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The French Revolution and the organization of justice
Adrien Duport FUNDAMENTAL PRINCIPLES OF POLICING AND JUSTICE, SUBMITTED ON BEHALF OF THE COMMITTEE ON THE CONSTITUTION
22 December 1789
At the point where the joint Committees on the Constitution and the
Criminal Law are about to submit to the National Assembly the plan for
the organization of the police and the criminal justice system, I thought
it might be useful to offer in advance the essential foundations of our
work for the reflection of those who will be attending to these important
subjects. It is a disadvantage for the members of the National Assembly
that, because they are forced to move quickly from one subject to another,
they do not always arrive prepared by reflection upon the subjects being
considered. This disadvantage would be most disastrous for the present
subject, since simple errors can produce the most unpleasant consequences
for the honour, liberty and life of the citizens.
Art. 1. The police and justice, like all other institutions of society,
are established solely for the common benefit of the members of society;
their purpose is to ensure that every member can exercise his natural
and civil rights and to guarantee that every member may enjoy these rights
free from the interference that might be caused by other individuals.
Art. 2. Since all men have, by nature, an equal right to life, honour
and liberty, anyone who kills, injures, abuses or illegally detains a
man, violates the natural rights of that man.
Art. 3. Since all men have, as members of society, an equal right to
their security and their property, anyone who steals, destroys or unjustly
detains the property of an individual violates the civil rights of that
individual.
Art. 4. The only means that society has of guaranteeing for all the
exercise and enjoyment of their natural and civil rights consists in
giving everyone sufficient incentives to force him to respect the rights
of others.
Art. 5. The first and most important of these incentives is that the
laws are just, equal for all, made and directed solely to the happiness
of all; that everyone may see in the respect in which his rights are
held the respect that he must show for the rights of others.
Art. 6. Without this condition, the peace of society is not even desirable;
it is merely a compulsory order and the motivation is no longer justice
but fear. Society does not have the right to impose the enforcement of
such laws, because what right would it have to require that an individual
observe justice when society itself failed to observe it in respect of
that individual?
Art. 7. The second of these reasons is the establishment of punishments.
If the laws are just and wise, if they ensure for everyone the enjoyment
of his rights, then only the law can impose punishments on those who
tend to break the laws or, what is the same thing, to disturb the exercise
of the natural and civil rights of individuals.
Art. 8. With respect to punishment, the minimum sentence is required
by humanity and counselled by policy. Whenever the purpose of the law
can be achieved by a particular punishment, it is a barbarity and a crime
on the part of the legislature to impose a harsher one. Furthermore,
this weakens a powerful motivator of public order and justice.
Art. 9. In an arbitrary and illegitimate government, people are forced
to prescribe very harsh punishments to force men to obey laws that are
unjust and contrary to their happiness; in a free and legitimate polity,
on the other hand, since the main motivator must be justice, equality
and the wisdom of the laws, punishments must be moderate.
Art. 10. It is not because the law prohibits an action that it becomes
a crime, but the law must prohibit an action in order to have the right
to punish it.[1] Thus,
a man is unjustly punished (1) when the action he commits is not prohibited
by a specific law; (2) when the punishment that is imposed on him is
not precisely indicated; (3) when society has not taken the steps to
make the man familiar with these two laws.
Art. 11. In order for the reasoning behind punishments to impact uniformly
on every individual, punishments must be proportionate: (1) to the sensibility
of everyone; and (2) to the extent to which the action in question was
immoral.
Art. 12. The extreme difficulty of determining this measure, and the
danger of leaving its application to judges, has led to the adoption
of the contrary maxim: that punishments for the same crimes must be equal
for all citizens.
Art. 13. Society does not have the right to establish any punishment,
the spectacle of which may lead men to be cruel and diminish their respect
for the dignity of the human race.
Art. 14. It is primarily to the prevention of crime that social institutions
must be directed. What must be done in this regard out of humanity is
still a good policy. It is easier, simpler and safer to keep the peace
than to restore it once it has been disturbed.
