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to do so; but it is a monstrous confusion to describe the practice of setting off conflicting absurdities against each other as a triumph of practical good sense.
The practice of interrogating the prisoner forms a remarkable feature in French criminal procedure; and the horror with which it is now regarded in England is a very peculiar point in our own system. Mr. Stephen says that the omission to question prisoners owes its origin to nothing but recent practice. It is quite true that before the Revolution it was usual to interrogate prisoners, and in times a little earlier still, resort was had to torture in political cases-both, as we conceive, in defiance of the spirit of English criminal law, which, as Mr. Stephen elsewhere very justly shows, affords a higher degree of protection to the accused party in a criminal suit than it does to the defendant in a civil action. But whether or not in harmony with other parts of the system, the practice certainly prevailed. Accused persons were questioned on their first apprehension by the committing magistrates; and at their trials prisoners were called upon to explain and account for the appearances against them. During the last century the practice fell into disuse, probably because during that period the theory that a criminal trial was substantially a private litigation came to be more fully recognized, and because the reduction of the rules of evidence to a systematic form was at the same time in progress. Blackstone, we find, cites Lambard as his authority for the statement that the first warrant given for the examination of a felon in the English law, was by the statute of 2 & 3 Philip and Mary; and it was no doubt the principle at common law that no one was bound to criminate himself. Yet the practice of examining a prisoner, undefended by counsel, and without the means of calling sworn evidence in his favour, must have been an advantage to him, if fairly conducted, as it would give him the means of dealing bit by bit with the evidence against him; and an unlettered man could better answer questions than comment on the evidence,
or frame a speech in his own defence.
For, all this time, and up to 1830 (except in cases of high treason), prisoners were without counsel; that is to say, they might be assisted in the examination or cross-examination of witnesses, but the prisoner's counsel could not speak for his client; and many defences were excluded which could be put forward by an advocate, but not by the accused party in person; nor was it until the reign of Queen Anne that prisoners had the advantage of having their witnesses examined on oath. Mr. Stephen says:
When the prisoner had to speak for himself, he was practically excluded from the topics which advocates often handle successfully. He could not, without a tacit admission of guilt, insist on the inconclusiveness of the evidence against him, and on its consistency with his innocence. The jury expected from him a clear explanation of the case against him; and if he could not give it, they convicted him. The famous case of Eugene Aram illustrates this. The speech which he made was an ingenious and extremely elegant essay on the inconclusiveness of the evidence against him; but it seems studiously to avoid any emphatic assertion of innocence, or any such explanation of the suspicious circumstances, as an innocent man might have given. It gave the judge who tried him an opportunity of observing that it was not the plain statement of an innocent man, but the artful composition of a guilty one; and this was probably the cause of his conviction, as it is, to this day, evidence of his guilt. In like manner, the absence of any explanation by Donellan of the suspicious parts of his conduct must have weighed most heavily against him.
It is obvious that this indirect way of questioning a prisoner was far less favourable to an innocent man than the method adopted by the judges before the Revolution of directing his attention to each separate article of evidence against him. Both Throckmorton and Count Coningsmark asked as a favour to be allowed to answer each part of the evidence separately-that is, to be questioned on each branch of it as an indulgence to their weak memories; and this, no doubt, is the form into which a trial naturally slides in the absence of a fixed order of procedure.
On the whole, Mr. Stephen inclines to return to a modification of the practice of interrogating pri
soners. It would be no disadvantage to the innocent; it would effectually stop sham defences, and the sophistical lines of defence which can be adopted by counsel. It could not, therefore, be reconciled with the principle of giving a prisoner the full benefit of a professional defence-for the control of the counsel for the prisoner over the interests of his client would obviously be greatly limited if the prisoner were bound to answer questions which it would be clearly the duty of his advocate acting on his behalf to advise him not to
It may be admitted that the severity of the law, but in a good sense, would be increased. Before the magistrates on committal, the duty of interrogation might fairly be left to them. It is suggested that the prisoner might be interrogated at the close of the case for the prosecution, by the counsel for the Crown asking leading questions if desired-commencing in fact with a cross-examination, and then re-examined by his own counsel-with liberty to the judge and jury to put any further questions. If done at all, this would be the least objectionable way of doing it. But would it ever lead to much practical result? Would not prisoners generally preserve silence, and leave their defence in the hands of their counsel, and would it be fair to draw any inference against them from their silence? To treat the prisoner as a party to the suit, who may be called as a witness (as can now be done in civil cases), seems to be open to the gravest objections-a sufficient one being that it would be impossible to believe one word proceeding from him under these conditions.
