The penal trial in the Netherlands was a poor one, when, nevertheless, the Netherlanders are allowed on all hands. to have enjoyed a high degree of civil liberty. It is one of the most common facts in history, that a nation is more or less advancing in nearly all the branches of civilization, while the penal trial and the whole penal law remains almost stationary in its barbarous inconsistency. The penal trial of France, up to the first revolution, remained equally shocking to the feelings of humanity and to the laws of legal logic.

The reason of this apparent inconsistency is, that, in most cases, penal trials affect personally individuals who do not belong to the classes which have the greatest influence upon legislation. This point is especially important in countries where the penal trial is not public. People never learn what is going on in the houses of justice. Another and great reason is, that generally lawyers by profession are far less interested in the penal branch of the law than in the civil. This, again, arises from the double fact, that the civil law is far more varied and complicated, consequently more attractive to a judicial mind, and that the civil cases are far more remunerative. How much the difficulty to be solved constitutes the attraction for the lawyer, we may see from the fact, that very few professional lawyers take an

judge in consequence of the trial by jury, and the strictly accusatorial character of the trial, with the most rigid adhesion to the principle of trying a person upon the indictment alone, so that the judge could be, and in later times really had been, the protector of the prisoner. Had the trial been inquisitorial instead of accusatorial, the absence of counsel for defence would have been an enormity. To this enormity Austria has actually returned since the beginning of this century. The code promulgated by Joseph gave counsel, or a "defensor," to the prisoner; but, although the process remained inquisitorial, the defensor was again disallowed. The late revolution reestablished him; but whether he has been disallowed again of late, I don't know. Nor can it be of very great importance in a country, in which the "state of siege" and martial law seem to be permanent.

interest in the punishment itself. A penal case has attraction for them so long as it is undecided; but what imprisonment follows, if imprisonment has been awarded, interests them little. Very few lawyers have taken a lead in the reform of criminal law and in prison discipline, the noble Sir Samuel Romilly always excepted.

Among the points which characterise a fair and sound penal trial, according to our advancement in political civilization, we would designate the following:-No intimidation before the trial, or attempts by artifice to induce the prisoner to confess-a contrivance which protects the citizen even against being placed too easily into a state of accusation; the fullest possible realization of the principle that every man is held innocent until proved to be otherwise, and bail; a total discarding of the principle that the more heinous the imputed crime is, the less ought to be the protection of the prisoner, but on the contrary the adoption of the reverse; a distinct indictment, and the acquaintance of the prisoner with it, sufficiently long before the trial, to give him time for preparing the defence; that no one be held to incriminate himself; the accusatorial process, with jury and publicity, therefore an oral trial, and not a process in writing; counsel or defensors of the prisoner; a distinct theory or law of evidence, and no hearsay testimony; a verdict upon evidence alone, and pronouncing guilty or not guilty; a punishment in proportion to the offence, and in accordance with common sense and justice; especially no punitory imprisonment, which necessarily must make

The idea expressed by Dr. Paley regarding this point is revolting. He says, in his Political Philosophy, that we may choose between two systems, the one with fair punishments always applied, the other with very severe punishments occasionally applied. He thus degrades penal law, from a law founded above all upon strict principles of justice, to a mere matter of prudential expediency, putting it on a level with military decimation.

the prisoner worse than he was when he fell into the hands of government, nor cautionary imprisonment before trial, which by contamination must advance the prisoner in his criminality; and that the punishment adapt itself, as much as possible, to the crime and criminality of the offender; that nothing but what the law demands or allows be inflicted,' and that all that the law demands be

6

• Lieber's Popular Essay on Subjects of Penal Law and on Uninterrupted Solitary Confinement at Labour, &c. Philadelphia, 1838. I have there treated of this all-important subject at some length.

7 Tiberius Gracchus erected a temple in honour of Liberty, with a sum obtained for fines. If the fines were just, there was no inconsistency in thus making penal justice build a temple of freedom, for liberty demands security and order, and therefore, penal justice.

On the other hand, what does a citizen reared in Anglican liberty feel when he reads in a simple newspaper article, in a French provincial paper, in 1853, the following?" The minister of general police has just decided that Chapitel, sentenced by the court to six months' imprisonment for having been connected with a secret society, and Brayet, sentenced for the same offence to two months' imprisonment, shall be transported to Cayenne for ten years, after the expiration of their sentence !"

