Oldalképek
PDF
ePub

which he attended, for the personal kindness which he received and the ready assistance which they were forward to give to his research ;--and he acquaints us that Messrs. Scarlett and Grey were so good as to louk over his work before it went to the press, and that Mr. Scarlett, in particular, had withdrawn a short time from his numerous avocations, to correct the errors into which he (M. Cottu) had fallen; and even to supply him with some notes of his own, on the spirit of the British Constitution.'—p. viii.

This must not be taken au pied de la lettre — there are perhaps no very important errors in M. Cotiu's report, but there are undoubtedly several inaccuracies into which it is scarcely possible that Mr. Scarlett should have fallen in a work of his own, though it is probable that they either may have escaped him in reading that of another written in a foreign language, or have been overlooked and forgiven, as it were, as the pauca macule which were hardly worth correcting in the great mass of accurate facts which M. Cottu had collected. To the original contribution of Mr. Scarlett to this work we shall advert by and bye.

It certainly proves great kindness and not less attention on the part of M. Cottu's English friends, that he has made only such mistakes. He intimates indeed his English quotations prove) that he is utterly unacquainted with our language; but Mr. Scarlett, junior, had the goodness to assist him as interpreter; and he tells us he found that most of the gentlemen on the circuit spoke French:-yet even with these aids, M. Cottu must be a very acute and able inan to have made his way, as he has done, through the chaos of great sessions and petty sessions, arrays and pleadings, arraignment and challenges, impannellings, and verdicis general and special; and to have given so clear, and on the whole so correct a summary both of the criminal and nisi prius practice of the assizes.

We do not intend to follow him through his circuit-all that he sees with wonder is familiar to us, and from what he found it most important to his purpose to record, our readers would derive no new information. Still less are we inclined to pick out, as topics of reproach or ridicule, the errors, whether in fact or in taste, (and there are some of both) into which he has fallen. His intentions are honest; his principles are good; many of his general observations will be found original and interesting; and some comparative views which he takes of the administration of the law in England and France are worth the attention of both nations.

The following passage relative to the power of the judges to respite convicted criminals and the authority which their recommendation has in determining the too numerous questions of life and death which arise, exhibits towards its close one of those errors of taste to which we have alluded, and which we should rather have expected from a pupil of one of the Lycées than from a person of M. Cottu's age, profession, and general good sense.

errors

• Thus the Judges, by this system, find themselves invested with a kind of discretionary power of life and death over the great majority of criminals capitally convicted by the jury. I am well aware that this power is confined by practice and custom within linnits tolerably narrow, but even those limits, so narrowed, would still be of alarming extent, if the authority were entrusted to magistrates less indulgent and less respectable. if we reflect that there are every year a thousand or twelve hundred capital convictions in England, and that the judges have the power of deciding at their pleasure the fate of all those unhappy persons, that they can suspend death over those twelve hundred heads, and at last infict it when they please, it will be confessed that there seems in this power something too exorbitant to be ever extended to any man, were it even Socrates himself.'*—p. 72.

Absurd as this allusion is, the observations themselves are just, and, with all our confidence in the indulgence and respectability' of our judges, we cannot but feel that this power is too exorbitant.' The judges themselves, we believe, would gladly get rid of so painful an office—it is one which does not properly belong to them, and it is referring to the feelings, the temper, nay, the infirmities of man, the most important duty of the law itself. We remember to have heard one judge, whose conscience led him to a more severe exercise of his duty than others, called a hanging judge, while others, whose teniper was more indalgent, were sneered at as imbecile and pusillanimous, to the great and unjust scandal both of the judges and of justice.

The power of respite can never be taken away from the judges, and their recommendation must always continue to be of the greatest weight with the crown; but it is impossible to deny that the cases in which this extraordinary intervention is required, ought to be narrowed as much as possible, and that the judges should not be obliged to make a mere mockery of the highest function of their office-the gravest and highest transaction of human society, by passing a score or two of sentences of death, none of which—as they and the culprits and the audience too weli know—are ever likely to be executed.—Hear how a scene of this nature strikes M. Cottu. muted for inferior punishments, therefore the greater number of the convicts know, to a moral certainty, according to their respective cases, the ultimate indulgence which they are to receive. Nevertheless the judge (obliged on every case to pronounce the dreadful sentence of the law) covers bis head with a kind of black coif, exhibits on his countenance the expression of solemn and dignified regret, and addresses the prisoners in a severe and melancholy recapitulation of their offences, and laments the necessity in which society at large feels itself placed of securing itself from a continuance of their crimes, and concludes with pronouncing the fatal sentence,-but this mournful ceremony, this touching address, this dreadful sentence, so far from producing on the prisoners the terrible effect which one would expect, makes little or no impression on persons who are beforehand prepared to consider it all as an empty show, and in their audacious security to brave the very judge in the midst of his sentence.'-p. 112.

• Sentence is not passed on each oflender at the conclusion of his trial, but at the end of the assizes all the convicts are placed at the bar together-the moment of passing sentence creates a painful and impressive feeling very different from the coolness in which all the parties assist in all the previous stages of the trial. I have already said that the greater number of capital sentences are subsequently com

Buonaparte brought Themistocles on board the Bellerophon, in the same good taste in which M. Coltu brings Socrates into the castle at York.

muted

The audacious security is perhaps a little exaggerated—but there can be no doubt that it is sometimes visible, and—when joined with the benumbing frequency of these occasions, and the pride which most of these unhappy persons place in receiving their sentences with coolness-produces a good deal of that apparent apathy which had so much effect on M. Cottu.

The following contrast between the interest of a French and the calmness of an English trial is well drawn.