In pursuing the comparison between the French and English systems, it is to be borne in mind that in France the jury is in truth merely a formal and almost immaterial addition to the rest of the machinery provided for the trial of offenders. Their verdict is little else but an affirmation of the conclusions at which the permanent officials have already arrived. In
England, on the contrary, the jury are really and truly the sole and only judges to decide on the facts of the case; and their opinion is formed on the evidence given in their presence. Whether the opinion of the jury should, in cases depending on scientific evidence, be more controlled than at present by the evidence of experts, is a question which has engaged much attention. Cases of poisoning and alleged insanity are those in which scientific testimony is most frequently introduced; but in these and in others, it may be safely concluded that men of ordinary intelligence are in the end the best judges of the result of scientific evidence. They are free from the operation of preconceived theories on their opinions, and they are exempt from the odium scientificum, which may sometimes drive scientific witnesses into maintaining a particular view, in opposition to that of another expert in the same department of science. There is certainly no reason why jurors should not be able to arrive at a confident conclusion on scientific evidence produced before them from the witness-box, and without the additional authority that might attach to it if it came from a subsidiary or secondary jury of experts. Mr. Stephen gives a good illustration of the way in which we judge of scientific evidence in ordinary life:
A man observes a small swelling on his thigh; he goes to a surgeon, who says, This is an aneurism, and if you do not allow me to cut down upon the artery, and tie it, you may fall down dead at any moment.' He shows it to another, who says, 'It is no aneurism at all, but a mere tumour, on which I will operate; if I do not, you will be exposed to some dreadful consequence; but if I am wrong, and it is. an aneurism, as soon as I make the first cut you are a dead man.' Here a man is judge of life and death in his own case; nor can he escape the necessity of deciding.
We trust never to see the knowledge of scientific witnesses imported to influence the result of criminal or civil trials, except in the present form of evidence from the witnessbox; and it is not likely that it ever will be so in this country.
The great question, however,
arising on juries is, whether the absolute unanimity at present required should be maintained? Twelve men have upon their oaths to give a verdict according to the evidence. Eleven may be agreed, yet the caprice, or obstinacy, or private interest, or favour of a solitary dissentient, will prevent a verdict from being returned. The verdict of Guilty, but recommended to mercy,' may generally be taken as indicating a compromise, and is sometimes given when no single circumstance of extenuation can be discovered, supposing it to have been proved that the right man has been tried and convicted.
Mr. Stephen, however, explains and defends the object in requiring unanimity in that sound practical 'spirit which animates and gives value to the whole of his work. English law does not require any particular number of witnesses to justify a conviction. It knows nothing of plena or semiplena probatis; but it does insist that no one shall be considered guilty, unless a certain number of average persons concur in thinking him so. And this may fairly be claimed as the gist of the institution. If the verdict of a majority sufficed, there would often be no discussion among the jurors, and the first impressions of the most quick-minded and impatient of the jurors would prevail over the sounder conclusions that might be reached in time by intellects of slower apprehension but of surer grasp.
In 1859 the late Lord Campbell introduced a bill to allow nine jurors to return a verdict, after six hours' deliberation, in civil cases. It needs no laboured proof to show that the concurrent opinion of twelve is in a very high degree more probable to be right than that of nine; and if it was thought unnecessary to secure this advantage it would be better to reduce the number of the jury. But to take a divided verdict certainly changes not only the degree but the nature of the security; and no advocate of change would be content to take the verdict of a bare majority; which is indeed the strongest fact in favour of abiding by the present system.
VOL. LXIX. NO. CCCCIX.
Bentham has described this as a system of perjury enforced by torture a remark of which Mr. Stephen well disposes:
That part of Bentham's phrase which condemns the means used to produce unanimity, which it describes as torture,' requires more attention than the part which condemns unanimity itself as perjury. The employment of the word torture' is a curious instance of the use of a dyslogistic epithet by a man whose life was passed in protesting against the employment of dyslogistic or eulogistic language on any occasion. If torture means only the infliction of bodily inconvenience in any shape whatever, it may no doubt be applied properly enough to the plan of depriving the jury of fire and food till they agree on their verdict; but it might also be applied to the restraint of being obliged to sit for hours in a hot court on a hard board, listening to tiresome speeches and dull evidence. The word torture' proves nothing. The process to which it is applied does not deserve to be viewed so seriously. It is quaint and antiquated rather than cruel. To put a dozen farmers into a bare room, and say,
You shall not have your dinners till you have made up your minds,' is a rough and half-humorous way of mentally jogging them. It assumes the possibility of a kind of sluggish obstinacy, which requires some slight external stimulus to overpower it; and to view the thing tragically is to misunderstand it. It must, however, be confessed, that the expedient is coarse and rough, and that it belongs to an age of less considerate and polished manners than our own. The mere confinement is quite compulsion enough, and the power of ordering reasonable accommodations in the shape of either food or fire might well be entrusted to the judge. The difficulty has been practically solved by the power which the judges have assumed of discharging a jury if they are unable to agree after a reasonable time, and if they declare that there is no chance of their agreeing. In such cases the prisoner can be tried again; and this is obviously the course of proceeding most consistent with the general character of the institution.
We find it impossible to enter upon that portion of Mr. Stephen's work which is devoted to the important subject of evidence, so as to do any justice to the way in which he has dealt with it. It is, however, one of the most valuable parts of the work; and it has the great merit of presenting the matter in a form divested of all techni
calities, and in a more interesting and digestible shape than it has ever previously been made to assume.
The notion of adding to the volume the reports of a few of the most striking criminal trials in England and France is a good one. Nothing is more fascinating than a criminal trial; the greatest excitements of the theatre or of debate must yield in interest to the scenes of real life, and the exhibitions of human passions and motives which can only be witnessed in a criminal court. Next to being actually present is the reading the account of what has taken place; and the cases selected by Mr. Stephen are of a kind peculiarly adapted to enforce and illustrate the principles and practice of the respective countries to which they belong. The English cases of Palmer, Dove, and Smethurst are of recent interest, and serve among other things to exemplify the application of the most refined chemical and medical science to the detection and proof of crime. The well-known case of Donellan is an earlier instance of the same class of cases, at a time when the lessadvanced state of medical jurisprudence did not afford the same absolute certainty which may now be claimed for it in its most able application. The French cases are equally well selected for their purpose, and
will be new to the great majority of English readers.
In conclusion, Mr. Stephen may be thoroughly congratulated upon the success which he has achieved in his attempt to make the general principles of criminal law intelligible to all classes, and to indicate the various points in which it is still capable of improvement. No such work existed before, and such a work was much wanted. It is not without its value to the professional lawyer-whether student or in the riper stages of legal life. But we think it will be especially useful to the country gentleman who may be taking his seat on the magisterial bench without the advantage of any previous regular legal education; and no less so to that large and important class of public officials, who are called upon to administer justice in our Indian dependencies. In this volume they will find a clue to guide them through the apparent difficulties of English criminal procedure; and above all may derive from it a knowledge of the principles of evidence, the want of which we believe to be the most fatal deficiency in any persons called upon to take an active part in exercising the functions of criminal judges, with little or no legal training and experience.
CRITICISM AND THE GOSPEL HISTORY.
spirit of religion. The spirit of criticism is a questioning spirit; the spirit of religion is a spirit of faith, of humility and submission. Other qualities may go to the formation of a religious character in the highest and noblest sense of the word; but the virtues which religious teachers most generally approve, which make up the ideal of a Catholic saint, which the Catholic and all other churches endeavour most to cultivate in their children, are those of passive and loyal obedience, a devotion without reserve or qualification; or to use the technical word, 'a spirit of teachableness.' A religious education is most successful when it has formed a mind to which difficulties are welcome as an opportunity for the triumph of faithwhich regards doubts as temptations to be resisted like the suggestions of sensuality, and which alike in action or opinion follows the path prescribed to it with affectionate and unhesitating confidence.
To men or women of the tender and sensitive piety which is produced by such a training, an inquiry into the grounds of its faith appears shocking and profane. To demand an explanation of ambiguities or mysteries of which they have been accustomed to think only upon their knees, is as it were to challenge the Almighty to explain His ways to His creatures, and to refuse obedience unless human presumption has been first gratified.
Undoubtedly, not in religion only but in any branch of human knowledge, teachableness is the condition of progress. We augur ill for the future of the youth who sets his own judgment against that of his instructors, and refuses to believe what cannot be at once made plain to him. Yet again the wise instructor will not lightly discourage questions which are prompted not by presumption but by an intelligent desire of knowledge. That an uninquiring submission produces characters of great and varied beauty; that it has inspired the most splen
did acts of endurance which have given a lustre to humanity, no one will venture to question. A genial faith is one of that group of qualities which commend themselves most to the young, the generous, and the enthusiastic-to those whose native and original nobleness has suffered least from contact with the world-which belong rather to the imagination than the reason, and stand related to truth through the emotions rather than through the sober calculations of probability. It is akin to loyalty, to enthusiasm, to hero-worship, to that deep affection to a person or a cause which can see no fault in what it loves.
Belief,' says Mr. Sewell, 'is a virtue; doubt is a sin.' Iago is nothing if not critical; and the sceptical spirit-der Geist der stets verneint-which is satisfied with nothing, which sees in everything good the seed of evil, and the weak spot in every great cause or nature, has been made the special characteristic--we all feel with justice-of the devil.
And yet this devotedness or devotion, this reverence for authority, is but one element of excellence. To reverence is good; but on the one condition that the object of it be a thing which deserves reverence; and the necessary complement, the security that we are not bestowing our best affections where they should not be given, must be looked for in some quality which if less attractive is no less essential for our true welfare. To prove all things-to try the spirits whether they be of God -is a duty laid upon us by the highest authority; and what is called progress in human things— religious as well as material has been due uniformly to a dissatisiaction with them as they are. Every advance in science, every improvement in the command of the mechanical forces of nature, every step in political or social freedom, has risen in the first instance from an act of scepticism, from an uncertainty whether the formulas, or the opinions, or the government, or the received