The decree of the 8th of December, 1851, not a law, but a mere dictatorial order, upon which ten years' transportation are added by way of "rider" to a few mouths' imprisonment adjudged by the courts of law, is this:

“Article 1. Every individual placed under the surveillance of the high police, who shall be found having broken his assigned limits of residence, may be transported, by way of general safety, to one of the penitentiary colonies at Cayenne or in Algeria.

"The duration of transportation shall be five years or less, and ten years or more." (We translate literally and correctly, whatever the reader may think of this sentence, which would be very droll, were it not very sad.)

"Article 2. The same measure shall be applicable to individuals found to be guilty of having formed part of a secret society."

The French of the last sentence is: individus reconnus coupable d'avoir fait partie d'une société secrète. This reconnus (found, acknowledged) is of a sinister import. For the question is, Found by whom? Of course not only by the courts, for finding a man guilty by process of law is in French convaincre. The reconnoitre, therefore, was used to include the police, or any one. So that we arrive at this striking fact: The despot may add an enormous punishment to a legal sentence, as in the cited case, or he may award it, or rather the minister of police under him may do it, without trial, upon mere police information. Two hundred years ago, the English declared executive transportation beyond the seas, or deportation, to be an unwarranted grievance; and here we have it again, no doubt in imitation of the Roman imperial times (the saddest in all history), in the middle of the nineteenth century.

inflicted—no arbitrary injudicious pardoning, which is a direct interference with the government of law.

The subject of pardoning is so important, especially in our country, that I have deemed it advisable to add a paper on pardoning, which the reader will find in the Appendix.

Perhaps there are no points so important in the penal trial in a free country, as the principle that no one shall be held to incriminate himself, that the indictment as well as the verdict must be definite and clear, and that no hearsay evidence be admitted. Certainly, none are more essential.

A great lawyer and excellent man, Sir Samuel Romilly, justly says, that if the ascertaining of truth and meting out of justice is the object of the trial, no possible objection can be taken against it on principle. But there is this difficulty, that if judges themselves question, they become deeply interested in the success of their own cross-examinations, they become biassed against the prisoner should he thwart them, or turn questions into ridicule. Romilly makes this remark after having actually seen this result in France, where it was always done (witness Mad. Lafarge's trial, or any French trial of importance), and certainly often with success. us observe the English some centuries back.

Or let

In the inquisitorial process, it is not only done, but the process depends upon it.

There are other dangers connected with it. An accused man cannot feel that perfect equanimity of mind which alone might secure his answers against suspicion. I know from personal experience how galling it is to see your most candid answers rewarded with suspicions and renewed questions, if the subject is such that you cannot

Sir Samuel Romilly's Memoirs, vol. i. page 315, 2d ed., London, 1840.

possibly at once clear up all doubts. It ought never to be forgotten that the accused person labours under considerable disadvantages, merely by the fact that he is accused. Bullying and oppressive judges were common in England, when the principle was not yet settled that no one shall be held to incriminate himself. The times of the Stuarts furnish us with many instances of altercations in the court, between the judge and the prisoner, and of judicial browbeating, to the detriment of all justice.

The trial of Elizabeth Grant, the aged and deaf Baptist woman, who had given a night's rest under her roof to a soldier of Monmouth's dispersed army, under Chief-Justice Jones, may serve as an instance.

It is among other reasons for this very fact of prisoners on trial being asked by the French judge about the fact at issue, his whereabouts at the time, his previous life, and a number of things which throw suspicion on the prisoner, although unconnected with the question at issue, that M. Béranger says, in a work of just repute: "We," that is the French, "have contented ourselves to place a magnificent frontispiece before the ruins of despotism; a deceiving monument, whose aspect seduces, but which makes one freeze with horror when entered. Under liberal appearances, with pompous words of juries, public debates, judicial independence, individual liberty, we are slowly led to the abuse of all these things, and the disregard of all rights; an iron rod is used with us, instead of the staff of justice."

"10

There are peculiar reasons against examining the

Philipps's State Trials, vol. ii. 214 et seq., and, indeed, in many parts of this work.

10

Béranger De la Justice Criminelle de France, Paris, 1818, page 2.