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ing from it, which are proved, are obliged to return a verdict of acquittal. On the contrary, even when the connecting circumstances are proceeded upon, the president can still often spare the delinquent the punishment to which he would be condemned upon the principal charge; and this constantly happens in cases where the principal fact is proved, and the punishment attached to it is deemed too severe ; and that the secondary parts are proved also, and are subjected to a lighter penalty. The jurors then seldom fail, through a feeling of indulgence natural to them, to acquit the prisoner of the principal charge, and only find him guilty of the secondary part of the accusation; so that the degree of punishment he is liable to, and often even his acquittal, may depend on the will of the president to proceed or not with connecting circumstances. Thus in order not to go beyond the supposition we have already made, we see that in this particular instance the president has almost the power of acquitting or condemning the prisoner, accordingly as he may confine himself to the act of accusation in which he is described as committing the theft, or as he may branch out upon the next consideration in which he may be viewed as the receiver of the stolen goods. All those who have had occasion to frequent the court of assize have witnessed the fact I speak of a thousand times, and they must be aware of the necessity of no longer entrusting the president with such extensive power.
It follows then from all these explanations, that besides the principal question, it is often indispensable to present to the jurors questions arising out of it, particularly such as are connected with circumstances considered by the law as aggravations of the crime. Can we then be surprised that they are sometimes plunged into inexplicable embarrassments, particularly when we consider that they are aware that the punishment will be unrelentingly dealt out according to the affirmative declarations which they may make; and that consequently they ought to endeavour to frame their answers in such a manner, as not to draw down upon the criminal a more rigorous chastisement than he may deserve ?
How far removed from all these difficulties is the guilty or not guilty of an English jury, pronounced always after two or three minutes of deliberation? Is it not possible to teach ours the same simplicity? The first step towards it would be, to grant the judges, as I have proposed above, the right of mitigating punishments; as the jurors would then have no motive for uncertain calculations, but would rest with confidence on the equity of the judges, as to the degree of punishment which ought to be inflicted upon an offender.
Nothing more would be necessary than to lay the whole question before the jurors, as is done in England, and to endeavour to frame it in such a manner, that they would be able to answer in one word, yes or no; insomuch as it should include
branch of the trial, that is to say, the leading question, the questions branching out of it, and all the aggravating circumstances.
This is the arraignment that I would propose : Is the prisoner guilty; or is he guilty of, or accessary to a theft, or of an attempt at theft, with qualifications
This word qualification should include in its acceptation all the circumstances considered as aggravations in the sight of the law; but in case of the act being liable to a particular kind of punishment, as for instance, a forgery, it should be explained in concise terms, and the question should be put in these words:
Is the prisoner guilty of, or an accomplice in, a theft, or an attempt at theft, by means of forgery?
It would remain afterwards for the judge to explain to the jurors what the law understands by connivance, qualification, forgery, &c.
The jurors would then have to answer to the question in either the one or the other of these two ways; Yes, the prisoner is guilty ; or, No, the prisoner is not guilty.
In a case where they believe that the theft has been committed, but unaccompanied by any aggravating circumstance, they should reply; Yes, the accused is guilty of theft, but without any peculiar atrocity.
The process resolves itself into this. The clerk explains to the jury the crime of which the prisoner stands accused; the attorney, general sets forth in a few words the circumstances connected with the prosecution, comprehending the different articles contained in the indictment, which for the greatest part of the time is unattended to by the jurors. He would next have to examine the witnesses on the behalf of the prosecution; the solicitor for the prisoner, in his turn, examines the witnesses for the defendant ; and the witnesses for each party are cross-examined by the advocates on both sides, who must be expressly forbidden, in summing up the evidence, to draw any inference, either in favor of, or against the prisoner. This duty ought to devolve upon the presi dent when he makes his summary, which he ought to do immediately after the examination of the last witness. The jurors should then assemble round their foreman, and come to a decision, unless they should particularly demand leave to retire to deliberate upon their verdict; which ought to go by majority, in the proportion of eight to four.
Little more remains for me to remark, than to explain a case where the difficulty consists not only in the matter of fact, but also in the point of law; that is to say, whether or not the act imputed
to the prisoner, constitute a crime cognisable in law. A case of this kind is often attended with circumstances of peculiar aggravation; particularly in some instances of forgery where the prisoner may confess the fact on which the prosecution may be founded, but maintains, and not without the appearance of reason, that the fact itself is not mentioned in any of the cases of fraud provided against by the code; as, for instance, when a man is accused of putting an imaginary signature to a bill, and passing it off for that of a living person; or of making an agreement with a notary, and afterwards denying his signature.
