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from the bench after the counsel on each side have concluded with him. Their manipulation is generally exhaustive; and the attempt to get more out of a witness may perhaps go to prove the imperfection of all human testimony, but will not frequently tend to throw greater light upon the facts of the particular
The genius of English law has also been very observable in the way in which the rules of evidence have been established, in all their various applications. They rest almost entirely upon judicial interpretations and decisions, and the present condition of this most important branch of law may be cited as a remarkable instance of the spontaneous and practical growth to meet constantly recurring exigencies, which is so distinctive a character of all departments of English jurisprudence.
Mr. Stephen is excellent and original in his mode of describing the character and the steps of English criminal procedure, and in his comparison of it with what takes place in France. The stages of the business may be considered as consisting, first, of the detection and apprehension of offenders; secondly, of the getting up of the case for trial, called in France the instruction; thirdly, the trial; and lastly, the execution of the sentence.
Process against a criminal, taking as it does the form of a private suit, there is in England no special provision for the detection or apprehension of offenders. Any one may constitute himself prosecutor in the name of the sovereign; and although policemen have protection peculiar to themselves, yet their legal authority in previous investigations and at the time of an arrest is little greater than that of any other of her Majesty's subjects. There is no public prosecutor, and a criminal case is prepared by an attorney, selected and retained for the purpose, as if in a civil action. The public, it is true, pay a certain allowance towards the costs of a prosecution; but it is insufficient to afford anything like a fair professional remuneration, and in ordinary
cases no great attention can be expected to be given to a class of business which brings with it neither profit nor reputation. The brief to counsel is little more than a copy of the depositions of the witnesses taken before the committing magistrate, which, indeed, is all that can be generally required. In great cases, such as murders, gold-dust robberies, bank-note forgeries, or cases taken up by Government, it is of course different.
On the other side, the prisoner's defence is conducted in the same way. His case is got up, his attorney employed, and his counsel instructed, precisely as in a civil suit. He can compel the attendance of witnesses in his favour; and, in case of poverty and inability to pay for professional assistance, would have his defence conducted by some barrister volunteering, or requested to act by the presiding judge.
Mr. Stephen justly dwells on the material difference between English and continental practice in the treatment of accused persons during their imprisonment before trial. The only object of the incarceration -or of the bail taken, in cases where it is admissible-is to secure the appearance of the accused to take his trial; and the proceedings before the committing magistrate give him the fullest information of the nature of the offence with which he is charged, as well as of the evidence by which it will be attempted to prove it against him; and this is a privilege, as is remarked by Mr. Stephen, which puts a prisoner on a criminal charge really in a better position than the defendant was in an action for a money demand, under what was the law of England within the last thirty years. For until arrest for debt was abolished (except on final process), it was a usual mode of commencing an action; and a man was liable to be thrown into prison on the bare oath of a malicious or perjured creditor. In fact in England, from the time a man is in legal custody on a criminal charge, a kind of sanctity almost is made to attach to him. When he is informed before the magistrate of the nature and evi
dence of the charge against him, he must be distinctly cautioned that he is not obliged to say anything, whereas a defendant in an action may now have to submit to interrogation on oath. There is then the further protection that the grand jury must be satisfied that a prisoner should be put on his trial-this being, in fact, the only relic of the ancient inquisitorial system. We do not quite agree with Mr. Stephen in thinking that this is a mere form which should be abolished, except for the advantages to be derived from associating the leading gentry of our counties in the administration of justice. Occasions might arise in which grand juries might still be found useful, and the institution ought not to be lightly abandoned.
At the trial all previous proceedings are as if they had not been. The evidence is given to the jury, who have to return the verdict as if it had never been given before. It has been originally collected (in an important case) by the attorney-it has been taken down formally in the depositions by the committing magistrate-it has been partially rehearsed in the grand jury room. But the event of the trial is determined solely by what comes out at the trial; and when once the trial has begun, no adjournment is in general allowable for the purpose of obtaining further evidence to strengthen the case for the prosecution. In France,' on the contrary, as Mr. Stephen shows, 'what we should call the trial is only the last stage in an elaborate process, every part of which relates to, and is recognized in, every other part. It is said by Bentham that there is no equivalent for the English word trial, applied to the final hearing of the cause, to the conclusion of all that has gone before.'
