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Reflections on criminal procedures in England and in France.


In France, the punishment against false witnesses is capital; in England, it is not. In order to judge which of these two laws is the better one, more details are required: In France putting criminals to the question [torture] is practiced, in England it is not; & furthermore: In France, the accused does not produce his witnesses, & it is very rare to accept what are known as facts in defence; in England, testimonies are heard from both sides. The three French laws form a very tight and respected system; the three British laws form a system that is no less tight or respected. British law, which does not recognise the putting of criminals to the question [torture], has little hope of extracting from the accused a confession of his crime; it calls forth outside testimonies from all sides, & it does not attempt to discourage them with the fear of capital punishment. French law, which has an additional recourse, does not concern itself so much with the intimidation of witnesses; on the contrary, reason requires that they be intimidated: it only hears from witnesses for the one side;


these are those brought forth by the presiding court; & the destiny of the accused depends on their sole testimony. But in England witnesses are heard from both sides: & the issue is, so to speak, discussed between them; false testimony can therefore be less dangerous; the accused has recourse against false testimony, whereas French law provides none. As such, in order to judge which of these two laws most conforms to reason, each individual law cannot be compared to the other; they must all be taken as a whole, & compared as a whole.

Source: Secondat Baron de La Brède et de Montesqieu, Charles-Louis de, "Reflections on criminal procedures in England and in France, in De l'esprit des loix " (Amsterdam et Leipsick: Nouvelle édition, revue, corrigée et considérablement augmentée par l’auteur [...], Chez Arkstée et Merkus, n.d.), T. 3, L. 29 p. 308-9.

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