have retained their national sterling qualities ("den guten Geist der Deutschen"). But the Germans complain, that in trials where they are the parties, and jurymen of a different nationality are to decide, an unjust spirit of partisanship comes into operation.

Following up the general principle that the Jury Court is influenced by national idiosyncrasies, the professor points out the error of those writers who attempt to prescribe a model Jury to serve as a pattern for all nations equally. The disposition of the people, the state of society and civilization, and the course of politics, are all to be given effect to, when the establishment or improvement of the Jury Court in a country is in question. At the same time it cannot be denied that the leading idea in all countries is the same. But this does not consist, the Author warns us, merely in communicating to the people a share in the administration of justice. This was equally the basis of the Roman institution of judices, and of the Sheriff Courts of feudal times.

The professor urges that in importing into a country the institution of a Jury Court, regard must be had, not only to the different conditions referred to above, but also to the existing criminal system of that country. They must be reciprocally modified, so as to produce one harmonious whole. If the legal code outstep the limits of the popular comprehension, by drawing fine distinctions, or indulging in legal subtilities, or if the severity of the punishments are out of all proportion to the offences, a Jury Court will be of very little use. It will be found also that the soundness of the verdicts will depend most vitally on the simplicity of process. Everything which has a tendency to mislead the Jury must be carefully avoided. Measures must be taken, to secure a fair and exhaustive statement of the arguments on either side, perfect freedom in the defence, and impartiality in the Court. As an instance of the folly of not observing this general principle, Dr. Mittermaier cites the case of some of the German States, who, when in 1848 adopting Trial by Jury, retained their old system of secret written procedure in criminal causes, and merely superadded a "patchwork of Jury Court regulations."

Reviewing in detail the criminal procedure of those countries where trial by Jury is established, Professor Mittermaier takes as the two great representative systems which serve more or less as a model for all the others, the French, and the English or

Scotch. The former, though it has been followed by all the European continental nations, deservedly incurs the severe censure of our author. He quotes with approbation the words of M. Laboulaye a recent French writer, when referring to the criminal laws of France: "L'esprit de ces lois est encore le vieil esprit d' inquisition, elles cherchent des coupables plus que des innocents." To account for this inquisitorial character of criminal procedure in France, we must keep in view the early history of Jury Trial in that country. It was introduced during the storms of the Great Revolution, and at once assumed in the eyes of both rulers and people, a political character quite at variance with its true nature. It was used chiefly in the trial of political offenders, to obtain convictions against whom, the government, for its own security, was constrained to use every means in its power. To this cause we must attribute many features of the French Jury Court, to which Dr. Mittermaier takes exception. There is no doubt that it gave rise to the pouvoir discrétionnaire conferred on the Judge, of using whatever means he deems serviceable to the discovery of the truth; and the Code charges "his honour and conscience" to that effect. The président abuses this right by examining the prisoner in court, and in the course of a long seriesof artfully conceived questions, eliciting proofs of his guilt from his confused and often contradictory answers, or even from his very looks and gestures. To show that we are not exaggerating, we may quote a single sentence taken from the Report of the Commissioners appointed in 1808 to frame the French Criminal Code, and given by Dr. Mittermaier in a foot-note. The Commission expatiating on the advantages of this cross-questioning of the prisoner by the Judge, does not hesitate to say: "Rien n'est muet, rien n'est inutile dans le débat; la contenance, le sang froid, ou le trouble, les variations, l'altération des traits, les impressions diverses forment un corps d'indices qui soulèvent plus ou moins le voile dont la vérité est enveloppée."

But there soon arose on the part of juries a spirit of opposition to the excessive anxiety of the Crown officers to obtain convic

What would the German Professor say to Governor Eyre's method of judging of the state of Jamaica and the reports of discontented looking men riding about the country? We suspect if the annals of our arrests were enquired into, it would be found that looks and gestures had often been what first directed the attention of the police to the prisoner.

tions. They declined to be used as a mere political tool, and to be intimidated into a passive submission to the commands of a corrupt government. They claimed the right of thinking for themselves, and of freely exercising the powers with which the law had invested them, Hence arose that want of confidence in the persons composing the jury, which, as Dr Mittermaier points out, is a fundamental characteristic of French criminal procedure. This feeling of mistrust lies at the root of the various provisions of the Code which tend to limit the powers of the jury, and render them more dependent on the court. It is the key to the meaning of the French rule by which the jury, instead of returning a general verdict on the whole evidence, must confine itself to answering certain questions on matters of fact put to them by the judge, who, in accordance with these, himself pronounces the verdict. At the same time, in order to guide the jury in their replies, there is prescribed in the Code (Art. 342) a set of instructions, to be read over to the jury in every case before they retire, and of which a copy in large type is to be affixed to the wall of their retiring room. From this directory we learn that the law. does not require the jury to hold a fact as proved because attested by a certain number of witnesses, or to regard a proof as insufficient if not established by so many witnesses, documents, or corroborative circumstances. No-the law simply asks them the question, "Avez-vous une intime conviction?" and by this question are prescribed the limits of their duties. It is on inward conviction, and not by maturely weighing and considering every fact in the evidence, that a French jury is to arrive at a decision. It is an affair of the feelings, not of the understanding. Hence, from the commencement of the case, the aim of the Prosecutor is to excite in the minds of the jury a conviction of the prisoner's guilt, while the counsel of the accused uses all his powers of persuasion to enlist their feelings on the side of his client. thus account for the passionate vehemence and melo-dramatic declamation which form so conspicuous a part of the proceedings at a French criminal trial.

