poetry interspersed in the narratives of the Heimskringla, are, on the whole, tolerably successful. But we must own that we scarcely at first recognised, in the following somewhat fantastic verses, the simple rhythm and manly force of our old acquaintance the Biarkamál, as sung at the Battle of Stiklestad :

Hrolf of the bow,

Hare of the blow,

Up in your might! the day is breaking;

'Tis Hildur's game that bides your waking?

We venture to subjoin a simpler and soberer version, which we think less distant from the mark; and we add below the original Icelandic, to facilitate the task of those who are inclined to make a comparison.*

The day is up; the cock's proud plumes make a resounding din;
The hour is come when thralls at home their weary work begin:
Awake, arise, and yet again, companions dear, awake,

Ye who with me in Athil's train an honour'd place would take.

• Hàr of the hand that gripes so hard!-Hrolf that can bend the bow! All men of good and gallant blood that fly not from a foe

;

I wake you not to wine, my friends, or woman's whisper'd vow; 'Tis Hilda's rude and ruthless game to which I wake you now.'

Mr Laing may not succeed in one object, which he tells us he proposed to himself in his present undertaking-that of producing a work that shall be attractive 'for the common man.' The ·Heimskringla, we fear, has too many strange names and obscure allusions; assumes too much knowledge of distant scenes, events, and manners; and, what is a greater obstacle, has too little moral or imaginative attraction to be ever popular with the general gender.' But he has nevertheless done excellent service to English literature by this translation, which sets before us a vivid picture of characters and customs connected, and yet contrasted, with our own; and we therefore strenuously recommend its racy delineations to the perusal of all students of the early history of our country and countrymen.

6

ART. II.-1. Actenmassige Darstellung Merkwürdiger Verbrechen. Von ANSELM RITTER VON FEUERBACH. (Narratives of Remarkable Crimes, compiled from the Official Records. By ANSELM VON FEUERBACH.) Giessen: 1839.

2. Strafgesezbuch für das Königreich Bayern. (Penal Code of the Kingdom of Bavaria.) Munich: 1838.

ANSELM VON FEUERBACH was one of the most remarkable men whom Germany has recently produced. He was eminent in practice and in theory, as a judge, as a legislator, and as a writer. He long and worthily presided in the highest criminal court of Bavaria; he was the principal framer of the Bavarian penal code; his exposition of the general criminal law is a textbook throughout Germany; and the last of his works (mentioned above) places him in the first rank as a narrator and as a psychologist. Of some portions of this work, and of the system of procedure which it exemplifies, we propose to give a short

account.

We must warn our readers, however, not to expect a German trial to afford to them the same sort of instruction, or the same kind of mental exercise, which they have been accustomed to find in the reports of English criminal proceedings. An English report is a drama in which the reader, unconsciously perhaps, becomes one of the principal actors. He unavoidably assumes the character of a juryman, and, with the exception that he reads the evidence instead of hearing it, he has all a juryman's means of arriving at a verdict. He has before him the opening speech

of the counsel for the prosecution, which states what is expected to be proved; the examination and cross-examination of the witnesses; the defence by the prisoner's counsel; and the recapitulation and commentary of the judge. Each set of appearances and of conflicting inferences, is explained and enforced by an advocate, and they are then weighed before him, against one another, by an impartial and experienced moderator. A more instructive exercise in the great business of life, the balancing of probabilities, can scarcely be imagined. But if, after having ascertained the prisoner's guilt, he wishes to account for it; if he wishes to inquire what were the accidents of natural disposi tion or of education which predisposed him to the commission of crime, or the circumstances which supplied the place of such a predisposition; if he wishes, in short, to make the prisoner a subject of philosophical inquiry, he gets no assistance from the English courts. The only question submitted to the jury, and the only question on which, therefore, evidence can be received, is, did the prisoner wilfully commit the act of which he is

accused ?

A bright light is endeavoured to be thrown on his conduct, immediately before and immediately after the occurrence which occasions the trial; but, with the rare exception of the cases in which insanity is the defence, all the rest of his history is left in darkness. Even as to the narrow question which alone is allowed to be investigated, the reader must often be struck by the inadequacy of the means employed. A trial resembles one of those games, in which the problem is to effect a certain object, complying with certain conditions imposed for the express purpose of creating difficulty, and giving room to chance. That the accused, and those who are his judges, should be clearly informed what is the offence with which he is charged, or, in other words, that the trial should be preceded by an indictment, is proper; but is it rational that the omission of some technical word, which neither the prisoner nor the jury would have remarked or have understood if it had been present-or the variance of the fact laid, from the fact proved, in some utterly unimportant circumstance-should at once stop the proceedings; and exempt a man whose guilt is manifest, not only from immediate conviction, but sometimes even from further inquiry? Again, it is quite right that the investigation should not be unnecessarily prolonged, that the accused should not be broken down by an indefinite imprisonment, or harassed by repeated and abortive trials. But the English rule that the trial, when once begun, should be continuous -that the unexpected absence of a witness, or some unforeseen want of proof, should produce an immediate acquittal,