Art. 15. Reason and experience have proved that men were restrained
more by the certainty of punishment than by the intensity of the penalty.
Society must therefore take the most specific precautions to ensure that
all guilty persons are punished.
Art. 16. Society owes security and peace to all and justice to everyone.
It is necessary therefore that all citizens be able to complain without
hindrance, that a man may be arrested on mere suspicions, but that judgment
may be rendered only on complete conviction. Policing that is exact without
inquisition, justice that is humane and public, sentences that are moderate
but inevitable: that is the system of free countries.
Art. 17. Two separate institutions contain the means to guarantee property,
honour and life for men. These two institutions are the police and justice.
Art. 18. Everything relating to the means of preventing crime, restoring
order quickly, seizing and detaining those who have disturbed the peace,
is within the purview of the police. Everything relating to the means
of checking the facts that lead to a prosecution and thereby enforcing
the law belongs essentially to the justice system.
Art. 19. It is necessary to accurately observe this distinction,[2] because
each of these institutions has a different character and their approaches
are almost opposites. Justice must proceed with a great deal of reflection
and with very strict forms; it must be determined only by the highest
possible degree of certainty. The police, on the other hand, are forced
to act more expeditiously and must often rely solely on clues.[3]
Art. 20. One of the most certain means of preventing crime is to prohibit
begging and arrest beggars. If this is done, individual liberty is not
violated, because while every individual has the right to require society
to provide him with work, or assistance if he is infirm, society, for
its part, has the right to require that every valid citizen work for
his living.
Art. 21. All citizens have a duty to assist in restoring order, not
merely through their own moderation but also by endeavouring to restrict
those who disturb the peace and to arrest them, if that should be necessary;
because all citizens are, so to speak, jointly responsible in the eyes
of the law for ensuring compliance with order and justice.
Art. 22. It is also the duty of every citizen to obey the police, and
if a citizen refuses, he must be forced to do so. However, society has
a duty to every citizen: (1) not to detain a man as soon as he is able
to present sufficient security to answer for the act he is alleged to
have committed; (2) when it is necessary to temporarily deprive a man
of his liberty, not to add any penalty to this deprivation; (3) when
a man is arrested, to watch over his fate and his existence more carefully
and to protect him more particularly since he is no longer under the
eyes of his fellow citizens and lacks the means to ensure his preservation
on his own.
Art. 23. Thus, (1) for an offence that deserves only a financial punishment,
a civil remedy or even a sentence involving loss of civil rights, a monetary
security must be sufficient; and thus, (2) society does not have the
right to place a citizen in unhealthy or uncomfortable prisons, because
a man who is accused or even charged is always presumed to be innocent.
Art. 24. In order to ensure that the right to arrest a man before he
is convicted does not violate individual liberty, two things are required:
the first, that this power be entrusted to men chosen by the people who
have integrity and are humane and that it be organized in the best manner
possible to prevent abuse; the second, that a man who is arrested should
be brought before a judge at once.[4]
Art. 25. When these conditions are met, the preventive custody of an
individual is no more a violation of his individual liberty than the
punishment of a convicted person is a violation of his security. It is
an essential condition of the contract they have made with society.
Art. 26. Any man who refuses to appear for trial and hides from justice
loses any right to the protection of the law; he shall be denied any
resort to the courts and any legal action, because in order to enjoy
the benefits of society, a man must fulfil the obligations that society
imposes.
Art. 27. Since the imperfection of men and the means they use to determine
the truth always make it possible for errors of justice to arise and,
on the other hand, since a man who is arrested may be deprived of his
liberty for a long time while his trial proceeds, it follows that precautions
must be taken to prevent a man from being subject to court proceedings
out of malice or lack of consideration. The best of all these precautions
is the situation where a number of honest citizens decide whether a man
who is charged with a crime must or must not be tried.[5]
Art. 28. When a man appears before the courts, it is the task of society
or of the person who complains to prove that he is guilty; otherwise,
he must be declared to be innocent, regardless of what his defence might
be.
