1832.J On the State of Criminal Justice in France. 417 



Certain it is, that where no evidence is required where all the ad- 

 vantages belong to the prosecutor, and none to the accused where the 

 judges take a decided part against the latter, and have the last word 

 against him the jury may, in their pretended omnipotence, be in- 

 veigled into an act of injustice ; but when a power above the law itself 

 is applied by the presiding judge to any particular view of the case, 

 which the ex-parte statements of the prosecution may have made him 

 take, it becomes still more difficult for the prisoner to burst his toils ; 

 he must shew innocence in a twenty-fold ratio ere he clear himself 

 from imputation. This formidable power, termed discretionary, is 

 given to the president by the Code d' Instruction Criminelle, Art. 268. 

 Being undefined by the law, it is exercised to an unlimited extent. By 

 it, the president is enabled to dispense with all protecting forms of law, 

 and actually to set aside the solemn judgments of his own court, in 

 which he has concurred as president, but whose effect he paralyzes, en 

 vertu de son pouvoir discretionnaire.* Added to this, is the faculty, 

 which the law ascribes to the presiding judge, of wording the questions 

 put to the jury ; and this is sometimes done so artfully as to produce 

 conviction where acquittal was evidently intended. 



During the reign of Napoleon the operation of these laws was com- 

 paratively mild, because their most oppressive enactments, being princi- 

 pally applied to political offences, were not accompanied by that reck- 

 less thirst for condemnation, which has so disgraced the reigns of Louis 

 XVIII. and Charles X. Since the restoration of the Bourbons this code 

 has been applied to party feuds, prostituted to private malice and 

 revenge, and made a stepping-stone to ambition. The Minisiere Public 

 has actually revelled in the wantonness of his uncontrolled authority ; 

 the most delicate family secrets have been cruelly forced upon the notice 

 of the public the venial faults of youthful indiscretion, long ago for- 

 given and forgotten, have been revived and magnified into heinous 

 offences : in short, the honour and peace of families have been, and are 

 still, at the absolute discretion of men who ought to be made personally 

 responsible for the exercise of a dangerous and unconstitutional power, 

 which they are too much inclined to misuse. 



It might have been expected that the revolution of 1830t would have 

 put an end to a system so contrary to its principles. M. Barthe, the 

 present minister of justice, and his predecessor, M. Merilhou, have 

 both oftentimes admitted the discrepancy between the Code & Instruc- 

 tion Criminelle and a constitutional government. Nevertheless, this 

 code has been suffered to remain, in all its native deformity, as an 

 appendage to constitutional freedom, whose exuberance it is, no doubt, 

 intended to check. The only improvement in the criminal laws, which 

 the Perier administration has deemed expedient, is a partial revision of 

 the penal code, whose operation is merely dependent upon that of 



A disgraceful instance of this occurred, in 1830, at the Cour d'Assises of the 

 Departement du Lot. It is recorded in the " Gazette de Tribunaux" and also, with 

 severe comments, in the " Censeur Judiciaire." Our limits prevent our giving the 

 particulars of the case. 



f When order was restored after this revolution, M. Bernard de Rennes ac- 

 cepted the office of Procureur General at Paris, and M. Barthe that of Procureur 

 du Rol. But these distinguished individuals soon discovered that such offices were 

 not in unison with their high-minded notions of honour and delicacy, and they 

 retained them only a few weeks. 



M.M. New Series. -VoL. XIII. fto. 76. 2 F 