though perhaps a delay of a few hours would have remedied the defect is a superstitious adherence to a useful regulation. Again, the more heinous accusations are those as to which it is most difficult to obtain direct evidence ;-neither premeditated murder, nor robbery, nor arson, is often committed in the presence of third persons. The proof, therefore, is almost always circumstantial that is to say, it consists of appearances which can be accounted for only, or most easily, by supposing the prisoner's guilt. The most obvious, and generally the most effectual, mode of ascertaining the truth or erroneousness of this supposition, is to examine the accused. If it be false, the clearness, consistency, and veracity of his answers will assist in establishing his innocence. If it be true, he must afford evidence as to his guilt by confession, or by silence, or by falsehood. But, in an English trial, not only is such examination forbidden, but the pri soner is allowed, indeed recommended, to leave his defence to his counsel, and to remain himself a mere passive spectator. Again, where several persons are suspected of having concurred in a crime, the admissions by one must often supply proof against the others. But the confession of a prisoner is not supported by his oath; though it be received against himself, therefore, it is not allowed to be evidence against any one else. It would seem that, to avoid this difficulty, the persons suspected might be tried separately, and those who are not yet under accusation might be summoned as witnesses. But this expedient is rendered useless by the rule, that no man is required to answer questions when he chooses to believe, or to assert that he believes, that his answer might render himself liable to legal punishment. He may be required to give evidence which may ruin his fortune or destroy his character; but if it would expose him to a chance, however slight, of any penal infliction, however trifling, he has a right to say, I refuse to answer. As a last resource, the accomplice, whose evidence is to be used, is allowed to bargain that he shall not be prosecuted himself. As the price of his betraying his associates he obtains an impunity, mischievous to society and disgraceful to the law, which disgusts those who can com prehend its grounds, and perplexes those who cannot.

We will illustrate some of these remarks by a reference to one of the most solemn legal proceedings which has occurred in England during the present century. The Earl of Cardigan was accused of having shot at Captain Tuckett with the intent to kill, to maim, or at least to injure him. The trial took place before the highest court in the empire, the House of Lords. A great offieer was created to preside over it. The judges were summoned to give their advice. All the foreign ministers and the most

eminent of the British public constituted the audience. Nothing could be more impressive than the ceremonial. To the unlearned, the proof of the prisoner's guilt appeared to be complete. The duel was fought about two hundred yards from the Wandsworth windmill. The miller, from his elevated position on the stage of the mill, saw the party approach and take their ground. While he was hurrying to interfere, he saw the principals receive pistols from their seconds and fire once, and receive fresh pistols and fire again. One of them fell wounded as he came up. The wounded man gave to him his card, engraved with the name Captain Harvey Tuckett; the other admitted himself to be Lord Cardigan. Captain Tuckett was allowed to be removed. Lord Cardigan was taken to the police-office; and, as he entered, told the inspector that he was his prisoner; that he had been fighting a duel, and had hit his man. There was, therefore, the testimony of an eyewitness, and the confession of the accused. What more could the court want? What they wanted was to know the second and third Christian names of the wounded man. The indictment stated his Christian names to be Harvey Garnett Phipps. The card omitted the two latter. A Mr Codd, who acted as Captain Tuckett's agent, was examined, and proved what were his Christian names; but, as he was not present at the duel, could not identify his Captain Tuckett with the wounded man. But it was supposed that Sir James Anderson, a physician, who had been on the ground to give professional services, could add the information that was wanted.

This was his examination:

"Lord High Steward. Sir James Anderson, I think it my duty to inform you, that you are not bound to answer any question which may tend to criminate yourself."

Mr Attorney-General." Are you acquainted with Captain Tuckett?"

"I must decline answering that."

"Were you on that day called in to attend any gentleman that was wounded?"

"I am sorry to decline that again."

"Can you tell me where Captain Tuckett lives?"

"I must decline that question."

P❝ When did you last see Captain Tuckett?".

• ❝ I decline answering any question that may tend to criminate myself."

D

And you consider that answering any question respecting Captain Tuckett may tend to criminate yourself?"

It is possible that it would."

"Then the witness may withdraw.".