According to the Prussian law, a formal committal is not requisite in all cases, if formally pronounced, it is done by the judge, and until committal is pronounced the defendant is not at liberty to employ counsel for his defence, while, on the other hand, in these preliminary inquiries as well as in the proceedings before the Court the Public Prosecutor is entitled to apply to the Court, a procedure materially different from English proceedings, where the defendant is fairly heard by the justice of the peace or magistrate before any committal. In the proceedings before a jury the President questions the defendant whether he admits to be guilty or not, if he admits himself to be guilty and at the same time admits the material facts of the case, then the public prosecutor and the counsel for defendant are heard whether they consider the question of fact to be sufficiently established by the confession of the defendant. If the public prosecutor should desire it, additional questions qualifying the criminal act, are to be put to the defendant, if not admitted by the defendant, they are to be submitted to the jury. If no such questions are proposed, or if the defendant answers in the affirmative, then the Court may proceed to judgment without the jury, provided always that the Court does not entertain any doubt as to the correctness of the confession, the power given to the Court in that respect not being restricted. Before the Court proceeds to judgment it is to hear the public prosecutor as well as the Counsel for the Defendant on the application of the law.

The admission of the defendant is not a mere admission of the circumstances of the case, he must confess clearly his guilt, and the act itself as well as his personal authorship, so that the verdict of the jury is fully established by the confession of the defendant.

At the instance of the defendant or of the public prosecutor questions may be raised as to facts which in their consequences would do away with any punishment, or which would justify a reduction of the lawful punishment; or if the law should admit extenuating circumstances, or if it is to be ascer

tained whether the defendant acted with sound understanding, no proceedings before the jury are to take place, if the public prosecutor in his deliverance on these facts expresses himself in favour of the defendant, provided always that the court in its discretion has no doubt in adopting the view favourable to the defendant. It is, therefore, generally in the absolute discretion of the court whether the admission of the defendant is sufficient to withdraw the same from the jury, and if the court entertains any doubt as to the sufficiency of the admission the evidence is to be proceeded with as if no admission whatever had been made. (Sect. 75.)

The presiding judge has the conduct of the proceedings, and here we meet with a point altogether opposed to the principles of English criminal proceedings. Whilst in England any defendant is legally warned to abstain from any statement as it would be taken down and used against him, the Prussian mode of criminal procedure (sect. 76, Law dd. 3rd May 1852) imposes upon the presiding judge the duty of examining the defendant upon the facts of the case. The defendant is "expected" to answer, but he is not upon his oath, and it is of course left to the discretion of the jury what value they will attach to the declarations of the defendant. The defendant is not bound to answer at all, the law specially providing (sect. 13 Law dd. 3 January 1849) that no defenfendant should in any wise be forced to answer. As a matter of fact it may be mentioned that generally the defendants enter into the full details of the case, the common criminal of course embellishing his deeds by any lies meant for the purpose, and it is of frequent occurrence that the guilt of the accused is more inferred from his palpable lies than from other circumstances of the case. We believe that it would be a great benefit for an innocent defendant if he were at liberty to give at any moment his version before the court. It is true that silence may lead to dangerous misconstruction; if, for instance, the defendant declines to speak because otherwise a person dear to him would be implicated, or because he hesitates from honourable motives to play the