In England, if the prisoner pleads guilty, there is nothing to try, and it only remains to pass sentence. There is no question raised or issue joined upon which the verdict of the jury could be delivered; but in France the trial would proceed nevertheless: the witnesses would be examined, speeches made, and the verdict found. It is an affair of the
State which cannot be stopped, because the accused party wishes to admit his guilt, without a public inquiry.
The functions of the counsel for the prosecution in England, also, are what would be considered on the continent as altogether anomalous. He may elect upon which of several charges he will proceed. The discretion of admitting a prisoner as King's evidence or offering no evidence on a particular charge rests in fact with him:
In these and other important particulars, he is practically dominus litis; and he is so in a much more personal sense than can ever be the case in a civil action. In a civil action, he would be bound to consider himself the representative of his client, bound by his instructions; but, in a criminal prosecution, no man of honour can ever consent to become the instrument of private vengeance. He is performing a part which has been found, on the whole, a convenient, though it may appear a paradoxical, way of administering justice. But he is bound to keep in view the end as well as the means. Hence he ought to act as an advocate indeed, but as an advocate who has many of the duties and responsibilities of a judge, and who contends not for the success of his cause at all events, but for the full recognition by the judge and jury of that side of the truth which makes in favour of it. It is his duty to see that the case against the prisoner is brought out in all its strength; but it is not his duty to conceal or in any way diminish the importance of its weak points. His function is not to inquire into the truth, but to put forward, with all possible candour and temperance, that part of it which is unfavourable to the prisoner.
Mr. Stephen is felicitous in pointing out the preservation of the distinction of examining in chief and crossexamining on criminal trials as a characteristic evidence of the litigious form of our criminal law proceedings; for it is based on the assumption that the witness must be naturally inclined to favour the side by which he is called, and that his statements must be tested therefore by an adverse cross-examination. He remarks, also, that no provision is made by English law for the calling of witnesses by a judge interested only in the manifestation of truth; but, as we have already observed, we doubt whether the
truth is really so completely and successfully eliminated by questions framed by the judicial mind, and put from the bench, as by the conflict of the advocates' skill and intellects, as exercised in the usual process of dealing with witnesses by the bar.
The objects and form of the summing up by the judge, again, are not to be distinguished from the same on the civil side. His position, as Mr. Stephen correctly describes it, is that of a moderator between two litigants. Ever since the counsel for the prisoner have been allowed to address the jury as well as to cross-examine the witnesses (a comparatively recent piece of sense and humanity), and in the habitual exercise of that right, the old notion of the judge being counsel for the prisoner, if it ever indeed had much meaning, has been exploded.
There is an effective appeal for irregularity in proceeding, or upon matter of law, but none from the finding of the jury on the facts of the case.
In France everything is taken in hand by public officials from the commencement of a criminal inquiry: private individuals are expressly excluded from taking any share in it. The functionaries of the State collect the evidence, and from time to time question the accused, and confront him with the witnesses or inanimate proofs. He may be placed in solitary confinement, and isolated from his friends, so as to prevent him from making any systematic defence. He is not informed of the evidence as it accumulates against him, but is nevertheless constantly interrogated upon the suggestions afforded by it. Finally, a theory is elaborated on the subject of the suspected crime, and the results of the instruction are made to form the acte d'accusation, into which the facts, and inferences to be drawn from them, and sometimes even the probable line of defence, are all introduced:
There is a close connexion between the officers who instruct' the process and the Cour Imperiale which finally tries the case. A committee of that body, consisting of
three judges, form a sort of grand jury, called the Chambre des Mises en accusation. After hearing the Procureur-Général, they determine whether or not there is ground enough to put the accused person on his trial; and they may, if they please, cause additional evidence to be collected, on the same terms as the inferior magistrates. The Cours Imperiales have also the right of instituting proceedings in the first instance. When the question of the mise en accusation is under consideration, the accused, or the partie civile (ie., any one who seeks to recover damages for injuries done him by the crime), may lay mémoires before the judges, who must hear them read before they decide.
