on their behalf clear thinking, great powers of expression and the greatest moral courage, with the result that these innocent victims, after much suffering, were cleared of the charges made against them, and as far as possible in the circumstances received reparation.

To both these eminent writers, Mr. Sims and the late M. Zola, the English and French nations respectively, and humanity at large, owe a deep debt of gratitude for their unselfish devotion to the cause of justice and their defence of the weak and the oppressed.

But Mr. Sims has recently returned to the charge, and in the case of Mary Ann Nash, known as the Wiltshire Well Mystery, he has not only, a second time, performed a signal public service in the interests of justice and humanity, but he has, as the result of that case, formulated what he calls a strong "Indictment of Crown Methods" in England. In an article entitled "Justice and Crime," which appeared in the Daily Chronicle of July 7th, 1911, Mr. Sims says:

"There is a probability now that the stress of anxiety as to the woman's fate is over the methods pursued by the Crown in obtaining her conviction will be forgotten.

"As these methods illustrate in a very marked manner the grave perils of the new system of criminal procedure which is rapidly taking the place of the old, it is well that the public should be asked seriously to consider the direction. in which we are drifting.

"It has always been our proud boast that in this country the accused person is to be considered innocent until his or her guilt has been proved. That is the British system of justice. To-day we are rapidly adopting the French system.

"The onus of proof in criminal procedure does not now absolutely rest upon the Crown. It is for the prisoner to establish his or her innocence. That is a grave danger,

but there is a danger which is even greater, and that is the

attitude of the Crown with regard to an accused person. This is so strongly illustrated in the Wilts Well case that certain acts of the prosecution demand the serious con sideration of the public."

Mr. Sims then proceeds to deal with the special facts and circumstances of that particular case, into which there is no need to follow him. They were, no doubt, put in his own cogent way and had their effect upon the mind of the Home Secretary in inducing him to grant a reprieve. But if these charges are true, they do undoubtedly constitute a very grave public danger. Without, however, enquiring into the truth or otherwise of the charges in this particular case, we propose to deal with them in a general way. We assume that most of our readers are already acquainted with the British (or rather English) system of administering justice in criminal matters. What, then, is the French system which Mr. Sims fears we are in danger of adopting? We propose to give a short sketch of this system, which in its main features is common to most Continental countries, and may therefore be described as the Continental system as opposed to the English, and also to touch upon certain aspects of the law of evidence and some other matters closely connected with the two systems.

A Short Comparison of English and Continental
Criminal Procedure.

Perhaps nothing flatters an Englishman's national pride, and contributes to his self-complacency, so much as a comparison between the English and Continental methods of procedure in regard to crime. At the same time, it is not well to adopt a pharasaical attitude and forget the essential differences in the temperaments of different nations, as well as their political and legal histories. Procedure which in one country would be regarded as repugnant to every sound principle of administration passes with indifference in

another, by reason of custom, habit, and different ideas of law and government. Notwithstanding this, we venture to think that we may take a pardonable pride in our own system, if only on account of its purity of administration and the spirit of fairness which has hitherto, with few exceptions, pervaded it.

To the ordinary Englishman a French criminal trial appears to begin thus:

President (addressing the prisoner): "Now, you guilty rascal, why did you do it?"

Prisoner: "I love my mother, and will not hear you insult her son."

And so they go on, with violence, emotion, and sensation, until one or the other is exhausted, and the Court adjourns to enable them to recuperate their shattered nervous forces. Every fact, however irrelevant, every little detail of the prisoner's life, however long past, every word and act of his that can be ascertained, is remembered and brought up against him as a lever to play upon the feelings of the jury, and show them what a dangerous sort of creature the prisoner is, and therefore, how likely he is to have committed the crime with which he is charged. Every rule of evidence, dear to the heart of an English lawyer, is violated. Hearsay evidence to the fourth or fifth degree is admitted. The prisoner is "interrogated" both publicly and privately. The whole crime is "reconstructed" and re-enacted, as far as possible, by the police and the juge d'instruction, whose duty it is to get up the case against the prisoner and secure a conviction at all costs. The prisoner is "confronted" with the witnesses, and if there are more than one prisoner, they are "confronted" with each other. The sole object of all these proceedings is to do that which is the last thing English law permits to be done, viz., to extort from the prisoner a confession. English law, on the other hand, takes every precaution possible to prevent a

In

prisoner from being entrapped into or compelled to make a confession, and no confession is received in evidence unless it is proved to have been made quite voluntarily. The French idea is derived from the Roman and Canon law of the Middle Ages, under which it was thought wrong to punish a criminal until he had made a confession. This difference of view is the basis of the difference between the two systems. As Sir J. Fitzjames Stephen has so well pointed out in his General View of the Criminal Law, the English system is litigious, the French and Continental system generally, is inquisitional. The French criminal trial has never developed beyond our Coroner's Inquest. England a criminal trial partakes very much of the nature of a civil action. The conduct of the proceedings (except in those comparatively few cases which are taken up by the Director of Public Prosecutions) is left in the hands of the injured party or of an inferior police official. The proceedings are entitled Rex (on the prosecution of A. B.) v. J. S.; just as civil proceedings are entitled Smith v. Brown; and though theoretically the Crown is the nominal prosecutor, it does not interfere until the prisoner is found guilty and convicted, when it takes him over for the purpose of punishment. Up to that point the prosecution is a game or legal duel, between the prosecutor and the prisoner, in which the judge is present merely to act as referee and see fair play, the jurors being in fact the judges. As Sir Thomas Smith says, it is they who give the "deadlie stroke." On the other hand, in France, the proceedings are entitled L'affaire Lesnier, Dreyfus, Steinheil, etc.; and the proceedings from beginning to end, when once suspicion has attached to a prisoner and he has been arrested, are conducted by the Procureur de la République, or Public Prosecutor, with his subordinate juges d'instruction, assisted at the trial by the presiding judge. The injured party is present simply as a third party, a mere spectator, the partie civile. In fact,

while in England it is for the prosecution to prove strictly the prisoner's guilt, and every prisoner is presumed to be innocent until he is proved guilty, Continental procedure is based upon the contrary presumption, that the prisoner is guilty and it is for him to prove his innocence. The burden of proof is on the prisoner, not on the prosecution. It is only fair to say that the prisoner and his counsel naturally adopt the same methods as the prosecution. Every argument of whatever kind, every form of vituperation, every appeal to prejudice, sentiment and emotion, moral, social or political, is used to play upon the feelings of the jury, and to induce them, if possible, to return a verdict of guilty "with extenuating circumstances," if not an absolute acquittal.

From what is said above it will be seen that there is a jury in France, as there is now in most other countries of Europe. The jury was introduced into France by Napoleon I, who was a warm admirer of some English institutions, and it was afterwards copied by other countries. The jury on the Continent, however, is an exotic, and is employed only in criminal cases. The jurors (messieurs les jurés) give their verdict by a majority, as in Scotland; and it is always open to them to find the prisoner guilty but "with extenuating circumstances," the effect of which is to mitigate the penalty, e.g., it takes away capital punishment in cases of murder. There is also in France a body which corresponds roughly to our Grand Jury, viz.: la chambre des mises en accusation.

In the work above alluded to, published in 1863, Sir J. Fitzjames Stephen has given such full accounts, almost reports, of three typical French trials, viz.: the case of the Monk Léotade, the Affair St. Cyr, and the case of François Lesnier, that it is unnecessary to go over the same ground again, and do badly what he has done so well; but judging from recent cases, French procedure has made but little