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CRIMINAL PROCEDURE–FRENCH AND ENGLISH.
E have frequently had occasion to make suggestions, in
the spirit of perfect respect towards our neighbours, upon the faults in their system of procedure. It is well known that the Code Napoleon was left in an avowedly imperfect state upon this most important branch. We may well call it important when we reflect on what lawyers and legislators have oftentimes stated, that it would be difficult to determine whether a bad system of law with a good method of procedure, or a bad rule of procedure with a good frame of law, were the greater evil. Perhaps this remark applies in a peculiar manner to the criminal law, as the evils resulting from a faulty criminal procedure are incalculable. The escape of the guilty, and the punishment of the innocent, are the inevitable consequence.
Two trials have lately taken place in France, which afford remarkable proofs at least of the escape of the guilty; partly owing to the vicious mode of procedure, perhaps in part also owing to the defect of judicial virtues in those who presided. We refer, of course, to the cases of child-stealing and childmurder; and first of the former :
A young woman had been seduced, and, in order to make her paramour believe that she had borne him a child, and induce him to marry her, she stole the infant child of a judge from the nurse which had the care of it. Being put upon her trial, she did not deny the theft; but her advocate showed that her seducer had behaved as ill as possible, and had shown a total want of feeling for her situation, all which was entirely beside the question that the court had to try; and he read a sentimental letter of the culprit, which appears to have strongly affected the jury. Its composition was greatly praised; and the argument founded upon
this document, if we must call such nonsense an argument, was, that a young person who could write so touching a letter was incapable of the offence which she was proved to have confessed out of court, and did not deny on her trial. The jury acquitted her; and it does not appear that the judge took any pains whatever, or indeed made any observation, tending to keep them right. It was a scene of sentimentality throughout, and all on one side ; there was no pity whatever expressed for the unhappy parents of the stolen child, who for many days were kept in misery, and had given up all hope of recovering their infant. It happened (although we don't at all rely upon this as an aggravation of the misconduct we are censuring—but it happened) that the letter which made the sentimental court perpetrate an act of flagrant injustice, had not been written by the culprit at all, but had been copied by her, word for word, out of a printed romance. Without this accidental circumstance the case would have been complete against the court and jury; but they were, in consequence of it, covered with ridicule such as we will venture to affirm never before visited the errors of
any judicial body.
The other case did not exhibit, in so remarkable a manner, the proneness to let mere sentiment interfere with the only matter before the court; yet there was this interference to a considerable extent. The daughter of a person in good circumstances had been seduced by the coachman, the only doubt being whether she or the man was the seducer. She proved with child, and the mother, assisting at her confinement, murdered the newborn infant by throwing it into the fire. The only question for the court to try was, whether or not the child had been born alive. The mother's defence was, that she acted to save her daughter's reputation; the daughter said the child was born alive, and only denied having made the first advances to the coachman. The verdict of the jury acquitted the daughter altogether, and found the mother guilty, with extenuating circumstances. The sentence was twenty years' imprisonment, with hard labour. Unless the child was born alive, no offence had been committed; therefore, the whole sentence proceeded upon the ground of a murder having been committed ; and both judge and jury appear to have regarded the case for the daughter's reputation as an extenuation, though not a justification of the crime. It did not appear that the daughter had remonstrated with the murderer ; but she was held to have committed no offence though she consented to the crime ; for the acquittal was not put upon the ground of the mother's overawing the daughter by her authority and her violence.
It is right we add, that, as no authentic account has been published of these cases, we may not hare given all the matcrial particulars with perfect accuracy; and we are especially bound to regard the possibility of the learned persons who presided at the trials, having been so represented in the newspaper reports as to infer greater blame than their conduct deserved. But some things, and these the most important, are past all doubt; and, beyond any other in importance, is to be regarded the allowing matters wholly beside the question of “guilty” or “not guilty" to be mixed up with the evidence, and to enter into the consideration of them. Thus, in one of the cases, the only question was whether the child had been born alive; but the court suffered the conduct of the daughter and of her paramour to be discussed, as well as the mother's regard for the daughter's reputation, and that of the family. In the other case, the question was whether a theft had been committed; the object of the culprit in committing it was allowed to be discussed, and her letter given in evidence to prove it. No doubt, these matters might be fit for the consideration of the court in meting out the punishment; but they were presented to the jury who had to try the fact, and in one of the cases they prevented a conviction ; possibly in the other also they confined the conviction to the case of the mother.