If, to use our own phrase, the Chamber finds a true bill, the affair is sent before the Cour d'Assises of the department, a circuit court, in which one of the judges of the Cour Imperiale sits as president; or, if the department be that in which the Cour Impériale itself is situated, the case is tried before a committee of that body, sitting as a Cour d'Assises. After the opening of the Assises, the prisoner is interrogated in private by the president. The witnesses are cited by the Procureur-Général, or the prisoner, and the president has a discretionary power of calling in any additional witnesses whom he thinks it desirable to hear.
The trial begins by the reading of the acte d'accusation; the Procureur-Général then generally opens the case against the prisoner, speaking with far more warmth, and expressing a much more decided opinion, than would be thought becoming in this country. The president then interrogates the accused, after shortly stating the facts to him, and the witnesses are then heard, the Procureur-Général deciding on the order in which they are to be called. There are no rules of evidence; and in the first instance, the witnesses tell their own story in their own words, and without any interruption whatever, the effect of which often is, that they make long speeches not very material to the question.
After the depositions are completed, the and after his president cross-examines ; cross-examination is over, the counsel for the prisoner may put any further questions if he pleases; but he can do so only through the president. This privilege is hardly ever exercised, and this in itself forms a broad distinction between a French and an English trial; for, in the latter, the crossexamination of witnesses is one of the most important and most characteristic parts of the proceedings.
After the examination of the witnesses, the advocate for the partie civile, the Procureur-Général, and finally the advocate for the prisoner, address the jury; lastly,
the president sums up. But this part of the proceedings has less importance in France than with us, and the résumé is as often as not confined almost entirely to a recapitulation of the arguments of the counsel.
In such a course of procedure the public officials undertake the whole, and are responsible for the whole. The defence of the prisoners is as much under their control as the case for the prosecution; and the earlier and later stages of the inquiry are so connected together, that the trial itself is only a continuation in public of the previous investigations. The conclusions of the police who commenced the affair would have as much influence in deciding the fate of the culprit as the evidence of the witnesses produced in open court. To complete the comparison of the English and French methods of procedure, and understand what the fortune of an accused person is in France,
We must suppose the attorney for the prosecution, the committing magistrate, and the counsel for the Crown, to stand to each other in the relation of official superiors and inferiors, and we must further suppose the counsel for the Crown to be an assessor to the judge of assize. To complete the system, we must substitute for the fifteen judges a much more numerous body, scattered over the country in threes and fours, each group having under their official authority all the committing magistrates, and all the prosecuting counsel and attorneys within a wide district, and discharging themselves the functions of grand jurymen. We must also suppose the procedure to be secret until the day of trial, and the accused to be liable to close confinement, varied only by as many interrogatories and private confrontations with witnesses as the judge 'instructing the process' might think advisable.
All these persons are officially connected, and naturally inclined to support each other's conclusions; whereas in England the evidence is collected by a private professional man, and the prisoner is committed by a magistrate, who has not previously interfered with the case, and will have nothing more to do with it. The grand jury, again (so far as they can be considered as exercising any influence in the affair), are a
perfectly independent body, unconnected with the government of the country. The judge and jury who try the case are previously strangers to it, and have been in no antecedent communication with any other officials.
In contrasting the merits of the two systems, Mr. Stephen concludes that the inquisitorial principle is the true one, but that the litigious system probably furnishes the best means of inquiry. The discovery of the truth ought to be, and is, the object of both systems; but in France the occasion of a criminal trial is made the occasion, so to speak, of overhauling a great many collateral matters, and doing a stroke of police business in addition to procuring the conviction of the particular offence. In this it resembles an English court-martial, before which the whole state of discipline in a ship or a regiment is virtually made the subject of inquiry, and every officer examined as a witness is to some extent on his trial, as well as the person upon whom the court is held.