Art. 29. All defences must be allowed to the accused. Nothing written
against the accused may be relied on without it being disclosed to him.
Any means of enlightening the justice system and limiting the judges
to the strict fulfilment of their duties must be established by society.
Thus, (1) the proceedings must be public, as well as the pretrial investigation;
(2) there must be an authority that can compel the judges to act in accordance
with the law.
Art. 30. The law and the forms it prescribes are, especially in criminal
matters, the most precious of public property, and it is necessary for
society to delegate a man with special responsibility for ensuring that
the law is complied with.
Art. 31. When a man is brought before the courts, it is necessary to
examine whether the act alleged against him was truly committed by him
and then whether it is prohibited by law. A man may be convicted only
when these two factors are present.
Art. 32. Since the testimony of men is the most common item of evidence
in court, it must be capable of effecting the deep-seated conviction
of a number of honest and disinterested men. They must not therefore
be deprived of any of the circumstances capable of ensuring or undermining
the truth thereof. It is accordingly necessary for witnesses to explain
themselves viva voce and not in writing. Furthermore, witnesses
must not be placed in a position where they are forced to cause an innocent
to perish or to perish themselves. Thus, far from being highly favourable
to an accused, written depositions on the basis of which a witness may
be prosecuted for bearing false testimony if he retracts his statements
are a very harmful institution for an accused because they force a man,
out of concern for his own life, to support a false proposition that
can lead to the conviction of the accused.
Art. 33. Society should only allow a man to be convicted when his act
has been confirmed in the manner and by the means capable of creating
the highest possible degree of certainty.[6]
Art. 34. When the act is verified, the judge may impose a sentence only
when there is a positive law decreeing such a sentence, and this law
must be referred to in the judgment.
Art. 35. In order for an action to be punishable, it is necessary for
its perpetrator to have intended the action. Where there is no intent,
there cannot be a crime. Thus, the action of a child or a madman cannot
be regarded as punishable in the eyes of the law. The same is not true
of drunkenness, because a person who engages therein knows beforehand
that he is placing himself in a situation where he may commit punishable
acts.
Art. 36. As long as a man is accused, he has the right not only to the
indulgence but even to the respect and protection of society, because
he is defending his life and his honour against men at liberty who are
attacking him. He must also be able to use in his defence all the means
given to men to determine the truth. He must be permitted to use his
friends or counsel in this situation.
Art. 37. If a man has been found innocent, society must provide him
with compensation because he has suffered alone for the security of all.
Art. 38. If he is found guilty, he loses all or part of his
rights as a citizen while he serves his sentence. However, he retains
his human rights at all times. Insulting or mistreating him is an act
of cowardice and a punishable offence.
These are the foundations on which the police and justice should be
based. These two institutions serve to preserve liberty, order and peace
among men. These are the means of firmly establishing this general and
reciprocal guarantee of all the rights of man, the principle according
to which they join together in society. Finally, this is the way to reach
the solution for this major social problem. To find out how, with the
smallest possible inconvenience to each individual, it is possible to
ensure that all can enjoy their abilities, their resources and their
rights to the fullest possible degree.
Note
This text is a translation from the French. The French version comes
from the record of the parliamentary debates of the time:
Archives parlementaires de 1787 à 1860,
Première série (1787 à 1789), Tome X, du 12 novembre 1789 au 24 décembre
1789, Paris, Librairie administrative de Paul Dupont, 1878, pages 744
to 746.
1 |
Otherwise, who would have this right? |
2 |
The confusion between the police and the justice system was a major
defect of our laws and the cause of a great deal of abuse. |
3 |
It can be said that in the police the rights of society in respect
of individuals are considered, and in the justice system the rights
of the individual against society are considered. |
4 |
We are not talking here of habeas corpus, an institution
on which it is still possible for us to do better than the English. |
5 |
The grand jury. |
6 |
The trial jury. |
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