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 biased 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 is always done, (witness Mad. Lafarge's trial, or any French trial of importance,) and certainly often with success. Or let us observe English prosecutions some centuries back.

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

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 possibly at once clear up all doubts. It ought never to be forgotten that the accused person labors under considerable disadvantages, merely from 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 Gaunt, 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, and was convicted of treason on the sole testimony of

2

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

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

the wretch whom she sheltered that she had knowledge of his being a rebel, 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 Mr. 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." "

I

There are peculiar reasons against examining the prisoner in public trials, and many peculiar to the secret trial. Although it cannot be denied, that often the questioning of the prisoner may shorten the trial and lead to condign conviction, which otherwise may not be the result, it is nevertheless right that most, perhaps all our state constitutions have adopted this principle. It is just; it is dignified; it is fair. The government prosecutes; then let it prove what it charges. So soon as this principle is discarded, we fall into the dire error of throwing the burden of proving innocence wholly or partially on the prisoner; while, on the contrary, all the burden ought to lie on the government, with all its power, to prove the charged facts. Proving an offence and fastening it on the offender, is one important point in the penal trial; but the method how it is done is of equal importance. The Turkish cadi acknowledges the first point only; yet what I have stated is not only true with reference to the jural society, it is even true in the family and the school.

It is an interesting fact for the political philosopher that,

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

while the Anglican race thus insists on the principle of nonself-incrimination, the whole Chinese code for that people under a systematic mandarinism is pervaded even by the principle of self-accusation for all, but especially for the mandarins. The principle that on government lies the burden of proving the guilt, leads consistently to the other principle, that the verdict must be definite and absolute. Hence these two important facts: The verdict must be guilty or not guilty, and no absolutio ab instantia, as it is called in some countries of the European continent; that is to say, no verdict or decision which says, According to the present trial we cannot find you guilty, but there is strong suspicion, and we may take you up another time; nor any "not proven," as the Scottish trial admits of, ought to be permitted. "Not proven," does not indeed allow a second trial, but it expresses: You are free, although we have very strong suspicion. Secondly, the main principle leads to the fact that no man ought to be tried twice for the same offence. This is logical, and is necessary for the security of the individual. A person might otherwise be harassed by the government until ruined. Repeated trials for charges which the government knows very well to be unfounded, are a common means resorted to by despotic executives. Frequently such procedures have led the persecuted individual to compound with government rather than lose all his substance.

The Anglican race, therefore, justly makes it an elementary principle of its constitutional law, that "no man shall be tried twice for the same offence."

I have said that a fair trial for freemen requires that the preparatory steps for the trial be as little vexatious as possible. They must also acknowledge the principle of non-incrimination. This is disregarded on the whole of the European continent. The free range of police power, the mean tricks resorted to by the "instructing" judge or officer, before the trial, in order to

The reader will find in Appendix III. a paper on the subject of some continental trials, and the admission of half and quarter proof and proportional punishment.

1

bring the prisoner to confession, are almost inconceivable,' and they are the worse, because applied before the trial, when the prisoner is not surrounded by those protections which the trial itself grants. With reference to this point, and in order to modify what I have stated regarding Greek penal trials, I wish to mention the interesting fact that "the prosecutor, in Athens, who failed to make good his charge, incurred certain penalties, unless he obtained at least one-fifth of the votes in his favor. In public suits, he forfeited one thousand drachmæ to the state, and could never again institute a similar suit. The same punishment was incurred if he declined to proceed with the case. In private suits, he paid the defendant one-sixth of the amount of the disputed property, as a compensation for the inconvenience he had suffered in person or character." 2

Sir Samuel Romilly had the intention of proposing, in a similar spirit, a bill by which an acquitted prisoner, having been prosecuted for felony, should be compensated by the county, at the discretion of the court, for loss of time and the many evils endured. Indeed, he thought that far more ought to be done.3 Leave was given to bring in the compensation bill, but it was afterwards withdrawn. It is evident that the great difficulty would lie in the fact that the discretion of the judge would establish at once a distinction between the verdicts, similar to that produced by the Scottish "not guilty" and "not proven." To compensate, however, all acquitted persons would be very mischievous, if we consider how many persons are acquitted who nevertheless are guilty. Indeed, it might well be asked whether the fear of burdening the county with

This may be amply seen in the reports on French trials, and, among other works, in Feuerbach's Collection of German Criminal Trials.

* See K. F. Hermann, Gr. Staatsalterth.,

144.

3 Memoirs of the Life of Sir Samuel Romilly, 2d ed., London, 1840, vol. ii. p. 235. Strangely enough, there is an English law, 25 George II., ch. 36, according to which prosecutors are to have the expenses of their prosecution reimbursed, and a compensation afforded them for their trouble and loss of time. This is evidently to induce people freely to prosecute; but no guarantee is given on the other hand against undue prosecution, and a compensation for the trouble and loss of time of the acquitted person.

the payment of the compensation would not, in some cases, induce the jury to find more easily a verdict of guilty.

The professional reader may think that I have not sufficiently dwelt upon some essential points of a sound penal trial, for instance, on publicity, or the independence of counsel. He will find, however, that these subjects are treated of in other parts of this work, to which it was necessary to refer them.