your hand," and after that, he addresses himself to the jurors in these words: "You of the jury, look upon the prisoner and hearken to his cause. He stands indicted, &c. (reading all the indictment); upon this indictment he has lately been arraigned, and thereunto has pleaded not guilty; and for his trial has put himself upon God and his country, which country you are. Your charge is to enquire whether he be guilty of this, &c. as he stands indicted, or not guilty."

The counsel for the prosecutor then givesa succinct account of the facts connected with the cause, which is othing more than a more detailed and circumstantial repetition of the indictment. No sort of invective, however, is permitted to be uttered against the prisoner, or any reflection cast upon his guilt; it is on facts alone that the counsel is allowed to speak, and he is forbidden any attempt to bias the sentiments which he may be desirous of inspiring. The counsel finishes his detail by saying that he will proceed to calling witnesses, in support of the facts which he has imputed to the prisoner. This exordium rarely lasts longer than a quarter of an hour. When it is at an end the counsel himself calls the first witness, and examines him.

Each witness, before he makes his deposition, takes the following oath, which is tendered to him by the crier :

"The evidence which you shall give to the court and jury, sworn between our sovereign lord the king and the prisoner at the bar, shall be the truth, the whole truth, and nothing but the truth. So help you God !"

The prosecutor has generally two, and sometimes three counsel; the oldest opens the case, and then all three alternately interrogate the witnesses.

After the examination of each witness by the counsel for the prosecutor, the counsel for the prisoner, when he has any, (which is generally the case in the country, though very rarely so in London,) interrogates him in his turn, either to make him fall into contradictions which may weaken his testimony, or to establish facts which may be favorable to the accused. This is called cross examination, and the judge takes upon himself to exercise it for the interest of the prisoner, when he has not the means of procuring a counsel for himself.

During these debates the judge speaks only seldom, and writes a brief summary of all the questions put to the witnesses, with their answers, as well on the cross examination as on the first examination. Each witness gives his testimony deliberately, and stops at the end of every sentence, in order to give the judge time to take notes respecting it: sometimes the judge, also, puts questions to him; but they are generally more calculated to elucidate what

1

has been already said, than to establish any new facts against the accused.

At the end of each deposition the accused is exhorted to put any questions to the witness which he may wish.

The constables and surgeons make personal attestation of such facts as the commissioners of the police and the officers of health would be allowed in France to substantiate by written accounts, and whatever may have been seized belonging to the accused is laid before the jury by those to whom the magistrate has entrusted

the care of it.

The counsel for the prisoner afterwards calls the witnesses who are to appear on his behalf, and the bailiff makes them take the same oath as has been tendered to the witnesses for the prosecu tion. These witnesses are likewise cross-examined by the counsel for the plaintiff.

When all the examinations and cross-examinations are over, no counsel has a right to draw any inferences, either for or against the delinquent, from the facts which have been adduced; the jury are left in this respect to their own natural penetration, and to whatever impression the different testimonies may have left upon their minds. We do not hear the counsel for the prosecutor describing the criminal as a monster who ought to be rooted from the earth, or comparing him with all the most enormous villains that have ever astonished the world by their crimes. Neither do we see the counsel for the prisoner offering a thousand absurd suppositions to the jury upon the manner in which the crime has been committed, lying to his own conscience, endeavouring to persuade the jurors to betray theirs, and threatening them with judgments from heaven, if they venture to do their duty. No one is allowed to alter the light of the evidence by showing it through the prism of his own opinion or fancy; it appears to the jury in all its purity, and simply as it was manifested in the course of the examinations. It remains with them alone to judge of it without the help. of any other influence.

The judge then recapitulates the facts to the jury, that is to say, he reads the notes to them which he has taken during the trial, without endeavouring to relieve their dryness by reflections more or less lofty, or more or less suited to the subject. Sometimes, when the case requires it, he makes remarks upon the depositions which he has heard; but in general he confines himself to exhibiting the substance of them to the jury in its simple nudity, and rests the effect of his statements, not upon the ornamental language in which he invests them, but on the importance of the facts which they contain, and on which the life or liberty of a fellow-citizen depends. Pam.

VOL. XVI.

NO. XXXI.

D

It is said in England, and understood in France, that the English judges are the defenders of the accused; this phrase, which we find in every one's mouth, even from the lowest of the people, and which proves to what a height the English nation carries its confidence in the equity, mildness, and humanity of its magistrates, this phrase, I repeat, however expressive it may be in itself, is yet far from conveying an idea of the protection extended by the judge to the accused-he treats him throughout the trial as an unfortunate person, and in that he is admirably seconded by all the court, as well by the audience, as by the barristers and jurors. Crimes, as I have already had occasion to remark, do not appear to inspire the same horror in England as in France. To judge by the indifference with which they are viewed, it should seem that the English consider them less as the result of naturally evil dispositions in the offender, than as the almost inevitable consequence of his necessities, which are in themselves the effect of accident, and of a faulty social organisation. They punish them, nevertheless, and often with a severity which may be deemed excessive; but they punish them, only because the public good requires that they should do so, and not in consequence of any indignation against the crime itself. They are, moreover, of opinion that it is not advisable to punish every crime, lest by so doing they should weaken the effect of example, by the too frequent exhibition of suffering. They therefore reserve all their severity for the delinquents against whom the greatest number of charges are brought, and suffer those to go unpunished whose guilt is not established on sufficient evidence. It is of little consequence to them that among the guilty some may be condemned and others acquitted; so much the worse for those against whom the proofs are but too evident; and so much the better for those in whose favor some slight doubts may be found to exist: they look upon the former as destined, by a sort of fatality, to serve as an example to the people, and to inspire in them a salutary terror of the vengeance of the law; and the latter they regard as sinners, whose punishment heaven has reserved for itself in another world. I am, however, far from pretending that each of the jurors entertains this mode of reasoning; for neither any of them, nor any of the English whom I have visited, have ever expressed such an opinion to positive terms; but they act as if they thought so, and the indifference which they evidently manifest, during the important depositions, the care that they take to weigh the description and nature of proofs, in all cases where guilt may appear the least doubtful, the liability that they find in themselves to forget all facts which may be brought to their memory in any