The good working of the English system very much depends on the tacit adoption of certain professional rules of advocacy, which are well and briefly pointed out. The counsel for the prosecution must not suppress any fact within his knowledge which would tell in favour of the prisoner; but the counsel for the prisoner is bound to do his best to get him off. He ought, however, to have no personal knowledge of the guilt of his client. It happened in the well-known case of Courvoisier, some years ago, that a late celebrated advocate attempted, in his speech for the defence, to throw the guilt of a murder upon other persons, and pledged his own belief in the innocence of the prisoner, after having heard a full confession from him. Public opinion at the time was strongly and justly expressed against such a line of defence under the circumstances. Yet it is allowable for the prisoner's counsel to use any argument, however fallacious, which he thinks likely to weigh with the jury; whereas the case of the prosecution
should be stated with almost judicial fairness.
Mr. Stephen condemns the French system of public prosecution, as altogether unsuited to the genius of English institutions:
Unless our whole system of criminal procedure were radically changed, it would be impossible to appoint in this country public prosecutors, whose duties would bear the least resemblance to those of a French Procureur-General and his subordinates. The whole of our system proceeds upon the supposition that the prosecutor is to prove his case, and the prisoner to arrange his defence in his own way. The French system is an elaborate inquiry conducted by an organized staff of magistrates, with no regard to the convenience of the public, or to the wishes of the person injured, or the person accused.
The practical results of such a system are sufficiently displayed in the histories of the French trials appended to this volume. When a crime is committed, numbers of innocent persons are called upon to prove their innocence by giving an account of their employment of their time. The police investigate the whole life of persons suspected, prying into transactions of the most secret kind which occurred perhaps years before. Upon the opinion of the magistrates conducting the investigation, men are punished by many months of solitary confinement before they are convicted of any crime whatever, and on the mere chance that they may turn out to be guilty. In a word, the system regards the comfort, the privacy, even the personal liberty of any number of innocent persons, as unimportant in comparison with the possibility of detecting a crime. Such a system would never be endured in this country, and, if established, would cover the whole administration of justice with odium.
On the other hand, there are many inconveniences arising from the want in England of a well-organized system for the detection of crime, from the imperfect way in which the business is undertaken, and from the fact that a large portion of the expense of prosecution falls upon the person who has set in motion the machinery of justice. The remedy usually proposed has been the appointment of officers specially charged to institute inquiries into crimes, together with standing counsel to advise on and conduct prosecutions.
To this may be objected the great expense to the public, and the large amount of patronage to be created. It would be easy, however, to add to the number of detective police, and to increase the remuneration now awarded to attorneys for prosecutions, although these measures would of course increase the public burden of expenditure. Mr. Stephen afterwards proposes the erection of a sort of department of justice, which, in addition to its other duties, might have a general superintendence of prosecutions, and exercise a central control over the local magistrates. For the full elucidation of truth, and to secure a complete administration of justice, there should also be a provision for the defence of prisoners:—
The general theory of the law would, no doubt, require that such assistance should be given, and that liberally, but the subject is beset by practical difficulties. As a matter of fact, prisoners are generally guilty; and, if they are not, they are generally people of bad character. The public conviction that this is so would, in practice, present great obstacles to any scheme for enabling them to defend themselves at the public expense. Natural as this feeling may be, it is not to be encouraged, and its existence is matter of regret. It is one instance of a miserable set of irrational compromises, which, under pretence of being practical expedients, produce almost all the practical hardships and defects with which the law can be justly reproached. Abuses are constantly defended, more or less consciously, on the ground that the hardships imposed on the innocent may, as it were, be set off against the chances of escape held out to the guilty. For instance, in the early State Trials, the prisoners frequently complained of having no copy of the indictment, to which the answer was, that such trifling flaws were fatal, that to give copies of the indictment would defeat justice. So one of the commonest arguments against allowing prisoners to be defended by counsel always was, that rogues had too many chances of escape already. The same objection is frequently made to the permission to appeal in criminal cases. The answer to all such arguments is, that every step towards the discovery of truth is a gain to the innocent and a loss to the guilty, and that the only ground for preferring one system of criminal procedure to another is that it is better fitted to bring the truth to light. If our own system does not attain that object, it ought to be made