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never was there, or whether

Finally, he sums up, some grave reflections on the Arabs and that Utopian

blessing, liberty,' with pronouncing happiness to be ideal, and pleasure comparative : 'every race of man, and every rank of • life, have an equal share.' See the wisdom that is acquired by travelling! Who was the Quarterly Reviewer who lauded this volume, and affected to ridicule Dr. Richardson? We blush for the craft.

Art. II. Les Hermites en Prison. Par E. Jouy et A. Jay. Pour

faire suite aux Observations sur les Meurs et les Usages Francais au Commencement du xixme Siècle, par E. Jouy, Membre de

l'Institut. Troisiéme Edition. 2 Tomes. Paris, 1823. M. JOUY is known to the world of letters by his tragedy of

Sylla, and two lighter works, called “ L'Hermite de la “ Chaussee d'Antin," and "L'Hermite en Provence." The two volumes now in our hands, to which M. Jay has made a few slender contributions, are a series of prison reflections, written with extreme good humour, and well enough adapted for that class of the reading community who seek neither for new facts nor new remarks in a new book, but require merely that what has been said over and over again, should be hashed up in an agreeable and palatable way. Before we pronounce any opinion concerning the literary merits of the Hermits in Prison, we must be permitted briefly to advert to the circumstances which led to the incarceration of these two gentlemen.

We entertain serious doubts as to the policy of prosecutions for the political offences called libels. The great problem in these cases, is, how to discriminate between writings which are accompanied with honest intentions, and those which have no other object than that of producing discontent, by vilifying and degrading the Government. And it often happens, that it becomes impossible to class them according to their distinct and proper categories. Compositions, of which the actual tendency is seditious, have often proceeded from the purest and most upright intention. Overheated zeal, an irritable, though virtuous temperament of mind, controversial asperity, and many other impulses equally common, may occasionally carry the author beyond the limits which his own good sense and candour first assigned to him, and bring a piece of writing, conceived in a spirit of benevolence, or dictated by a laudable indignation of oppression, within the scope of penal animadversion. The contrary case may also happen. An astute and cold-blooded libeller, with the worst intentions, may proceed so cautiously and covertly, with so nice an adjustment of words, VOL. XXI. N.S.

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and so profound a dissimulation of language, as to produce an effect still more detrimental, but with perfect immunity from punishment. Another difficulty is, where to fix the lines of demarcation between honest discussion and criminal licentiousness. The aggrieved party in these questions is the Government itself, which has a natural bias to confound the distinction, and to consider even the fairest discussion as licentious. It is no answer to say, that when the Government prosecutes, the defendant is secured by the legal means of defence, and the institutions by which his civil liberty is protected. The influence necessarily attaching to all governments, must render the scale uneven. When a government, for instance, is unusually and artificially strong, --when, from some change of dynasty, or some recent and bitter experience of the evils incident to a former state of affairs, a violent re-action takes place,-when the minds of men are forced out of that sober and dispassionate current of thinking, which flows in peaceful and undisturbed times,--when all who expect advancement, or dread molestation, look to the new order of things, and finding it their in. terest, teach themselves that it is also their duty to support it, and when it is at least ten to one, that those who are to be the judges of the obnoxious writing, participate, more or less, in the same passions, or frame the same calculations ;-in such a combination of circumstances, it is likely that the most innocent discussion, or the calmest historical statement, might be selected for prosecution. It might at the same time happen, that the institutions formed for the protection of the accused party, should be wholly inefficient for the purpose.

In England, the trial by jury is an old machine, not at all the worse for wear, but deriving from daily use a facility of operation not known in countries where its introduction is recent. It is adapted to English ideas, to English habits. It has grown up with all the domestic endearments, the private charities, the public affections which endear us to our soil. It is like the oak of our land, of slow growth, but of deep root. The storm of power has sometimes shaken, but nothing can uproot it. Transplanted into France, it has shewu itself to be a sickly shrub, and certainly not a thriving one under French culture. The jury-list is made out by the prefects, the first accusation proceeds from the gendarmerie or police, and a set of officers belonging to that police; whilst the last refuge of innocence, the jury themselves, give their verdict, not unanimously, but by the majority of opinions. In France too, even when the jury have pronounced a verdict, and that verdict is an acquittal, innocence is by no means presumed. The crown officers, as in M. Jay's case, have the right of appeal to the

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Cour Royale; and, in many instances, as in his, the decision of the jury, though in favour of liberty, in favore libertatis, to use the consecrated phrase of our own law, is annulled, and the accused is sentenced to the penalty denounced by the penal code against him.

With regard to the process against libels in France, there is another machinery of a secret but more dangerous kind, a sort of previous inquisition, not recognised by the law, nor permitted by the constitution, but notoriously influencing the proceedings against the accused author. The previous censorship having been repealed, it was thought expedient to substitute a chamber of ministerial police, to effect the same object. This conclave of examiners sit in judgement upon the daily productions of the press; and in its inmediate consequences, as well as its ultimate tendency, it is a sort of index erpurgatorius, like that which exists in countries that are cursed with the Inquisition. From this dark and mysterious council, issue anonymous reports, in which every work that gives offence, is marked, commented on, and criminated. These persons make a merit

, of pouncing upon a poor author or his work, which probably would never have been read, but for the process which has brought it into notoriety; and they are paid in a ratio to their vigilance and activity. The reports are then sent, under the name and with the seal of the Minister of the Interior, to the law-officer, accompanied with strenuous recommendations to prosecute the offending party to condemnation.