part of an informer. Such cases we believe form an exception, and will not afford reason for depriving an innocent party of his natural right to make a statement. On the other hand, it cannot be denied that there have been judges who considered it their duty to convert the examination of the defendant into a mental torture and to press for an admission; and here, of course, we get on very slippery ground, especially if we bear in mind that the jurors are selected by the president. An independent jury would easily discern a fair examination, and an inquisitorial racking. It is to be noted that the Prussian courts have held that the defendant should be at liberty to make his statement after the examination of each witness. It will not be easily understood by an English lawyer that the presiding judge also conducts the examination of witnesses. Whoever has seen the proceedings in an English Court of Justice cannot but admire the dignity maintained by the judge, supported by the bar and revered by the public; that dignity is in our view lost immediately if the judge undertakes to examine witnesses. How is it possible to imagine an examination of witnesses without supposing a certain state of facts, be it guilt or innocence, and who is to suggest the facts for investigation to the judge? and how unbecoming wou'd be the scene if a judge was forced to twist a reluctant witness, or to receive offensive answers? This examination of the witness is a clear remnant of the old inquisitorial system where it was the glory of the inquisition not to find the prisoner guilty, but to make him guilty. Unfortunately, the great mass of Prussian lawyers have been brought up in this system, and, never having seen anything better, many of them believe in the extinction of law and justice if that mischievous right of examining witnesses should be withdrawn from the judge. Whoever has seen an English trial, and had the opportunity to compare the same with the sight of a Prussian judge's examination, cannot hesitate for a moment to say where the sanctity of the law is acknowledged and really protected. The Prussian

judge is bound to allow the public prosecutor directly to put any question to the defendant as well as the witnesses, but it is left in his discretion whether he will allow the defendant or his counsel or the jurymen to put direct questions which they may consider apt for the elucidation of the facts of the case. It is only in cases where the public prosecutor and counsel for the defence consent, that the judge may leave to them the examination of the defendant, and the witnesses of the opposite party then has the right of cross-examination. The judge is at any moment entitled to resume his power to put questions directly, and he is at any time at liberty to declare the investigation closed, a very dangerous, if not arbitrary, power, for a judge of a tribunal constructed as we have

shown.

The clerk of the court has to keep an official minute of the proceedings; the questions put to the jury must be inserted in the minute, together with the answers of the jury. After the evidence has been taken the public prosecutor gives his exposition and arguments, and counsel for the defence has the last word in any case. The presiding judge then sums up and puts the questions to the jury. The questions are to be put in such form that they could be simply answered by yes or no, and the jury is at liberty to answer any question partly by yes partly or by no, the main question not to be divided into several questions. Circumstances excluding, decreasing or increasing any punishment are either to be specially mentioned in the main question, or to be put in distinct questions. The questions are to contain all facts which form the material features of the crime imputed to the defendant, otherwise the proceedings would be null and void. Among the facts to be submitted to the decision of the jury are the soundness of mind, the intent, or the negligence, on the existence of which the idea of a punishable act is dependent. The main question is to commence with the words-is the defendant guilty?

In describing the material features of the offence all technical terms are to be avoided which have not a well known

meaning applicable to the case. The presiding judge is to hand the written questions signed by him to the jury, and at the same time orders the removal of the prisoner to the out room. The jury retire to their room, and there elect a foreman by a majority of votes. He has the conduct of the deliberation, and to announce the result. The jury must not leave their room before they have resolved upon their verdict, nor can any one have access to them. After consultation the votes are given on all the questions in the order in which they have been put. The foreman is to ask singly every juryman for his vote, in such turn as the names of the jurymen have been drawn by lot, the foreman giving his vote last; if any question has been partly answered in the affirmative, the remaining part of the question is to begin with the word, "Yes, but it has not been proved that." If the question as to the main fact has been negatived, all incidental questions are to be considered disposed of thereby. In the contrary case all incidental questions must be put and answered separately, any answer unfavourable to the defendant may be voted only by a majority of votes; if the number of votes is equal, the meaning favourable to the defendant is to prevail. In every verdict by which a question is answered against the defendant, it must be expressly stated whether the same has been given by a majority of more than seven votes, or only by seven votes against five, under pain of nullity. In any other case the number of votes is not to be stated. unfavourable to the defendant has been given

If an answer

only by seven

votes against five, the Court, usually formed of five judges, is to deliberate on the point and to give the decision on the same without stating any reason for such decision.

The law further directs that every juror must to form his opinion as to any question submitted to him by a careful examination of the evidence produced for the prosecution, and for the defence, according to his free conscientious conviction, won from the whole of the proceedings before him. Before the commencement of the deliberation on their ver