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of desperate hope of cutting short the conversation.
'Yes,' Margaret said, 'two people's at least; and I was one of them. Judge of my distress, now that I can bear to talk to you of it-to ask you a favour. You ruined my life -for a caprice I believe-and am I likely to forget it? It is all past; the wound is healed, but it is awful in recollection. You had your whim-could you but know at the cost of how much anguish! Have mercy, and do not repeat it.'
'I scarcely understand,' Florence stammered, for her companion's sudden vehemence overpowered her.
'You do not?' said Margaret. ‘Unhappily, I know every step too well to doubt. You brought misery upon us-not least upon the dead man, whose troubles are over; you stole him from me-you intrigued -you deceived-yes,' for Florence gave a start of angry denial, 'I have had the proofs for years-ever since the first you deceived him, cruelly, wickedly, and your deception effected what you wished. Now have I not good right to be afraid when I see you near my sister, and come upon secrets which you will neither confess nor disavow?'"
Florence sat silent for a few instants, stunned as it were by so earnest, vehement, sudden an accusation. It was true, her conscience told her, and her accuser's decisiveness seemed to break down the possibility of equivocation—true that she had done Margaret a lasting wrong, true that she meditated mischief- though with no settled scheme-against her sister. What insight was this, which enabled another to read her past history and present plans? There was a pathos too, a dignity, a courage, in Margaret's appeal, which moved her to admiration in spite of the anger which it at first provoked. Florence's character - unscrupulous, but scarcely malignant-had its tender side, and the sight of suffering so keenly felt, so bravely endured, gave her a pang of remorse. She had been teased into a sort of vindictiveness against Nelly, chiefly by the irritating consciousness that
the alliance between them was too unnatural to produce anything but disaster, and that all services in her behalf had been more than thrown away. More than once during this last visit the thought had forced itself upon her that Margaret, whom she had decided on detesting, was of all her acquaintances the only possible friend. The possibility no longer existed; but high on that dismal list of 'might have beens,' which chronicles an aimless life, was registered in Florence's mind an intimacy full of pleasant companionship, with the one person from whom now, so Fortune willed it, she was most hopelessly cut off; whom, having injured, she was especially pledged to hate, and whom, such are the caprices of the will, she found for the most part but little difficulty in hating. The world was full of vexatious contrarieties, baffled aspirations, opportunities lost, happiness thrown away. Florence-as she sometimes found herself secretly relenting towards her foe, and touched more than she liked to own by some nobleness of act or speechfelt that the dreary philosophy was true indeed for her, and that her strongest, highest tastes were those which she had managed most completely to repudiate.
And now repentance, dreamed of often as a vague idea, seemed to come and offer itself as an immediate possibility, and her heart, with all the weariness of pent-up discontent, began to yearn towards it. There was a sort of strange pleasure in the self-abasement which it must involve. Nothing could be a less pleasurable life than that which she had led of late; no pain worse to bear than the dearth of interests which more and more beset her; no humiliation greater than that which in her own mind's tribunal she was compelled with increasing frequency to undergo. Margaret still waited for her answer. Should it be peace
At last the words came.
'Well,' she said, 'I will tell you what you please. I am sorry to have harmed you. I could be more than sorry if you will let me. You give me strong words, and I believe I
STEPHEN ON CRIMINAL LAW.*
THE want of anything like a literalways been a matter of some reproach to English lawyers. The volumes which occupy the shelves of a legal library in this country belong almost entirely to the class of books which, in Charles Lamb's judgment, would be considered as Biblia abibla, that is to say, books which are not books at all. They are, hardly without exception, mere tools of tradepractical treatises, useful digests, convenient manuals-books to be referred to, but not books to be read. Of such there is no lack; nor should they be spoken of without the respect due to the learning and industry of their authors and compilers; nor without allusion to the gratitude which they have in their generations so justly earned. But of works which have a higher object than that of supplying the pressing wants and assisting the momentary difficulties of the hurried and overtasked practitioner, the number is small indeed. To these Mr. Stephen has made a valuable addition in his view of the Criminal Law of England. He has the advantage of uniting in his own person a thorough practical acquaintance with his subject as a lawyer, with the general training of an accomplished writer; and the treatment of the many important questions passed under review is such as might have been expected from this combination of powers, not often to be met with in similar association.
