though perhaps a delay of a few hours would have remedied the defect is a superstitious adherence to a useful regulation. Again, the more heinous accusations are those as to which it is most difficult to obtain direct evidence ;-neither premeditated murder, nor robbery, nor arson, is often committed in the presence of third persons. The proof, therefore, is almost always circumstantial—that is to say, it consists of appearances which can be accounted for only, or most easily, by supposing the prisoner's guilt. The most obvious, and generally the most effectual, mode of ascertaining the truth or erroneousness of this supposition, is to examine the accused. If it be false, the clearness, consistency, and veracity of his answers will assist in establishing his innocence. If it be true, he must afford evidence as to his guilt by confession, or by silence, or by falsehood. But, in an English trial, not only is such examination forbidden, but the pri soner is allowed, indeed recommended, to leave his defence to his counsel, and to remain himself a mere passive spectator. Again, where several persons are suspected of having concurred in a crime, the admissions by one must often supply proof against the others. But the confession of a prisoner is not supported by his oath; though it be received against himself, therefore, it is not allowed to be evidence against any one else. It would seem that, to avoid this difficulty, the persons suspected might be tried separately, and those who are not yet under accusation might be summoned as witnesses. But this expedient is rendered useless by the rule, that no man is required to answer questions when he chooses to believe, or to assert that he believes, that his answer might render himself liable to legal punishment. He may be required to give evidence which may ruin his fortune or destroy his character; but if it would expose him to a chance, however slight, of any penal infliction, however trifling, he has a right to say, I refuse to answer. As a last resource, the accomplice, whose evidence is to be used, is allowed to bargain that he shall not be prosecuted himself. As the price of his betraying his associates he obtains an impunity, mischievous to society and disgraceful to the law, which disgusts those who can comprehend its grounds, and perplexes those who cannot. We will illustrate some of these remarks by a reference to one of the most solemn legal proceedings which has occurred in England during the present century. The Earl of Cardigan was accused of having shot at Captain Tuckett with the intent to kill, to maim, or at least to injure him. The trial took place before the highest court in the empire, the House of Lords. A great officer was created to preside over it. The judges were summoned to give their advice. All the foreign ministers and the most eminent of the British public constituted the audience. Nothing could be more impressive than the ceremonial. To the unlearned, the proof of the prisoner's guilt appeared to be complete. The duel was fought about two hundred yards from the Wandsworth windmill. The miller, from his elevated position on the stage of the mill, saw the party approach and take their ground. While he was hurrying to interfere, he saw the principals receive pistols from their seconds and fire once, and receive fresh pistols and fire again. One of them fell wounded as he came up. The wounded man gave to him his card, engraved with the name Captain Harvey Tuckett; the other admitted himself to be Lord Cardigan. Captain Tuckett was allowed to be removed. Lord Cardigan was taken to the police-office; and, as he entered, told the inspector that he was his prisoner; that he had been fighting a duel, and had hit his man. There was, therefore, the testimony of an eyewitness, and the confession of the accused. What more could the court want? What they wanted was to know the second and third Christian names of the wounded man. The indictment stated his Christian names to be Harvey Garnett Phipps. The card omitted the two latter. A Mr Codd, who acted as Captain Tuckett's agent, was examined, and proved what were his Christian names; but, as he was not present at the duel, could not identify his Captain Tuckett with the wounded man. But it was supposed that Sir James Anderson, a physician, who had been on the ground to give professional services, could add the information that was wanted. This was his examination :- Lord High Steward.-" Sir James Anderson, I think it my duty to inform you, that you are not bound to answer any question which may tend to criminate yourself." * Mr Attorney-General.—“ Are you acquainted with Captain "Tuckett?" "I must decline answering that." "Were you on that day called in to attend any gentleman that was wounded?" "I am sorry to decline that again." "Can you tell me where Captain Tuckett lives?" "I must decline that question." "When did you last see Captain Tuckett?" "I decline answering any question that may tend to crimi'nate myself." "And you consider that answering any question respecting 'Captain Tuckett may tend to criminate yourself?" "It is possible that it would." "Then the witness may withdraw."' Such being the state of the proof, the counsel for the prisoner maintained that no case was made which required a defence; and Lord Denman, as Lord High Steward, proceeded to state what he thought ought to be the decision of the House. The charge was, that Lord Cardigan had shot at Harvey Garnett Phipps Tuckett. The defect of the proof was, that it was not shown that the person shot at bore all these names. 6 It is proper,' said Lord Denman, to observe that the law requires such proof to be given. The law gives no countenance to the opinion, that where the injury itself is, in fact, well established, the names borne by the injured party may be con'sidered as immaterial. There is little hazard in asserting, that no year passes without some examples of acquittals taking place in some of the courts by reason of mistakes or defects of this kind. In the present case, the simplest means of proof were accessible. If those who conduct the prosecution had obtained your Lordships' order for the appearance of Captain • Tuckett at your bar, and the witnesses of the duel had identi'fied him, Mr Codd might have been asked whether that was the gentleman who bore the four names mentioned in the indictment, and his answer would have been conclusive. If this were an ordinary case, the judge must hold the objection 'well founded, and the jury would at once return a verdict of acquittal.' In compliance with this recommendation, Lord Cardigan was unanimously acquitted. If the object of the