most

way not perfectly defensible, nay, to forget the very confession of the criminal himself, when it tends to make him appear guilty, if he afterwards have consented, at the solicitation of his counsel or the judge, to stand the chance of his trial; in short, to forget every thing which he may have acknowledged under the promise of pardon all these circumstances prove that they are animated by a sentiment similar to that which I have described. Hence persons laboring under accusation meet on all sides with nothing but looks of encouragement. Should they be innocent, the moment when they may regain their liberty is impatiently desired; should they be guilty they are still pitied, and, I may almost say, it is still hoped that they may be acquitted. So far from any one eagerly endeavouring with a sort of malignant joy to collect the proofs of the facts which ar imputed to them, every one on the contrary seems anxious to make some discovery which may be favorable to them. They are not only suffered to remain uninterrogated, but they are even prevented from speaking when they begin to to enter into details which might prove prejudicial to their interests; the officers, the barristers, a benevolent murmur throughout the court, the very judge himself, all warn them to keep silent, and not to supply arms against themselves. It seems as if the spectators, in a league against the rigor of those laws which society requires, against even justice itself, were all eagerly endeavouring to rescue a victim from its decrees.

As an example of this almost incredible clemency, I will relate what daily happens, with respect to the uttering of forged banknotes, and even the counterfeiting of them.

The law of England punishes with death the counterfeiting of bank-notes, and the uttering of the forgeries; but it only punishes with transportation those who are found in the possession of forged notes, with an intention of circulating them.

*

As, however, it often happens that these counterfeit notes are

In our courts we are accustomed to a practice which has something very revolting in it; we every day see those who preside over them in the cause of truth itself, tempt the guilty to confess their crimes, by promising them the indulgence of the court: the unfortunate wretches, seduced by such a tempting lure, suffer that information to escape them which it was essential to their safety to keep secret, and deceived afterwards in their expectation, they see themselves condemned to the gallies, or to solitary confinement: the only advantage that they derive from. their trust in the promises of the magistrate is that they are only condemned to the slighter degree of punishment affixed by the law; but the greatest part of them might, probably, if they had not confessed their fault, have been altogether acquitted, for want of evidence. This sort of snare is odious and cruel; but we must not, however, attribute it to the barbarity of our manners; it is only the result of that lively desire which exists in France to discover the truth, about which the English show so much indifference.

found in the hands of forgers, or of those who have circulated forged notes, there are generally two bills of indictment framed against the party; the first, accusing them of having made or uttered forged notes, and the second, of having them in their possession with the intention of uttering them. In this situation, when the accused is standing at the bar, in order to take his trial, the counsel for the bank asks the counsel for the prisoner if his client be willing to plead guilty on the second indictment, which only involves transportation; promising him that in that case the bank will relinquish the prosecution on the first, which is a capital crime. If the accused acquiesce in this proposition, he is immediately found guilty on the second indictment, on his own confession; and with regard to the first, the counsel for the bank informs the jury that he does not intend to bring forward his wit nesses, and they consequently return a verdict of not guilty, for want of evidence. Nor does this sort of transaction take place secretly, or in a corner, but, incredible as it may appear, in open court, in the face of the public, the jury, and the judge.

I witnessed a very remarkable instance of this kind at Durham. Among three prisoners accused of uttering forged bank notes, there was a woman who could not be persuaded, either by the solicitation of her own counsel, or of the counsel for the bank, or of the judge himself, to accept the alternative proposed to her in pleading guilty to the charge of having forged notes in her possession. She was, therefore, obliged to be tried, upon the count of uttering them; and that being proved, sentenced to death; but the punishment was nevertheless changed to that of fourteen years' transportation.

I will give yet another example of the exceeding clemency of the judges. A person of the name of Jacob Butler was brought up, at the last Lancaster assizes, under an indictment for theft: one of the most important witnesses was absent, which rendered the evidence incomplete; for no written depositions afe allowed, except in case of the death of the witness. The counsel for the prosecutor then endeavoured to establish those facts which he wished to have proved by his witness, on what had passed during the examination of the defendant before the justice of peace, which, he maintained, had amounted to a formal confession.

In this examination Butler acknowledged that he, along with two of his comrades, had met a man in the street, who had asked his way of them; that they offered to show him the place that he was going to; "that they took him down Hanover-street into an alley called Pipe Entry; that there his comrades had a struggle with the man; that William Heap got his pocket-book from him, after which they all ran off together. As we went along," conti