The objects in view are to discuss the Criminal Law of England as it has been, as it is, and as it ought to be. Like almost everything else of value in our institutions, our Crown law has grown, and has not been the sudden creation of any one mind, or of any one set of minds. It is impossible thoroughly to understand and appreciate what it is without reverting to its origin, and endeavouring to trace it through its successive stages of gradual develop
ment. Great advantage, too, is to be derived from comparing the system pursued in England for the discovery and trial of offences with those prevailing in other countries; and a considerable portion of Mr. Stephen's volume is most usefully devoted to pointing out the resemblances, and marking the differences, which exist between our own methods of procedure and those of our nearest and most important neighbours on the continent.
Beginning from Anglo-Saxon times, we find a well-established method of criminal procedure, but of a rude and inefficient character. The criminal taken in the fact was at once dealt with in a summary way by the local authority, and executed on the spot. But if not convicted upon immediate and indisputable ocular testimony, his fate would depend rather on his previous character or general popularity, than on the evidence (as we should now term it) relating to the particular offence with which he might be charged. Unless more persons could be found to swear to their belief in the guilt of the accused party, than he on his side could produce to swear to their belief in his innocence, he would stand acquitted; or he might make the direct appeal to Providence, by claiming a trial by ordeal. The punishment of guilt, however, could always be escaped by the payment of a fixed pecuniary compensation. So that the proceeding was rather in the nature of a satisfaction for a private injury than in assertion of the rights of public justice. The bishop and sheriff who presided as local authorities in the criminal court had merely to see that the prescribed forms were duly followed. No evidence was produced or weighed. The proper number of compurgators had to be sworn; the ordeal was appealed to; the fine was paid: but there was no trial, in the modern sense of the word; and there could
* A General View of the Criminal Law of England. By James Fitzjames Stephen, B.A., of the Inner Temple, Barrister-at-Law, Recorder of Newark-on-Trent, London and Cambridge: Macmillan and Co. 1863.
have been none of the modern feeling, in any event, of a failure of public justice.
voices.' Now it is: A. B. stands indicted for the wilful murder of C. D.; to this indictment he has pleaded not guilty. Your charge is to say whether he is guilty or not, and hearken to the evidence.' Originally, therefore, the jury were witnesses; and the challenge to an individual juryman was in effect an objection to his competency as a witness; while that to the array,' or whole body of the jury, would be founded on some prevailing local enmity or interest, which would tend to vitiate their impartiality.
With the Norman Conquest came the dawn of a higher and better system. The central authority of the king began to grow; and something was abated from the strong locality and personality of the AngloSaxon system. The Justices in Eyre traversed the country, carrying with them the delegated power of the sovereign; and the whole State was duly represented in the repression of crime. The execution of criminal justice was, indeed, combined with matters of general government. The justices were, as it were, an itinerant Home Office, as well as great magistrates for the administration of the law: and in discharging these duties they must have exercised a powerful influence in civilizing the remoter counties, and in consolidating the authority of the crown. Some faint shadow of the duties of the judges on circuit, as representative of the general executive government of the country, may be found in much more modern times. So late as in the last century the charges of the judges to grand juries were sometimes 1 prompted from Whitehall; and they were expected to speak the mind of the government, and to be its organs during their tours in the provinces, much in the same way as that in which in the present day the leading articles of a newspaper in the government interest might be employed for a similar purpose.
Under the Justices in Eyre a more public spirit in criminal proceedings began to be developed. Accusations were made by a jury from the locality of the alleged offence, who acted on common report. The truth of the charge was then inquired of by the same or another jury, but still without resort to evidence. The jury decided by their own knowledge, or on their general belief in the guilt or innocence of the accused. The form of charge to the jury in a case of murder is given by old Bracton: 'Such a one here present, accused of the death of such a one, denies the death and the whole charge, and puts himself for good or evil on your
Gradually the functions of the jury, as judges of fact established upon the evidence of witnesses, became evolved, and the present state of things was approached. Now, if it was known that a juryman was qualified from his knowledge of the facts of a case to be a witness, he would by mutual desire be excluded from trying it. Such a case probably never occurred in practice; but if it were discovered after he was sworn that a juror could give evidence, he would be sworn as a witness also, and examined and cross-examined like any other witness.
