XXIX.11 How to judge the difference between laws

In France, the punish­ment of false wit­nes­ses is capi­tal ; in England it is not. In order to judge which of these two laws is the bet­ter, we have to add : in France, tor­ture is prac­ti­ced against cri­mi­nals, in England it is not ; and fur­ther say : in France the accu­sed does not pro­duce his wit­nes­ses, and it is quite rare for what they call exculpa­tory facts to be allo­wed ; in England wit­nes­ses are heard on both sides. The three French laws form a very tight and cohe­rent sys­tem ; the three English laws not less so. The law of England that is inno­cent of the tor­ture of cri­mi­nals has lit­tle expec­ta­tion of extrac­ting a confes­sion of his crime from the accu­sed ; it the­re­fore calls on all sides for out­side tes­ti­mo­nies, and dares not dis­cou­rage them by the fear of a capi­tal punish­ment. French law, which has one addi­tio­nal resource, is not so fear­ful of inti­mi­da­ting the wit­nes­ses, on the contrary, rea­son requi­res it to inti­mi­date them ; it lis­tens only to the wit­nes­ses on one side,1 those whom the public pro­se­cu­tor pro­du­ces ; and the fate of the accu­sed depends on their tes­ti­mony alone. But in England wit­nes­ses are heard on both sides, and the mat­ter is, in a man­ner of spea­king, dis­cus­sed amongst them ; false tes­ti­mony can thus be less dan­ge­rous there ; the accu­sed has a recourse against false tes­ti­mony, whe­reas the French law offers none. Thus, in order to judge which among these laws are the most in kee­ping with rea­son, we must not com­pare these laws one by one ; they must be taken all toge­ther, and com­pa­red all toge­ther.

By the old French jurisprudence, the witnesses were heard on both sides : thus we see in the Establishments of St. Louis, book I, ch. vii, that the penalty against false witnesses in justice was pecuniary.