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statute book has been that a diplomatic officer has been able to exhibit the probably unique spectacle of a judge, not trained to the administration of the law, sitting alone, without a jury, and condemning a man to death on his sole responsibility. Obstupuit mundus ! Without entering upon the question whether either associate-judges or jury would have made any difference in the sentence rendered, we may say at once that the mode of rendering it enforced by the rules which governed the U.S. Minister to the Porte is not likely to be favourably commented upon in any version of the “règlement' of the mixed Courts. That some such revision must soon take place is patent from the near approach of the date when the Capitulations will revive if the Courts are not re-established. We have welcomed this opportunity of bringing up the subject, because we feel its importance, and are only surprised at the apathy which seems to prevail. We do not hear of any diplomatic interchange of opinions as to the best course to pursue in 1881, and yet 1881 is very near at hand. The Egyptian Courts gave rise to some lively discussion at the Antwerp meeting of the Association for the Reform and Codification of the Law of Nations in 1877. Nobody, we believe, would deny that revision is wanted, but most persons, so far as we can gather, who are acquainted with the old and the new systems of jurisdiction in Egypt, would vote for the re-appointment of the Courts for at least another term of years. After due revision of their constitution and powers, we may observe, with regard to any dissatisfaction felt as to the Mirzan case, that, to say as is said by the American journal, the Saratogian, cited, without adoption of its views, by the Albany Law Journal, that an American citizen who is “ not satisfied” with the system which would condemn him to death in a foreign country on the decision of a single judge, ought to “ remain within the jurisdiction of the Constitution," is a recommendation which, in these days of constant travel, and as offered to a travelling people like the Americans, seems to carry within itself the foregone conclusion of its rejection. To say, as the Saratogian says, that an American citizen, if he does go abroad, should “ refrain absolutely while abroad from the commission of crimes,” is to utter something very like a platitude. We can only repeat, in conclusion, that whatever is done in regard to the Egyptian Courts must be done speedily. We hope it will also be done well and carefully, so as to strengthen the hands of justice.
THE LAW MAGAZINE AND REVIEW.
No. CCXXXIX.–February, 1881.
1.—CROWN PROSECUTIONS: RIGHT OF
REPLY. W RITERS on the practice of the Criminal Law and on
V the Law of Evidence, as administered in England, inform us that in the case of public prosecutions, whether for felony or misdemeanour, instituted by the Crown, the Law Officers of the Crown, and those who represent them, enjoy as their peculiar privilege or prerogative, the right of a general reply, although no evidence be adduced on the part of the defendant. It is unnecessary to remind the professional reader that no such privilege is enjoyed by the prosecuting counsel in an ordinary criminal case; and to those who have had much experience of Criminal Courts, especially in the conduct of defences, the importance attached to the possession of the “last word,” and the devices resorted to, and the miscarriages of justice that sometimes happen in the effort to secure it, are well known. The law officers and their representatives, therefore, seldom appear as prosecutors without having their privilege challenged, and at least a protest entered against its exercise, though the Judges—whatever their opinions about the justice or expedience of the claim - being bound by “immemorial usage," are generally obliged to decide in favour of "privilege.” The objectors, however, are encouraged in their course by the fact that the Judges have not adopted one uniform rule on
this subject, and are not quite agreed either as to the cases in which, or the persons to whom, the privilege is applicable ; for, while the majority of them have held that the law officers and those who represent them were entitled to the privilege, others, such as Mr. Baron Martin and Mr. Justice Byles, have restricted it to the Attorney-General of England in person, and declined to accord it to the Attorney-General of the County Palatine of Lancaster-even when prosecuting within that County.