Mr. Stephen well points out that the old system of trial was in truth no more than an application to the particular case of inquiry into crimes of that general mode of inquiry into matters of public interest, by which the greater part of the government was conducted under the Norman kings. This was a system which gave great power, and threw great responsibility upon bodies of private individuals. Some of the best parts of the English Constitution are grounded upon it, and in no instance has it worked better than in securing that independence and freedom in the administration of criminal justice which peculiarly distinguishes this country.
Nothing in general more astonishes foreigners than the extent to which matters of the most important public concern are left in England to be undertaken and managed by private enterprise. The powers and duties, for instance, of our railway, water, and gas companies are enormous. In something of the same spirit the prosecution of offences is essentially
still left in private hands. criminal trials were separated from the mass of general business transacted by the Justices in Eyre, they came to partake more of the nature of private suits. The individual prosecutor took the active place of the public inquest in presenting offences; and the inquest, in the modern shape of the grand jury, only receives and, so to speak, authenticates the information which is laid before it by the exertions of private prosecutors. We have thus so far returned towards the Anglo-Saxon method of procedure, which was essentially litigious, but have combined with it the Norman procedure, which, undertaken on the part of the State, was inquisitorial. Private revenge is checked and controlled by due regard to the public interests; while on the other hand public inertia is stimulated by individual exertion. Nor must it be forgotten that the form of private litigation under which in almost all respects a criminal trial is now conducted in England, with its counsel for the prosecution, and its counsel for the prisoner, is that in effect best adapted for the elucidation of truth, and for the protection of the accused. It may not have been so in those times when counsel were denied to prisoners; but they had then other advantages, under which it is pretty clear that a larger number of guilty persons escaped conviction, than is the case at present. The general result of the changes at work from the thirteenth to the fifteenth centuries, during which the system of trial by grand jury, judge, petty jury, and witnesses, assumed its existing form, is well expressed by Mr. Stephen, that in form it is a public inquiry, but in substance and spirit it is a litigation between the prosecutor and the accused.'
The proceedings of our criminal courts being thus driven to assume the form of a litigation, have been subjected to the same rules of pleading which regulate those in a civil action. A definite offence must be charged, and a definite issue raised between the prosecutor and the accused. In the greater simplicity, however, of the facts and law of
criminal cases, the pleadings on the Crown side never attained that pitch of technical subtlety which has been at once the glory and the disgrace of the system of special pleading in England. Until comparatively recent statutes extended the powers of amendment to criminal trials, all the advantages of technical objection were in favour of a prisoner; but it was indeed almost difficult to make any mistake. Pleas of the Crown were scorned as coarse, and deficient in the finer tactics of the art, by the elder generations of special pleaders; and the verdict of Guilty or Not Guilty depends upon the proof or disproof of certain facts, which, alone or taken together, constitute the commission of an offence. Criminal trials, therefore, have enjoyed all the benefits of the system of pleading, without suffering any of its disadvantages. One grand result, however, of the assimilation of our criminal to our civil proceedings in courts of justice is, that the same rules of evidence have been followed, a practice of which it is impossible to overrate the importance. To this, indeed, may chiefly be attributed the superiority in certainty and despatch of criminal trials in England as compared with continental countries.
These rules are no offspring of a technical legal spirit, but are founded in reason and common sense. As shortly stated, they are
1. The evidence must be confined to the point at issue.
2. The best evidence must be given, or its absence accounted for.
3. Hearsay is inadmissible. And a fourth is added, that no one is obliged to criminate himself, which hardly seems to be properly classed among rules of evidence. Subject to these rules, then, the truth is elicited in our criminal courts by the same means as before our civil tribunals: witnesses are examined, cross-examined, and reexamined; and this mode of dealing with the evidence, if exercised with ordinary skill, rarely fails to obtain all that can be got out of a witness. It seldom even happens that the presiding judge sees occasion to put any additional question to a witness