We can

Our author condemns in strong terms the French system of the judge putting to the jury questions on the mere facts, and not allowing them to return a general verdict. The supporters of this system appeal to the example of England, where they say it is a maxim that the jury is judge of the facts only, not of the law. Dr Mittermaier contends, that however applicable this may

have been to juries in their embryo state, when they partook more of the nature of witnesses summoned to give from their private knowledge information of some crime which had been committed, yet it no longer holds good in England. The very circumstance that a jury may by their verdict find the prisoner not guilty of the crime charged, but guilty of some other modified one (e.g., not guilty of murder, but guilty of manslaughter), proves according to onr author, that the jury are not only entitled, but bound, in a certain measure to consider the law of the case as well as the facts. The judge, no doubt, is supposed to furnish in his charge to the jury information as to what facts are sufficient to constitute in law the crime libelled; but the jury may return a verdict at variance with the directions so given. Such a verdict, in Scotland at least, could not be set aside.

In several other points besides those referred to above, our author takes exception to the French system. He strongly reprobates the mixing up of the results of the preliminary proceedings with those of the trial itself. In France this occurs, owing to the custom of the Crown Prosecutor, when a witness answers a question at the trial otherwise than he did at his precognition, to read out the latter in court, if it is more prejudicial to the prisoner than the other; and if a witness is prevented from appearing in court to give his evidence, or if he is dead, his precognition taken before the magistrate is read to the jury. This of course is of advantage to the side of the prosecution, as it precludes the cross-examination for the defender. Still more unfavourable to the prisoner is the power conferred on the judge (Code, Art. 269) of calling, in the course of the trial, for the production of any witnesses whom he may think able to throw light on the case. This right is the more dangerous, since it is enacted that "witnesses thus called shall not be put upon oath, and their declarations shall be regarded merely as information."

But as if the enactments of the Code were not sufficient to attain the ends of justice, there exists a rule in the Jury Court unauthorised save by the usage of practice. The Court, if not satisfied with the finding, may order the jury back to reconsider their verdict. They are supposed to do so on the ground that the verdict is incomplete, ambiguous, or contrary to evidence. Since, however, they are not required to specify on which of these grounds they object to the finding of the jury, it is evident to what abuses such a proceeding may lead, and how juries, by re

peated remits, may be overawed into giving a decision such as is desired by the Court. Results show us that juries have not unfrequently been sent back to reconsider a perfectly regular verdict. In such a case, there always arises a contention as to how much the second finding can alter the first, or prejudice the rights already acquired by the prisoner under the first verdict.

In no country has Jury Trial had to struggle with so many difficulties as in Germany. It was introduced, as in France, at an unfortunate time-when the country was disturbed by the revolutions of 1848. It thus acquired the character of a political institution, which, as we have seen, proved so destructive of its efficiency in France. This notion was unfortunately assisted by its being confined, in some of the German States, to trials for political and press offences. In the then excited state of political parties, it was to be expected that the convictions would depend more on the politics of the jurymen than on the guilt of the prisoner. But the institution of a Jury Court was unpopular on other grounds. Dr. Mittermaier tells us that statesmen and rulers opposed it, because it was a democratic institution, and would tend to undermine the principle of monarchy. Scientific men discouraged it because they thought the interests of science would suffer, from giving to unlearned citizens a share in the adminis tration of the law. Lastly, among practical jurists, there were many enemies to the establishment of a Jury Court. They esteemed it an insult to the dignity of the judges, and an encroachment on the part of the citizens, who wished to take the deciding of the most important questions out of the hands of men who, by a long course of legal study and practice, were much better fit to deal with them.

Dr. Mittermaier in tracing the history of Jury Courts in Germany since 1848, divides it into three periods-which will be found to correspond a good deal with the course of politics in that country. The first period, extending from 1848 to 1852, was one of great national excitement. Owing to the state of the country in the latter half of 1849, numerous political trials took place. In these many persons who had been prominent leaders in the revolutions of 1848, played the part of denouncers and informers, wishing to atone for their past offences by increased zeal for the cause of their new masters. The worthy citizens, who acted as jurymen, either from the small amount of confidence. they placed in the testimony of these witnesses, or from finding