At present these questions are discussed before the jurors, between the attorney-general and the advocate for the prisoner ; but if we were to suppress the pleadings, as I have proposed, the jurors would find themselves not only incapable of resolving the difficulties I speak of, but would scarcely know even that such difficulties exist. On the other side, if it be permitted to the advocates to explain points of law to the jurors, it is very certain that, under the pretext of doing so, they would take the lead in all cases, in order to have an opportunity of disputing on matters of fact; and thus by degrees all the advantages of the new system which I have been endeavouring to point out, would entirely vanish. We must seek out therefore, the means of obviating these inconveniences, and I believe they are to be found in the practice of England on these occasions. The jurors there are obliged, as I have shown, to decide upon points of law; but they are not obliged, as in France, to decide upon them absolutely. If, after some short observations which are addressed to the judge on the subject by the counsel for the prisoner, or after the explanations which the judge makes in his summary, the point of law appears to them
easy they return a general verdict, which embraces at once the question both of the law and the fact; if, on the contrary, the solution of the question appears to them to be beyond their ability, they content themselves with returning a special verdict in the form that I have mentioned before ; that is to say, they declare the prisoner guilty or not guilty, according as the judge may find the fact which is imputed to him criminal or not, according to the definition of the law.
Cannot we in some degree follow the same course, and, in order to spare our jurors the arrangement, always difficult, of this special verdict, consider all their declarations as special ; that is to say, as given solely under the supposition that the court will judge whether the fact attributed to the prisoner constitute the crime specified by the law; and that, consequently, it will be permitted the advocate for the prisoner and the attorney-general, after the declaration of the jury, to debate the point of law before the court ?
VOL. XVI.1 Pam. NO. XXXI.
to decide upon,
A double advantage would result from this mode of proceeding : first, that we should no longer be afraid of confusing the discussion of the fact with the discussion of the point of law; and, in the second place, that we should have no trouble, excepting upon those points of law which were really serious, and upon which there would soon be a certain jurisprudence which would supply all the imperfections and omissions of the code. We must remember that in these cases there would be no intention of submitting to the decision of the courts points which, from particular circumstances, the law expressly submits to the decision of the jurors ; such as determining whether a work ought or ought not to be considered a libel; these questions would continue to be debated before them between the attorney-general and the advocate for the prisoner.
This manner of deciding points of law may appear at present incompatible with the existence of the chamber of accusation; in fact, there would be something contrary to the hierarchy and harmony
of the powers in bringing a point of law, which had already been before the chamber of accusation of the royal court, composed always of five counsellors, again into a court of assizes, composed of five counsellors, or oftener still, in the first instance, of only one counsellor and four judges. But we must recollect that I only propose this mode of proceeding in a system, where the jury of accusation shouldbe re-established, and where consequently there would appear nothing disgraceful in submitting to the revision of the judges a point of law which had only been decided by unpretending citizens who were strangers to the study of the criminal law.
In order to terminate here all that concerns the courts of assizes, I will add that it appears useless to me that they should be composed of five judges; as they are in the present day, I should think one would be sufficient; as it is in England, the judges who appear to assist him, without doubt, on account of the dignity of the court, having nothing really to do, know not how to employ their time, and seem burdened with the weight of it. They read, they yawn, they nestle about in their seats, and are no way fit, in this state of weakness and impatience, to fulfil the object that is proposed for their co-operation. I do not think that the power of mitigating punishment, which I would have granted to the court of assizes, ought to be considered a particular reason for preserving them in the state in which they are ; on the contrary, I believe that the responsibility which would rest upon the president, if he were alone, would offer a more solid guarantee for his wisdom and moderation in the exercise of the new power which would be confided to him, than any that would result from the union of the four judges who might be continued with him in office.
The most scrupulous attention, however, in this case, would be necessary as to the choice of presidents ; and we must no longer indiscriminately confide to all the members of the royal court, functions which require a presence of mind, a firmness of character, and readiness of elocution, which are rarely to be met with in one person. We must either choose from each court a certain number of magistrates who shall be specially employed in presiding at the assizes of the district, or we must institute a body of private magistrates which shall be composed of about forty members, to whom shall be entrusted the presidency of all the assizes throughout the kingdom,
I must now say a few words respecting the formation of the jury,
What is the trial by jury? it is trial by the country. The English term the jurors the country of the prisoner; which country you are.
But in what description of jurors is it that a prisoner can behold the representatives of his country? It can only be in a determinate number of jurors taken at random, as Blackstone
from among those whom the law shall have declared capable of executing the functions of jurors. If then the choice of jurors summoned to the assizes be left to the discretion of any authority whatsoever, whether administrative, or judicial ; or if this authority have any indirect means of influence, either by removal or reduction, the prisoner cannot in such persons see his country; that is, the fortuitous union of all the opinions which may prevail in it; he sees in them only judges set over him by some man in whose power, political opinions or private feelings, they may have a particular interest. Perpetual and immoveable magistrates would be better than such as these.
These principles appear to me so evident that I do not think it possible to depart from them without entirely altering the nature of the institution of trial by jury; and if the government still feel some hesitation in adopting them, it is from being misled by the fear of losing one of the instruments which has been considered most necessary for the support of its authority. Let government, however, be assured, that it will neither be less powerful, nor less respected, for having freely relinquished all influence over the administration of justice in criminal cases.
If it is indispensable that those who form the general list of jurors of their department should likewise be placed by lot on the list at the sessions and assizes, and that each should be so in turn ; it is evident the general lists must be so formed, that all those, or at least a great majority of those inserted in them, will be fully capable of feeling the importance and nature of the charge with which they are entrusted. But how is the efficiency of the persons placed on the
general lists to be ascertained? who is to judge of the integrity and infor.