M. Jouy, in conjunction with M. Jay, was the editor of a biographical work which had already reached several volumes. It was called Biographie des Contemporains. In the proceedings against M. Jouy, the first report of this secret conclave contains the following expressions. I have pointed out the seventh · volume of this Biography, as containing several passages

abso• lutely seditious. It has circulated four months with impunity, • having only been informed against last April. You see then, • we are pressed for time, if it is to be laid hold of. Why not . do so at once? Why let it circulate, when it may be sup. pressed? It is a work of falsehood, treason, iniquity, con• ducted by the most disaffected writers of the age. Another report of the same examiner has these remarkable passages. • I have often marked this seditinus Biography, the plan of which • is invariably to outrage loyalty, and to panegyrize rebellion. • It might have been suppressed on the appearance of the first *number in November, 1820. We were discouraged, I think, • by the fear of a scandalous acquittal, (absolution scandaleuse,) • these cases then coming before a sort of procedure always uncertain, often erroneous. At present, this inconvenience does

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• not exist. The law is stronger, and the tribunals are more

independent. Why not take advantage of them (pourquoi 'n'en profiterait-on pas) to restrain these authors ? &c. &c. &c. These reports were addressed to the Procureur du Roi by the chief of the police, who concludes in these words. • You will • no doubt judge it right to order proceedings against the au• thors, who appear to me to be within article 2 of the law of • 25 March last.'. These recommenılations of the chief of the police are backed by those of the Chancellerie, the first commissary of which thus writes to the Procureur du Roi. 'I beg

you to give me an account of your having thought it right to proceed against the authors and printers of this work.' When the proceedings commenced, the law officer informs the chief of the police of it. The latter thus expresses his gratitude for the communication. 'I beg you to accept my thanks. I have • received your communication with much interest: it gives me a new proof of the zealousness of your efforts.'

In spite, however, of the ardour of the police, out of twenty passages marked by the examiner, four only were selected (from a work which had reached its ninth octavo volume) for public prosecution. The chamber of council afterwards reduced them to two. These two articles were parts of biographical notices of Boyer Fonfrède, and the two brothers, Faucher, shot at Bourdeaux, by the sentence of a military tribunal, immediately after the first restoration of Louis XVIII. M. Jay surrendered himself as the author of the article on Fonfréde, M. Jouy as the author of that on the Fauchers. On the 29th of January last, judgement was given, and it was thus : • In what respects the article Fonfrêde, of which Jay admits

himself to be the author : Seeing that, in that article, the con. demnation of Louis XVI. is not approved of, that it is even • blamed, that, if the blame is not expressed in terms suffi

ciently energetic, it amounts neither to crime nor to misdemeanour:

• As to what concerns the article “ The Fauchers," of which • Jouy admits himself to be the author : Seeing that, in that * article, the act of the Fauchers in barricadoing themselves in * their house, and resisting to the last the authorities of the • king's government, in the month of September 1815, is called •" hervic:"? — That, in the said article, it is also said, that * Rome would have raised statues to their honour in the temple • of Castor and Pollux : That, having remarked that the Fau*chers, after their sentence, marched to the place of punish• ment with the same firmness, on the 27th of November 1815,

as they would have done in 1793, the article further adds, « «« But the times were changed; no order to suspend their erecu

tion came :"—That these last expressions, without requiring

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any interpretation, import a comparison between the terror of * 1793 and the government of the king, even to the disadvan

tage of the latter :-That, for this reason, the said article in • the passages above-mentioned, and especially in the last, has

a tendency to excite batred and contempt of the king's go• vernment :

• Jay is acquitted.

* Jouy condemned to a month's imprisonment, and fifty francs, • costs of suit.'

We have given this judicial record at length, to enable our readers to form some opinion of the looseness of French jurisprudence, and their inferiority to ourselves, at least, in the forms of justice,—those forms which a great writer* of their own pronounces to be essential to its administration. But what becomes of M. Jay, who had been acquitted? The judgement is appealed against (a judgement of acquittal !!!) by the Procureur Genéral, and brought before the Cour Royale. M. Jay, formerly a member of the bar, pleaded his own cause; but in vain. The judgement pronounced in his favour by the court below, is reversed, and he is condemned to a month's imprisonment, and 16 francs costs. But in what form is this judgement clothed? Having confirmed the judgement of the court below, in regard to M. Jouy, it thus goes on :- Quant à Jay, • attendu que l'article Boyer-Fonfrède, dont il s'est reconnu • l'auteur, contient des outrages à la morale publique, la cour le condamne à un mois d'emprisonment et 16 fr. d'amende.' M. Jay's pleading is concise and luminous.

• I am here,' he says, ' before you, for an article in which the con. demnation of Louis XVI. is blamed. I confess, I did not expect to be accused of such an offence,-an offence which I believe has never been denounced, but in the code of the republic Let me suppose, gentlemen, that I had been accused of the same crime, before the revolutionary tribunal. Would not the circumstance of blaming the deed of the 21st of January, have been deened a crime, a flagrant act of royalism? How is it then, that I am brought before this court, a cour royale, for the very same thing that would have brought me before a tribunal of the Revolution? It is not one of the least among the extraordinary circumstances of the times. It is, however, capable of being explained. Party spirit, under whatever banners it exbibits itself, may be easily known by its intolerance and spirit of persecution. It arrogates the right of penetrating into our consciences, of reading our hearts; a privilege which belongs to God alone, the only accuser without passion, the only judge inaccessible to error. Do not expect, gentlemen, that I shall enter into an elaborate reason.

Montesquieu.

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