Criminal Law at Home and Abroad

THE volumes before us, taking them in their full series, give a comprehensive and exact view of the criminal jurisprudence of Europe. By the first,—the Neue Pitaval, — we have ;presented to us, under the editorship of several eminent civilians, a body of criminal reports running over a long course of years ; and though the style is more ambitious, and the treatment more graphic, than is usual with similar publications among ourselves, yet the technical as well as the material portions of each case are given with a precision which becomes men accustomed to deal as experts in the practice of law. The second work — Die Opfer Mangelhafter Justiz, or “Victims of Defective Justice” — is of a more popular character, but exhibits throughout the marks of a mind familiar with both the practice and the theory of the criminal jurisprudence of Germany. Taking the two works together, they give a survey of European criminal law on which it is impossible to gaze without being struck with the contrasts presented by a corresponding view of the law as it obtains among ourselves.

The first point that strikes us, at the opening of each particular case, is the care and skill which have been employed in the preliminary preparation of the evidence. Our American practice, in this respect, is mischievously loose. It is rarely that there is any attempt to guard the precincts within which a crime has been committed. Visitors, interested or disinterested, are permitted to flow in and out, effacing by accident, if not disarranging by design, the marks which would point to the guilty agent. It is as if Pompeii, when excavated, were opened to crowds of whomsoever might choose to pour in ; “relics ”of all kinds carried off, inscriptions of all kinds disfigured ; disarrangements of all kinds perpetrated, and often articles dropped and signs left which, after a short lapse of time, would lead the casual observer to doubt what century had inaugurated or what range of civilization had produced the confused phenomena on which he gazed. The consequence is that what may be technically called “ indicatory ” evidence is by us left to the mercy of chance or the still worse influence of malevolent design ; and the prosecuting officer, no matter how skilful he may be, often goes to trial bereft of one of the main sources of information from which a rightful conclusion can be drawn. In Germany, on the other hand, and, in most instances in France, whenever a crime is committed, a hermetical cover, as it were, is securely placed over the scene of guilt. Careful surveys of the house or ground are at once taken ; all articles likely to elucidate the event are sequestered, after their original situation has been carefully noted, under judicial control; and the most effective means employed, to reproduce on the trial the facts as they existed when the discovery of guilt was made. In this respect, at least, “justice ” is less “defective ” in Germany than it has unfortunately been permitted to become among ourselves..

But this contrast is not that to which the perusal of these volumes mainly invites. It is impossible to open them without seeing, as if invoked before us, two great spirits,—one of the civil, the other of the common law, — lowering on each other as if in hostility, defiantly marked as they are with their utterly antagonistic systems of treating persons under trial for crime. The Common Law says: “You shall not make that prisoner’s prior character a charge against him on the trial; you shall not examine him personally as to his guilt.” The Civil Law says : “ I will do both.” Now, because this struggle is one involving some of the most important interests of justice and humanity,— because it is one in which our American practice, after having been for generations loyal to the principles of the common law, is making a dangerous approximation to those of its opponent, — a study of the volumes before us, in connection with this issue, will be found of great public use. Our American courts, as will presently be more fully shown, are viewing each day with greater lenity the attempts of prosecutors to introduce the defendant’s general bad character as evidence against him in chief. Several of our American legislatures have lately declared that a defendant is to be a competent witness on his own trial; and though the prosecution may not call him against his own consent, yet, as will hereafter be seen, this is a consent which few prisoners on trial will be morally able to withhold. At such a juncture, therefore, it is well for us to pause to consider what is the practical exposition of these positions that the civil law unfolds. And for this purpose, no works could be more effective than the volumes we now review. Of one thing we may be sure. If they exhibit the civil law as in this respect cruel, reckless, and tyrannical, it is not because their authors bear it ill-will. These rank not only as among its experts, but among its votaries. Whatever charges the books may unconsciously' make, therefore, come from witnesses who at least view it with no unfriendly eye.

Let us then approach the question more closely ; and for this purpose let us select two of the trials before us in which the proceedings are given in the greatest detail. The first is that of Alm (as reported by Dr. Löffler), who was charged in Berlin, in December, 1849, with the murder of his wife. It appeared that a little after midnight, ou the 24th of December, he sent his eldest daughter, Johanna, a child of seven years, to a neighbor, named Blau, begging him to come at once to Aim’s apartment. After some delay, Blau arrived, and found Alm’s wife stretched lifeless on the floor of the workshop which adjoined the family chamber. She was dressed fully in a black garment ; a cord was drawn tightly round her neck, and her hair was in wild disorder. In her belt was found two scraps of paper, which were signed by her name, which declared that her death was by her own hands, and was induced by her conviction that she was the victim of a mortal disease which would make her life burdensome to others and miserable to herself. There was no doubt that she was in very infirm health, and had for several days been suffering with nervous fever. There was no doubt, also, that her husband, though a skilful workman, was frequently drunk, and was very' careless in providing for his family.

It was in evidence that in the afternoon and evening of his wife’s death, he was wandering from tavern to tavern, drinking to intoxication, and that he had frequently treated his wife with great rudeness, if not violence. Under these circumstances he was arrested and put on trial for the homicide.

The evidence, irrespective of his own examination, was very conflicting. His two eldest children, Johanna, seven years of age, and Marie, four, when taken charge of and interrogated by the police, declared, first, that their mother had tried to kill her youngest child, and then had killed herself; but afterwards they stated that their father had come in late at night, and had dragged their mother from her bed, and taken her into the workshop, and there murdered her. This they' recanted, but subsequently reasserted on the trial, though when examined separately' their statements conflicted on several material points. It was a very significant point in this connection that the deceased, when in bed that afternoon and evening, was dressed, according to the testimony of several witnesses, in a colored gown, which she wore as a night-dress. After her death, however, at the time of Blau’s arrival, she was neatly attired in a black dress, which appears to have been her best. That she should herself have made this change at midnight was consistent-with the hypothesis of suicide. That her husband in his drunken condition could have done it, without great resistance on her part, which would have exhibited itself at least in the dress, seemed impossible. And yet, if the inculpating statements of the children were to be believed, the change must have been made by the husband.

Medical evidence was taken on both sides as to the nature of the wounds ; and the question was finally referred to a committee of eminent surgeons. There was much conflict in their testimony, but the preponderance of authority was that it was possible, if not probable, that the wounds were selfinflicted.

There was no evidence of cries of any kind being heard by the neighbors, several of whom were in the same building and were stirring late at night.

The handwriting of the notes found on the person of the deceased was the subject of close inspection. Could they have been traced to the prisoner, they would have left his guilt without question ; and there were one or two experts produced who swore, on comparison of hands, that the writing was his. The great weight of testimony, however, in this section of the case, was to the contrary; and this opinion was strengthened by the test adopted on the trial, of compelling the defendant to write, on dictation, the words of the alleged declaration. On inspection of this paper, the official experts declared the two handwritings to be utterly distinct.

So stood the case apart from the prisoner’s own examination. As an illustration of the way in which, on a case which in a common - law court would result only in an acquittal, a defendant’s examination can be so conducted as to force him into the attitude of a criminal, we give copious extracts from the report before us.

“ Judge. Prisoner, stand up. What is your name ?

“Prisoner. Joachim Friedrich Wilhelm Aim.

“ Judge. