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A little book which can be had for twenty-five cents contains the whole criminal law of Germany. It is expressed, and, when necessary, definitions are made in plain, intelligible language, and conveniently arranged. The proceedings, even in newspaper reports, refer to the chapter and paragraph under which they are instituted. It is not to be supposed that the technical phrases convey the same meaning to all minds, or make the peasant comprehend the laws under which he lives as well as a judge. But it is a great deal nearer to it than where the law has to be hunted out of the whole statute-book and a thousand volumes of reports. The general intelligibility and expedition of the proceedings, where reference is made to the state of the law, are in strong contrast to the frequent cumbrousness of our own, and let a stronger light into these sacred mysteries.
Offences are submitted, according to magnitude, to, 1st, the police, — public not admitted ; 2d, to a court, without jury, of seven members, three of whom are lawyers, with permanent appointments, and four laymen, who serve for one year, and are appointed by the presiding judge of the court above; 3d, to a court of three members, sitting with a jury. Cases of much importance come before this court. In the country small offences are brought before a single judge.
Provision is made for appeals in law questions to the highest court of cassation, but not for trial by jury in all cases. The right is freely exercised, as it ought to be in cases of scandalous or immoral character, of excluding the general public. The prosecution is represented rather than conducted by a state'sattorney, 'usually in the course of promotion to a judgeship. Counsel is allowed the defendant, and is even assigned and paid for; but, as the defendant is confined in the dock, there is little opportunity for conference during the trial.
Witnesses are sworn with great formality; the oath being recited by the judge, and repeated clause by clause by each witness. The prosecutions for perjury are, notwithstanding, out of all proportion more numerous than with us; proceeding, however, it is fair to say, mostly from money questions in civil
Witnesses are kept apart until called in to give evidence. The testimony is taken down and read out by the clerk, and these notes are officially part of the case.
The jury of twelve are drawn out of a summoned panel of
thirty-six, of whom twenty-four must be present. The jury list is the whole body of tax-paying citizens, less the somewhat numerous but legally determined exceptions, and is prepared by the district judge with the help of municipal officials and also exhibited for public examination.
The trial jury is made up out of the panel, and the government and defendant have an equal right of challenge out of the surplus over twelve ; for instance, if thirty answer to their names, each would have nine challenges. A juror may be rejected for cause, - relationship or manifest interest; but there is no examination into opinions nor provision for further summons after the panel is exhausted. In long trials it is the practice to seat, say, two by-jurors, who assist in making up the verdict, in case any of the twelve become unable to do so. The juries are respectable and trustworthy in appearance, evidently drawn from the upper and middle classes. The name, rank, residence and business of each are carefully read out. In general, their duties are well and carefully performed, with perhaps a leaning towards mercy.
The court being thus constituted, the accusation piece is read. This must include a statement of the offence in the language of the statute ; but it is a very different thing from an indictment, and represents at the outset a different idea of criminal procedure. The prosecution is an act of authority and of responsible official duty; it is therefore made by law to depend upon an examination of the whole case upon both sides. It presents the government theory of the case in ordinary language and including any facts in the life of the accused which may be thought to explain his acts. Besides the statement of the matter to be tried, it includes many others and is thus the occasion of a still wider deviation, in the next step, from that common-law practice which is the symbol at least of principles which centuries have instilled into the blood and brain of English-speaking people, so as to constitute their idea of the only social and political relations which they recognize as just: the defendant does not plead. The plea is no doubt, in nine cases out of ten, a favor of which the prisoner at the bar does not know the meaning, or derive any great satisfaction from; and yet its absence seems to call up at once the conception of a different government and society.
Not even the apparent consent or adherence of the accused is asked to the proceedings of which he is the object; a pleasing
antiquated fiction that he puts himself upon the country," which country you are,” embraces him. From the moment he stands charged with crime, he is visibly cut off from the social organization with no relation but that of force left between them. The trial thus proceeds without any issue in the common-law sense being made up, and commonly at first with the examination of the defendant. He is not sworn, but is cautioned to tell the truth, and may be compelled to answer questions. The examination is conducted by the presiding judge from notes of preliminary examinations; and however courteously and fairly, and, in fact, because in the interest of public justice it is fairly conducted, it is apt in its progress to present the spectacle of the unequal struggle of an ignorant and untrained mind against one sharpened by habits of investigation, and so unavoidably comes into conflict, not only with what we are in the habit of seeing, but also with those ideas of impartiality which we attach to the judicial office, when its rigorous observance is the last refuge of the unfortunate. The active part here taken by the bench looks too much, in our eyes, as if that very justice, which sits to hold the balance, were taking sides against the weaker party, which is thus attacked in the only quarter where it can look for protection.
The appearance of the defendant on the stand is no longer a novelty with us. As he is not here sworn, and does not testify under the penalties of perjury, his position is easier. The right of compulsory examination does not therefore seem to carry with it the right of obliging him to tell the truth and to criminate himself. In principle it only claims the right of ascertaining what color can be put on inculpating circumstances. There is, however, a branch of inquiry which both in law, in the words of the statute, and in practice, is pursued further than with us, the question of intention. This question the common law settles at the outset in the manner most unfavorable for the defendant, in the principle that he shall be held to intend the consequences of his acts. With his appearance as a witness it has become the subject of direct inquiry to himself alone; but the field thus opened has not obtained much recognition in the law. But intent having been here from time immemorial matter of investigation, it plays a larger part in legislation, and is more specifically inquired into, and distinctly submitted to the jury.
Subdivision of offences on this ground is carried farther than in common-law countries, and it also probably furnishes the occasion for the “mitigating circumstances,” which appear so frequently and to us so incomprehensibly in foreign verdicts. The examination of witnesses is likewise by the court. As they are, in its opinion, exhausted, counsel on either side put questions as they think proper, but not so as to take the lead in the exami
nation. In fact, they take on the same air of deference as may < be seen with intelligent counsel in our own courts, where judge or juryman puts in a question. Witnesses for the defence belong also to the case in a sense unknown to our procedure, and are paid by the government under conditions. The order of the testimony is arranged, the witnesses called, and the case put in, as we say, by the court.
In such an examination there is no question about the admissibility of evidence. When the court asks a question, it has decided that it is a proper one to ask. But there appears to be in no quarter any thought of those limitations which give us so much trouble. Any thing in the way of evidence that to the natural mind seems to be connected with the case is put in without objection ; and, although it goes here and there beyond what is allowed by our rules, it takes less rather than more time. But then the judge is likely to be a person of superior intelligence and capacity for business, without any interest in prolonging it. In the hands of opposing counsel the case might readily be very different.
When the evidence is in, the issue is made up by giving to the jury one or more questions, following the words of the section or sections under which the defendant is complained of, and the complaint. They are prepared by the court, with the help of such suggestions as may be made by counsel. The law question, if there is one, may be carried up. They are accompanied by such definitions of the statute and of the offence as appear proper, but without any formal charge, and especially without expression of opinion on the part of the court.
The questions will read, for instance, as follows: Is the defendant guilty of murder, in that, at such a time and place, with the purpose of causing his death, and with malice aforethought, he struck A. with a knife, of which blow A. died? Is the defendant guilty of manslaughter, in that he struck A. so
that he died ? Is the defendant guilty of assault with intent, &c., in that, &c.?
The arguments of counsel are addressed to the points thus presented. It is possible that the definiteness with which they are made may have a corresponding influence on the deliberations of the jury; it certainly seems to have on the efforts of counsel, which are very far from reaching the heights of oratory sometimes attained in our criminal courts.
The answer of the jury to the questions submitted is, “ Yes,” or “ No,” by more than seven votes. Unanimity is not required, and as it generally happens that the majority of a jury are of one way of thinking on the first ballot, it is to be presumed that the authors of this system were of the opinion of Talleyrand, that first impressions are honest.
Sentences are in general, I should say, lighter than with us; mostly to hard labor, with loss of civil rights for a longer or shorter period. This entails supervision by the police. Capital punishment is practically abolished, though still on the statutebook for murder and high treason.
There are few things in this procedure which lawyers of the common-law school would often care to adopt. The two systems are so radically distinct, they start from such different principles, and in the course of time have been thought out so consistently to the last detail that, in its proper place, every part possesses a value which would be wanting anywhere else. But of the two this one has been in operation longest, over a far greater variety of people in different stages of cultivation, to all of which it has proved its adaptation. Even if there is nothing to adopt, it does not prove that all the advantages are on our side. A comparison of the two, showing how similar results are obtained in different ways, and a gain in one direction makes up for a loss in another, ought to expand one's legal horizon and help towards a really better comprehension of both. The extension of the power and functions of the court brings with it a corresponding diminution of those of counsel, whose character and office is by no means the least important part of judicial procedure. The inferior opportunity to shine in the public view has its effect on the position of the whole legal profession, makes of it a soberer and more retired pursuit, on the level with other callings, and no more than they the stepping-stone of ambition. The conduct of