The notes from which these articles are taken were made, it will be remembered, in 1863-4, and the account given in the last number of the organization of the judicial system of England and France, must be considered as of that date. The progress of change since then in England is evidenced by the fact that the Superior Courts of Westminster are now composed of six Judges. It seems also that an appeal now lies from the Vice-Chancellor's decisions to one of the Lords Justices, instead of to the Lord Justices' Court. In this connection, it is proper to state that my first article contained a positive error, to which my attention has been called by an English friend. In speaking of the county courts, it was said that they were composed of local magistrates, and were now vested with power to dispose of civil cases of limited amount. The civil jurisdiction referred to has been entrusted to county courts presided over by a single Judge, and made courts of record. This change was made in 1847, and the tendency of legislation since that time has been to enlarge the jurisdiction of these courts.

There are several striking differences in the administration of criminal justice in France and England, besides those already noticed. The indictment in France consists of a detailed narration of the prisoner's life, especially dwelling upon any crimes or offenses against the law of which he may have been guilty, or even suspected to have been guilty, and of all the circumstances connected with the particVOL. II-NO. II-1.

ular offense for which he is to be tried. This narration is usually drawn up with great care, and with a view to dramatic effect, and in important cases reads like a romance of the Eugene Sue order. On the trial, evidence is admitted in relation to previous offenses, or supposed offenses, as well as in relation to the principal charge. There is, moreover, no restriction upon the character of the evidence which may be given. Hearsay, rumors, and opinions are freely admitted. The record of every criminal trial is, therefore, necessarily burdened with a mass of what we would consider irrelevant, and even misleading testimony. We have already alluded to the examinations to which the defendant is subjected, both privately before the trial and publicly when on trial. On these latter occasions, and there is reason to fear that it is even worse in private, the Judge too often sinks his position as an impartial arbiter into the stern and inexorable inquisitor. The guilt of the prisoner seems to be taken for granted, and the awe naturally inspired by the judicial character is mercilessly used to extort a confession of guilt, or of circumstances which tend to establish guilt. The custom is for the Judge not only to interrogate the prisoner formally on trial, but to turn to him abruptly, at any stage of the case, and especially when a leading fact is deposed to, and to demand from him an immediate explanation. If an answer is given, the Judge often denies its truth, and points out objections and supposed inconsistencies, which the prisoner is expected to meet at once. It is easy to see how ignorance and timidity may be worked upon, especially if the Judge indulges, as he often does, in such expressions as these: "You know you are not telling the truth;" "Do you mean to add perjury to your other offenses," etc. The judicial dignity and impartiality are seriously compromised in the eyes of spectators by such a mode of conducting the trial. Moreover, the effect often is to bring the defendant and the witness into direct collision, and to turn the most solemn of all scenes into one of wrangling and recrimination.

Although the inquisitorial power thus exercised in France, and all over continental Europe, is occasionally dangerous to innocence and timidity, yet the general result is otherwise, and it is certainly favorable to the conviction of guilt. And it may be safely said, that while the examination of the defendant is sometimes abused, our own and the English courts are entirely too squeamish in utterly rejecting it. Mr. Stephens, in a recent work on the Criminal Law of England, written in a philosophical and inquiring spirit has come to the conclusion that the accused ought, in all cases, to be examined when

Such a

first taken up, and his examination reduced to writing. course would often prevent made up defenses (not uncommon in England) involving the character of innocent third persons; as in the celebrated Costello case, for which Judge Phillips has been so severely handled, and quite recently in the Scottish cause celebre of Jenny McLaughlin. The examination ought to be made as soon as possible after the arrest of the defendant, and by some person other than the Judge who is required to try him. With these restrictions, and, perhaps, with some limitations as to the place and mode of examination, the practice might be introduced with advantage into our system. It is well known that the continental mode prevailed in England until a comparatively recent period, and there can be no doubt that it was allowed to fall into disuse because of the gross perversion of its instrumentality in the trials of persons for political offenses. The extreme severity of the English Criminal Code of the last century tended to produce the same result, the effort of both the judge and jury in a large number of cases being rather to acquit than condemn on account of the disproportion between the crime and its punishment.

