THE "EMANCIPATION OF THE RIGHT TO PUNISH."
THElate law of the French Parliament for the punishment of crimes and offences committed abroad, is certainly an audacious attempt to stretch over the whole world the long arm of Imperial justice and police. The Code Napoleon already made punishable in France both Frenchmen and foreigners guilty abroad of crimes against the State or against its credit, and also Frenchmen guilty abroad of crimes against Frenchmen who have not been punished for the same, but in the latter case only on the complaint of the injured party. Without altering the position of foreigners, the new law subjects to punishment in France every Frenchman guilty of any offence against the French law which amounts to a "crime," or, if of inferior heinousness (a "Mit"), is also punishable by law in the country where it has been committed, and for which no final sentence has been passed in such country, dispensing in the former case with the necessity of a complaint. And the Government specifically refused to exempt political offences from the operation of the law. Hence it follows that the whole of the French criminal code is practi- cally extended, as against Frenchmen, to every foreign country. A "crime," under the French law, is determined by the character of the punishment inflicted, and includes, for instance, every act punishable with the two forms of imprison- ment called detention (in a fortress) and reclusion (in a maison de force). Now let Imperial legislation affix such punishment to any act whatsoever, and the unfortunate Frenchman who commits such an act abroad, happening to go into his own country, becomes subject to the whole rigour of the French law. It is true that for " delicts " the law only acts where the offence is punishable in the country where it is committed. But it establishes no proportion of penalties in such case, and it may thus happen that for some trumpery offence punishable in England with 40s. fine or a few days' imprisonment, a man may find himself subjected in France to the most aggravated penalties. Nay, the subtle wording of the new law is such that the identity of the °fence under both legislations seems not even to be required, provided the act be punishable (si le fait eat puns) in the foreign country. For instance :- By Art. 209 of the French Penal Code all resistance with violence, offered to "the officers and agents of the adminis- trative or judicial police, acting for the execution of the laws, orders, or ordinances of the public authorities, is deemed, according to circumstances, the crime or offence of rebellion ;" and, if committed by a single unarmed man, is punishable (under Art. 212) with from six days' to six months' imprison- ment. Now, it is known to a good many persons that a numerous French secret police is maintained by the French Government in London, who of course will be "acting for the execution" of the French laws. Let a Frenchman lift his hand upon one of these men, and the fellow will no doubt take good care to make no complaint as for a "common assault" before an English police magistrate, who would probably dis- miss the offender with a fine • but the first time the latter sets his foot in France, he will be liable to see himself taken up, tried, and sentenced—of course to the maximum term of imprisonment—for having committed in or about Leicester Square an act of " rebellion " under the French law. A handier pretext for stowing out of the way any unwel- come French. visitors than this of offences committed abroad, it will be seen, could scarcely be devised. The man is taken up, bewildered by a charge for which he was in nowise prepared, and which may be purely unfounded or malicious ; he is away probably from all his witnesses ; how can he afford to send for them ? how can he compel their attendance? Evidently such a procedure as this is one of which the main advantage lies with the accuser ; it is one not of trial, but of condemnation. Accord- ingly, it is clear that, outside even of the sphere of politics, every French scoundrel not absolutely excluded from his own country, who can tramp up a charge against a fellow-country- man, will carefully abstain from prosecuting it abroad, but will lie in wait to take him at a disadvantage on his return to France.
A more truly Macchiavellian device for setting every French- man's hand against his neighbour could not have been invented. Even M. Maurice Joly did not foresee it. - But let it also be remembered that in the case of an alleged "crime," no previous complaint by the injured party is henceforth necessary, so that it is in the absolute discretion of the French authorities to arrest any Frenchman of their own motion upon such a charge. What if it be unfounded ? His remedy is to obtain from the Council of State that authorization without which no public functionary can be sued How many Frenchmen per 100,000 can afford to risk such a contest ? How many per million will care to do so?
It is true that for all criminal acts except the crimes speci- fied by the Code Napoleon (attempts against the safety of the State, forgery of the seal of State, coining, and forgery of bank notes) procedure by default, one of the most mischievous features in the French criminal law, is not allowed, the pro- secution only taking place after the return of the accused to France. For these, however, it is retained ; and the scandal may yet be repeated ad infinitum, which the Orsini trial has already exhibited, of the sentencing absent men as guilty of offences against the State,—the new law, moreover, specifically providing that the costs of procedure by default may be thrown upon the accused. Perhaps the most peculiar thing about the new law, however, was the arguments by which it was supported. Its reporter, for instance, M. Nogent St. Laurens, spoke of it as "the rational emancipation of the right of punishment (du droit de punir)." Only fancythe "right of punishment,"—in France, above all,— being in a state of minority or slavery, and requiring "emancipa- tion " by being enabled to lay its hand on the whole life of every Frenchman throughout the world "The law declares," said again the same imaginative gentleman, "that there is no more nationality as respects crimes." To speak of "nationality " in such a matter is no great compliment to that much abused word; but when it is recollected that the very object of the law is to fasten French legal penalties like a Nessus' shirt on every Frenchman, wherever he may be, it becomes diffi- cult to imagine how words could be used which should be more directly contrary to the fact. But M. Nogent St. Laurens' imaginativeness finds a beautiful foil in the massive audacity of the Government Commissary, M. Lenor- mant. When asked why the new law made a complaint by the injured party a necessary condition of procedure in respect of " delicts," and not in respect of "crimes," he replied, with splendid coolness, "The answer is very simple. A crime is not a delict, and a delict is not a crime. . . . Every man who commits a crime knows that he commits it, even without knowing how to read." Now, considering, as has been shown above, that the definition of a French " crime " lies simply in the measure of punishment awarded to it, and that conse- quently it will be a crime to hop on the left foot whenever a certain penalty shall be made applicable to the act, the bold- ness of such a platitude becomes really matchless. Yet in spite of the strenuous opposition of M. Jules Fevre and M. Picard, the very mild and much complimented opposi- tion of M. 011ivier, and that of a few other less known men, the first article of the new law passed by 174 votes against 50; the whole law by 212 against 25. So much the worse for France, and for the re'gime which makes possible, and causes to seem necessary, such an "emancipation of the right to punish."