The cardinal defects in the French system which give rise to such fatal errors in the application of the Criminal Law, are the absence of all rational principles in the admission or rejection of evidence, and the allowing the whole facts and circumstances of the case, whether material to the question or not, to be laid before the jury. Every thing, whether in writing or in conversa
tion, which any one can tell, is given in evidence; and when all this hearsay relates to the question, it would be bad enough to let it be heard unsifted by the jury; but still more preposterous is it, if unconnected with the inquiry, to suffer its introduction. If a professional judge alone had to decide, there would be some risk of his mind being distracted and biased by the prejudice created were the matter laid before him. But where a jury of wholly inexperienced persons are to decide, even let the presiding judge take ever so much pains to warn them against the impression made by the introduction of hearsay statements, or statements beside the question, there is almost a certainty of undue effect being produced on their minds. Where the result is the conviction of a person not guilty, the court can set that right, so that the innocent shall not suffer; but where an acquittal of the guilty is secured by their improper introduction, the evil is without remedy.
The requiring a jury to give their opinion upon circumstances of aggravation or extenuation, is certainly a fruitful source of the evil complained of. If it be said that these circumstances may be proved or disproved by conflicting evidence, and that on this the jury should decide; we must recollect that, unless the law has declared the circumstances as affecting the nature of the offence, the leaving them to be considered by the jury is really leaving in their hands the punishment to be awarded. But is it not far better to leave any extenuating circumstance to the consideration of the judge, who, if it is not on all hands admitted to exist in the case, may ask the jury in a conflict of evidence to assist him with their opinion? One course is to let the jury recommend mercy, and there can be no reason to doubt of this being sufficient. The greatest absurdities are caused by the French practice, even where it does not interfere with the decision of the cause. Circumstances are found to be extenuating which are manifestly indifferent-nay, not rarely, which are of aggravation. Thus, a young woman being tried for the murder of her father, the jury found it an extenuation of the parricide,
VOL. VIII. NO. XVI,
that she had put her father out of the way because he opposed her marriage with the man who proved her accomplice !
We have on the present, as on many former occasions, res tfully but earnestly recommended to our illustrious neighbours the adoption of some rules like our own, for confining the charge to a concise statement of the offence according to the law, and excluding from the inquiry all hearsay evidence, and all matters, however proved, which do not touch the question. Very far indeed are we from holding up our system as free from defects---nay, as incapable of improvement by borrowing some part of theirs. Their examination of the prisoner by the judge, we hold to have the same effect of defeating the ends of justice which the barbarous and now happily exploded practice of torture had ; we regard it as a species of torture, which may obtain confession or half confession from a person of weak nerves or imperfect understanding, and which to a determined and resolute person can only be the cause of uneasiness, without the least tendency to elicit the truth. But we can see no reason whatever for refusing the extension of Lord Brougham's most salutary act to criminal cases, when we know what an important reform it has produced in our civil procedure; that is, allowing a defendant to be heard if he is willing to undergo cross-examination, though here we should be for confining that cross-examination to the counsel for the prosecution, and not run the risk of the French practice being introduced, which gives the judge this power. The protection of witnesses in all cases, civil as well as criminal, from all self-crimination, we conceive also to be against every principle, and that here we may well take a leaf out of our neighbour's book. Another thing in which the French and the Scotch criminal procedure is better than our own, and a matter of some importance, is the requiring a list of the witnesses for the prosecution to be served upon the prisoner, leaving it always in the court's power to postpone the trial on account of evidence very recently obtained. The French procedure gives persons acquitted considerable facilities of obtaining damages from prosecutors, or from persons who have, by information to the autho