• In England the criminal himself plays little or no part in the trialhe might, without much inconvenience to the proceeding, be tried in effigy. No great public interest seems to be excited either by the appearance of the prisoner, who in general is placed with his back to the spectators, or by the successive detail of the proofs, nor by any vehement defence on the part of the prisoner, nor by any efforts on that of the judge to trace the transaction and elicit the truth. There is no struggle between the prosecutor and the prisoner, and the latter seldom appears in any other character than that of a man who looks on, almost with indifference, while his lawyer and his adversaries are disputing for his life. Neither the sound of his voice, growing more hesitating and feebler as the proofs seems to accumulate against him-nor the gradually increasing paleness of his countenance-nor the sweat which starts from his forehead-nor, finally, the overwhelming silence of detected and convicted guilt-none of these disturb the feelings of the spectators nor excite in their minds those vicissitudes of pity, horror, vengeance, and other violent sensations which a French trial is sure to create. In Eng. land all is calm and cold-lawyers, judges, the public, nay, the prisoner himself! who holds little or no communication with even his counsel, and seems hardly to be aware of the peril in which he stands or of the strength of the case that is made out against him.'-p. 111.

Here again M. Cottu is guilty of a slight exaggeration: it is true that, on the whole, the more staid character of our nation, the merciful rule of our law which prevents a prisoner being questioned,

and

and above all, the small number of sentences which are carried into effect, make the interest which is shewed on a trial for life and death-or for what is called life and death-much less lively than with our more enthusiastic neighbours, where the accused is. frequently convicted out of his own mouth; where the judges exbibit all their arts and all their eloquence to entreat or persuade, or entrap the prisoner into confessions, or contradictions, and where the conviction, if obtained, is generally inflicted.

But whenever an occasion of great moment, from the magnitude of the offence, or of great interest from the obscurity of the case, or of great curiosity from some personal circumstances, occurs, the feelings exhibited in an English court of justice are, not perhaps as quick as in a French auditory, but they are, at least, as solemn and as deep; and we just mention this because, we think, that M. Cottu has been induced to draw general inferences, some favourable and some unfavourable, from the ordinary routine of an uniuteresting circuit, which certainly are not true of the administration of justice at large.

One of these particulars of difference between the English and French criminal jurisprudence, which we have just referred to, M. Cottu observes upon, but not, we think, with that weight and attention which it merits; we mean the interrogating, both on the first accusation, and finally, at the trial, the prisoner himself. M. Cottu rather seems (p. 99. and more decidedly p. 267.) to reprobate this practice, in common indeed with most other parts of the criminal process of France,) as showing a too cruel anxiety to convict the culprit; and he even compares it to the torture. Notwithstanding the partiality which we naturally feel for our own law, and the praise with which the maxim that no one is bound to criminate bimself' has been always accompanied, we doubt whether France ought, in wisdom or justice or even in mercy, to abrogate this practice. It seems to be one of the first and most natural principles of human justice, that when you have proofs enough to authorize you to imprison a citizen, you should hear what he has to say in his defence. That his defence may lead to his conviction is true, but surely so it ought if he be guilty; no man speaks falsely against himself, and no one but the individual cau truly relate all the circumstances which justice bas a right to know, or, at least, a right to inquire into. In no case can it be supposed that a prisoner is to be forced to answer ; and even in France prisoners frequently refuse to answer at all, or persist in some short formulary of denial which comes to the same purpose. Prisoners, if they were all guilty and all prudent, would soon learn the advantage of holding their tongues, but if the innocent or the indiscreet choose to speak, what principle of justice or equity forbids us to examine them

No

No human crime can be committed but at a particular time and in a particular place; and, generally speaking, no one but the guilty person can have been in that place at that time. If then there be evideuce enough to justify the committal of a suspected person to prison, to the danger of liis morals and the ruin of his character, why should it not authorise the asking of him, “Where were you on such a day? Why should he not be bound to explain where and how he passed the suspicious hour? Truth and innocence never could suffer by the consequences of such an interrogatory, while guilt could hardly ever escape but by silence, and even silence would be rendered a less effectual refuge. England is the only country on earth whose laws forbid such examination; and this only proves additionally, M. Cottu elsewhere remarks, that though the English Statute Book seems written in letters of blood, and though the whole system of jurisprudence tends to make almost every crime capital, there seems to be amongst judges, juries, prosecutors, lawyers, the forms of the procedure, the rules of evidence, and the circumnstances of the trial, a humane and general conspiracy to defeat the law and acquit the prisoner. We look with so much dread to any alteration which is not made absolutely necessary by some great and urgent practical evil, that we are far from wishing to see the practice of England changed, but we are pretty contident that it would not be wise to introduce our principle into the law of France, which in all times has followed what appears to us, ou abstract principles, the more rational course.

M. Cottu observes too, in connexion with this part of the subject, the strange extremities to which this general solicitude to acquit the guilty is pushed; he notices the difficulty which a prisoner finds iu being permitted to plead guilty. Overcome with the consciousness of his crime, which is perhaps flagrant, --of which perhaps he bears the very marks about his person—the horror of which is in his countenance and the remorse for which is cutting bis hearthe desires to relieve his conscience by pleading guilty ;-10! the jailor, the crier, the sheriff, the jury, the counsel, the bystanders, nay, the judge himself, all oppose themselves to the words of come panction and of truth ;--the poor wretch is persuaded, nay forced, into a crime which he abhors, and after a trial (which, under such circumstances, is a mere mockery) he is sent into the other world with a falsehood in his mouth, a falsehood prompted by his judge ! This surely is lamentable; this surely is not mercy : True and rational mercy should conceal its feelings on such an occasion, and not interfere between a dying man and his conscience.

M. Cottu gives a detail clear and accurate enough, though rather superficial, of our courts and their proceedings--he makes few mistakes of any importance, either in principle or practice, as to

those

« ElőzőTovább »