The English are, in general, very unsparing in their abuse of the French inquisition, as they term it. They are never tired of referring to the cases in which it seems to have resulted in doing injustice. A recent case has given a new impetus to their zeal. A woman named Rosalie Boise was convicted of the murder of her father solely upon her own confession, for there were no circumstances, nor any evidence tending to establish her guilt. The jury, luckily as it turned out, found her guilty, with extenuating circumstances, and she was sentenced to imprisonment for life. Within a year after her conviction, the real murderer was tried and condemned for another offense, and, in the course of his examination, confessed to having committed the crime for which Rosalie was undergoing sentence. Thereupon, he was put on trial for the latter offense, and convicted. Under these circumstances, where two persons, without any connection in the act, are each convicted of the commission of the same crime, the French law provides that both convictions shall be set aside, and the parties re-tried together. This was accordingly ordered by the Court of Cassation, and on the new trial the man was convicted, and the woman acquitted. It turned out, on the second trial, that the woman had been driven to confession by the harsh treatment to which she had been subjected, and by the repeated assurances of the examining Judge that it would be bet

ter for her in the end. Although far advanced in pregnancy, she had been confined in a close cell without any of the ordinary comforts of life, and refused all professional assistance, or even intercourse with her friends until she had confessed. It also appeared that afterwards, and before the trial, and again on the trial, she had withdrawn the confession, insisting that it had been wrung from her by official oppression, and had asserted her innocence. Her conviction, therefore, without any corroborating circumstances, was inexcusable, and can only be accounted for by the bias which the inquisitorial practice had produced on the Judge's mind.

This was a shocking case; but several recent instances of erroneous convictions, under the apparently more merciful English system, would seem to throw the balance in favor of the continent. An application to Parliament for relief on behalf of a sufferer in one of these cases, has lately brought the subject prominently before the English public. I quote the editorial of one of the leading London journals on the occasion. "Much as we are accustomed," is its language, "to boast of the perfection of our system of jurisprudence, it is still within the memory of man that a girl has been hanged for murder which she never committed; that a lawyer has been wrongfully convicted and transported for forgery; and a clergyman imprisoned because two children had perjured themselves. The case of Mr. Bewicke, of Threepwood Hall, Northumberland, is as monstrous as that of Mr. Barber, (the lawyer), or that of the Rev. Mr. Hatch. That two Judges should have sentenced a gentleman of high character and position, to four years penal servitude, on the evidence of ruffians who had themselves been convicted of crimes of magnitude, is a fact which shows how little respect is paid to that liberty of the subject on which we so pride ourselves, and is enough to make every man of us feel unsafe when he walks abroad. Mr. Bewicke, a gentleman of high position, whose family is traceable in an unbroken line to the conquest, was mulcted in the costs of a law suit, which he refused to pay except under coercion. The sheriff employed four men to distrain the debt, one of whom had been sentenced to seven years' transportation for perjury, and who was out on a ticket-ofleave; another had been three times punished for felony; the third had been several times convicted for assaults and for poaching; and the fourth had been successfully prosecuted for beating, and afterwards deserting his wife. These men conspired to charge Mr. B. with firing a pistol at them while in the discharge of their duty; the truth being that he had only fired off the pistol to change the load,

Upon his trial,

after calling out to the officers not to get in the way. Mr. Bewicke undertook his own defense, was convicted, and sentenced to four years' penal servitude. A year afterwards the conspiracy was disclosed by one of the parties, and the other three were convicted of perjury and punished. Thereupon Mr. B. received a pardon. In the meantime, however, his property had been forfeited by the conviction for felony, and sold at a great sacrifice. The application now made to Parliament is for relief for the pecuniary losses sustained."

The British Government was very unwilling to entertain the application at all, and, I believe, it was finally rejected upon the ground that Parliament would, in that case, be assuming to act as a Court of Appeals in reviewing and reversing the legal proceeding, which would be a very dangerous precedent. It is a little remarkable, that almost at the very time this application was made to the British Parliament, a similar application was made to the Legislative Assembly of France, by the heirs of a man named Lesurque, who had been erroneously convicted and executed toward the close of the last century, for a highway robbery, of which he was innocent. The application was to have re-imbursed to his family a sum of fifty thousand francs, with interest, which had been forfeited to the State under this conviction. A majority of the Legislative Assembly at one time voted in favor of the application, but the Government resisted the measure so strongly upon the ground of its impolicy as a precedent, that the vote was reconsidered, and the application rejected. There can be no doubt of the danger of opening the door to such applications on behalf of convicted criminals, or their families, for, if once the way were opened, every conviction, where the amount would justify the attempt, would be sought to be legislatively reinvestigated. Any Government would be charged with a heavy burden, if it were made responsible for the errors, or supposed errors of its judicial tribunals. Very few cases are so plain as not to admit of any doubt, and ingenious counsel might easily throw suspicion over any finding. After the Government has provided for the trial of criminal causes in the manner best suited to the institutions of the people, with such guards for the protection of innocence as Legislative wisdom may suggest, it cannot be held responsible if the machinery sometimes goes wrong. The remedy for the pecuniary loss in such cases is to do away with the forfeiture of goods. This has been done in France and America, and ought to be in England, if in its recent innovations it has not already been.