisions of justice, to submit them to public opinion—a tribunal incompetent in all respects, by its ignorance, its prejudices, and its caprices.-Give us an enlightened public, Judges may say, and we fear not its observation; we demur only to a blind and impassioned multitude, who would be for making the law, instead of receiving it.

We allow that the fact, on which this observation rests, is but too true in the greater part of states. That portion of the public capable of judging is, indeed, very small, compared with that which is not so: but the practical consequence to be deduced from this fact, is precisely the opposite of that which is actually in operation. The public tribunal is too ignorant to reason accurately, and therefore the knowledge of all that might enlighten it is to be withdrawn. This incapacity is the ground of contempt; and this contempt another for perpetuating the incapacity. Such is the circle in which you revolve-as vicious in logic as it is in morals. It is to treat a nation as the villainous governor did his pupil, when, wishing to mount the throne of the youth, he put out his eyes, and alleged that defect as a legitimate ground of exclusion.

This principle, built on the fear of false judgements in the public, does not, after all, lead to the conclusion which is derived from it. This popular tribunal, incapable of judging as it is, does not judge the less on that account: to attempt to prevent it from judging, is to attempt an impossibility; but it may be prevented

from

from judging well; and all that is done to withdraw judicial proceedings from its knowledge, only tends to multiply its erroneous judgements. The errors of the people, even the false imputations with which it charges the Judges, the unfavourable conceptions which it forms of their tribunals, the favour which it shows to the accused, its hatred of the laws,-all these serious evils are solely the work of those who suppress the publicity of testimony.

If the tribunal of the public cease to form opinions on judicial matters, it is when it has fallen, through excess of ignorance, or discouragement, into a state of absolute indifference. This apathy is, for a nation, a symptom of extreme misery. It is a thousand times better that the people should judge ill, than come to be altogether indifferent about public affairs: each one is absorbed is wrapt in self;—the national link is broken ;—as soon as the public pronounce upon judicial decisions, what is it to us? there are no longer any but masters and slaves.

The publicity of courts of justice has been resisted also under the pretence of a respect for morals, and by alleging the danger of adınitting indiscriminately a crowd of auditors to listen to causes, which necessarily involve inquiries contrary to decorum, fitted to corrupt innocence, and feed a depraved curiosity. It is asserted even, that generally this representation of vices, trickeries, and crimes, must be pernicious by its publicity, and encourage those who are ill-disposed, by showing them how many ways there are of eluding justice.

This objection is just in some respects, and ill-founded in others. There are impure cases, to which it might be dangerous to admit either women or young people, or even the public. Of these we shall speak presently. It must, however, be observed, that spectators, at least of a certain age, have very little to learn, in the details of these vices, and that judicial forms do not present them in a point of view, which excites the imagination, or tends to corrupt it. They are beheld, surrounded by all the accessaries of shame, which publicity gives them; and we doubt whether the most vicious spectator does not quit the court impressed with the terror of being himself subjected to so disgraceful an inquiry.

With respect to crimes of a different nature, there is nothing to be apprehended from the publicity of judicial proceedings in a moral view. Just the contrary. As soon as the temple of Justice is thrown open to all the world, it becomes a national school, where the most important lessons are taught with a degree of force and authority not elsewhere to be equalled. There, morals are founded on the law. The progress of vice to crime, and of crime to punishment, is made conspicuous by striking examples. To hope to instruct the people by sermons, is to presume too much

talent

talent in the preachers, and too much capacity in the audience. But in a judicial scene, instruction is as obvious as it is interesting; and what is thus learned is not easily forgotten. The precept of the law remains engraven in the mind, strengthened by the event with which it is associated. Even theatrical fictions, encompassed with all that can assist illusion, are feeble and fugitive as shadows, in comparison with these real dramas, in which are beheld, in their saddest truth, the effects of crime, the humiliation of the culprit, the anguish of his remorse, and the catastrophe of his trial.

:

If there were no discoverable medium, if there were a necessity for deciding between secret or open jurisdiction, every man capable of reflection would decide for absolute publicity. All general advantages are in its favour. The propriety of a secret, or rather of a private, jurisdiction is applicable to certain cases only, and rests upon particular reasons, which constitute only exceptions. We say private jurisdiction, and not secret; because, in fact, even in these cases of exception, the object is to limit rather than to exclude publicity it is to admit auditors with the consent of the parties only, either for their own satisfaction, or that of the Judge. If, in any cause whatever, the seal of secrecy could be made inviolable from beginning to end, without any one being able to break it, there could be no act of oppression, which, under this impene trable veil, might not be committed with impunity: but if it be in the power of any one of the interested parties to appeal to the tribunal of the public, there can be no abuses to dread. A veil, which the party who believes himself injured, can remove at his pleasure, can never become the mantle of injustice.

1. Among these cases of exception we place first, causes for personal or verbal injuries, where all parties concur in requesting se. crecy, and even where only one of the parties makes this demand; provided the right of appeal in a public court be reserved on the requisition of either party.

By this means a court of justice might be converted, on occasion, into a court of honour, where the matter of offence might be discussed without loss of honour.

2. Family causes come next. We speak not here of causes purely civil, of pecuniary demands, or of disputes concerning succession. We are speaking of causes between man and wife, between father and child,―ill treatment on the one side, and misconduct on the other. We speak particularly of causes of adultery, and of the arcana of the marriage-bed. If, on these sad occasions, justice heals one wound, publicity makes another as painful as it is incurable.

The honour of the sex in particular is of so delicate a nature,

[blocks in formation]

that

that we cannot too much withdraw from public malignity the im prudences, which throw young well-disposed persons into despair, or degrade them for ever.

With respect to females, where natural sensibility is augmented by a cultivated education, the evils of public inquiry are such, that they would prefer suffering a lasting injustice, before recurring to so violent a remedy. The more delicate are their feelings, the more are they at the mercy of their persecutors.

The publicity of family disputes may be prejudicial in another way. A father, a guardian, a master, may have erred with regard to the object of his care, but not in so serious a manner as to deprive him of his authority. Should a public censure be inflicted,even a slight reprimand,-it is so great a check to his influence, it is a triumph so complete for his young antagonist that, from that moment, the feelings of respect are annihilated, and one example of this kind strikes a general blow on parental power.

What is to be done? To avoid so great an evil, to respect an authority even more necessary for those who endure it, than for those who exercise it. A court of justice should shut its ears, if possible, to the complaints of the young person, and give to the superior more protection than he deserves. But transfer the cause from the public tribunal to the Judge's chamber, and he may censure abuses of authority without enfeebling the principles of it, may reprimand a father without humbling him in the eyes of his son, and conceal the orders given in secret, under the appearance of voluntary reconciliation.

3. Causes for rapes, incest, attempts at rape, demand the same reserve, as well for the interests of the offended persons, as for those of morals. The avidity of the public for this sort of causes, proves that shameless details and scandalous disclosures excite more curiosity than repugnance.. Ought publicity to be extended to what does not concern the public? What interest can it have in rending away the veil, which covers disorders, the notoriety of which constitutes the greatest evil?

- If tribunals are to be considered schools of virtue and public morals, women and children at least should be removed in causes, the details of which must wound their sense of shame and decorum.

ART. VIII.-Travels in Egypt and the Holy Land. By W. Rae Wilson, Esq. 1823.

T

HESE travels were undertaken expressly with reference to the Scriptures, to mark the coincidences of ancient and modern usages, to survey and fix the topography of the sacred story, and thence, it should seem, to prove to the sceptic the inspiration

of

« السابقةمتابعة »