English procedure were to arrive at the substantial truth, would it have been suffered to be insulted and defeated by this solemn trifling? Would the prosecutor have been required to prove any thing so irrelevant as the second and third baptismal names of the injured party? Would a witness have been allowed to refuse information, merely because he feared, or affected to fear, that it might expose him to punishment? What would be easier than to remove this excuse, if it be one, by enacting that his evidence given in court shall not be received against himself? If a link in the evidence is wanting, why should not the court have the power of adjourning (in Lord Cardigan's case a day, perhaps an hour, would have been sufficient) until it can be procured? The explanation probably is, that the discovery of truth was not the sole, or even the principal purpose, which the rules of English criminal procedure were intended to effect. They have grown up in that long contest between the crown, the aristocracy, and the people, which has produced, and continues to produce, the constantly varying institutions, forming what is called the Constitution of England.' Until the Revolution, they were, in many respects, unjust to the prisoner. He had no counsel, nor any means of compelling the attendance of his witnesses. They were not allowed to be sworn; and yet the jury was always reminded that their mere statements ought not to be listened to, when opposed to the oaths of those for the crown. The penal law was frightfully sanguinary and oppressive; it inflicted death and forfeiture with almost wanton profusion; and supplied weapons, from which no one who had a public or a private enemy could feel safe. The rules to which we have alluded, and many others, which are equally effectual to screen the guilty, were invented in order to shield the innocent. The judges sympathized with the accused. They acted as European captives have done, when they have been forced by a barbarous conqueror to serve his Artillery against their own countrymen. They withdrew the balls, or misdirected the pieces. And the rules which were thus introduced, have, as is usually the case, long survived their original motives. The Penal Code of Bavaria, the country from which Feuerbach's narratives are taken, bears a general resemblance to the criminal law of the other portions of Germany. Its procedure, and its rules of evidence, are far more faulty than those of England; but the defects are different, and indeed often opposite. Strictly speaking, there is nothing in Bavaria analogous to an English trial. There is no jail delivery; no day on which the prisoner must be acquitted or convicted. The whole trial, if it can be called one, is a long inquiry; first, before the local judge of the district in which the events constituting the supposed crime took place; afterwards, by the superior criminal tribunal, which, after perusing all the documents and the decision of the inferior court, pronounces sentence; and lastly, in grave cases, by the high court of appeal, which adopts, modifies, or reverses that sentence, or directs a further inquiry. On the occurrence of any such event, the Untersuchungs richter, (which may be translated Examining judge,) a functionary acting both as prosecutor and as judge, sets to work to ascertain, in their minutest detail, all the facts constituting the supposed crime, and all the grounds for suspecting any individual as concerned in it. Those against whom the judge thinks that there is a plausible suspicion, are placed in prison, and there must remain until the court is perfectly convinced of their guilt or of their innocence, or of its own inability to ascertain either the one or the other. We have compared an English trial to a drama; and it is a drama in which the unities of action and of time are observed with a pedantry which would satisfy the most servile French critic. The German judicial inquirer is bound by no such fetters. He hunts up every collateral fact or suggestion which may possibly influence the decision or the sentence. For the purpose of ascertaining the à priori probability of the prisoner's guilt, he unravels his whole history from earliest childhood. As that history approaches the time of the supposed crime, he endeavours to make it a perfect chronicle of all the prisoner's actions, and even words. By means which we shall mention hereafter, he obtains from him, on all these points, the fullest statements that can be wrung from him, and then investigates, as separate inquiries, the truth of every detail. If doubt is thrown on the testimony of any of the witnesses-whether by general imputations on character, or by defined charges, or by discrepancy even as to immaterial points-this doubt is to be cleared up, and the general inquiry waits until the credibility of the witness has been established or broken down. The original subject of investigation, or, to use the language of the English law, the issue between the Crown and the Prisoner, is like an Indian fig-tree. It can send out suckers, which become trees as large as their parent, and have the same powers of reproduction. Such an inquiry cannot be defeated by mere formal errors. There can be no flaw in the indictment; for, in fact, there is no indictment. The prisoner is not tried for having committed a specified crime; but the two inquiries, whether any and what crime has been committed, and whether the prisoner had any and what share in it, go on simultaneously. He cannot escape because, at a critical point in the proceedings, the prosecutor has omitted to prove a link in the evidence, or because a material witness is not produced. There is no critical point in a German trial. No one hurries himself, or allows others to hurry him, in that tranquil country. What is not proved to-day may be proved to-morrow, or, more probably, six months hence. If the witness is not forthcoming, the inquiry waits until he appears. Justice prides herself on being sure, and is utterly indifferent to the reproach that she is slow. One year, two years, five years, or even seven years may elapse before the final decision is obtained. And this decision may be, that the evidence being deficient, the prisoner shall be detained, either in actual confinement, or in an appointed place of residence, under the inspection of the police. In Germany, again, not only is the English rule, that a man shall not be required to criminate himself a rule which perhaps excludes more evidence than all our other technical rules put together unheard of, but the whole procedure is based on the opposite principle. The evidence given by a man against him |