In former times, when this privilege was but seldom claimed, its exercise was scarcely felt to be a public grievance. But the circle of privilege has been gradually widening, and from the Attorney-General it has got to the Solicitor-General, and from them to any one who says he represents the Attorney-General: from the strictly criminal cases to cases in the Exchequer in which the Crown is concerned (6 Ex. 464), and now, under the Prosecution of Offences Act, 1879, Lord Justice Bramwell has held that the privilege of the reply may be claimed in a case insti. tuted by the Director of Public Prosecutions, under the direction of the Attorney-General (case of the Directors of the Northern Counties of England Fire Insurance Company, tried at Manchester Summer Assizes, 1880). The grievance, therefore, seems to have become sufficiently frequent and wide-spread, and the champions of privilege sufficiently loud in their demands, to justify us in directing attention to the subject, and inquiring into the grounds for its existence. A crime being a violation of a right, considered in reference to its effect on the community at large, and one of the professed objects of the institution of Civil Government being the maintenance of the order and conservation of the peace of the community, the prosecution and punishment of crime would seem to be one of the primary duties attaching to the Crown, whose peace has been infringed, and whom therefore such offences chiefly concern. The offence is not against the individual injured, but against the community or State, and therefore a prosecution should be instituted, not by the individual, but on behalf of the State by its own officer. Such a duty has, indeed, been recognised and acted on by most States, but in England only to a limited extent; criminal proceedings here being “as the general rule, instituted at the instance of a private prosecutor, that is to say, either by the person who has himself been the subject of the offence, or (in the case of misbehaviour, punishable by the infliction of a penalty) by some common informer for the sake of money; and it is only occasionally that the Crown interferes directly, and that the alleged offender is prosecuted by the Treasury, and the Attorney-General directed to conduct it” (Stephen's Commentaries, vol. 4, p. 376). For though the Sovereign lends the sanction of her name to a prosecutor whenever there is sufficient ground for instituting a criminal suit, that is about the utmost she affords him; he cannot even file an information through the Master of the Crown Office, in the case of “ gross misdemeanours," without incurring expense as well as trouble, and in ordinary cases finds his firmest ally in Policeman X.
A system of law that has grown up so gradually as that of England has-coinposed of so many different elements, and into which custom enters so largely, is tolerably certain to exhibit some anomalies in the eyes of the “Scientists." As Bacon has put it—" Like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountain.” And the English being essentially a practical people, as M. Taine has pointed out, prone to the study of facts rather than fancies and theories, the writers on English law, when laying down its theory and reducing its principles to the hard and fast lines of the civilians, are ever and anon
thwarted in their efforts by the irrepressible “immemorial usage”—and thus we often find that “the philosophers advance many things that appear beautiful in discourse, but lie out of the road of use" (Advancement of Learning, book 1, chap. 3). Though, therefore, in theory, the commission of any crime is an outrage on the entire community, and, as such, ought to be prosecuted by the officers of the State as representing the public, still, in practice and in fact, it is not so recognised in England. When A. has his handkerchief or his watch stolen from him, it is seen that although the entire community ought to feel aggrieved, and forthwith proceed to vindicate its broken peace and security, practically, it takes but little interest in it, and is not visibly affected thereby. The State, therefore, while theoretically disapproving the thief's action, leaves the particular unit of the community, who has been more particularly personally aggrieved, to make his complaint to the typical Policeman X, who, in the end, is probably bound over to prosecute, and in the majority of cases discharges the functions of a Public Prosecutor at a very modest outlay on the part of the public. Particular kinds of crime, however, seem to have the effect of perturbing and calling into action several units, and then an outraged community is represented by some association or society, whose professed anxiety may be to suppress vice; or to protect the female sex; or to save donkeys and other animals from undue cudgelling or overpersuasion on the part of their drivers. But it is only in a very few instances, and in the case of atrocious crimes and great commercial or social frauds, that the community, as represented by the State, awakes to a consciousness that its interests are in jeopardy, and becomes sufficiently agitated or affected as a whole to take practical action by the hands of the Treasury officers. That this is no exaggerated picture of the present condition of public prosecutions in this country, will sufficiently appear from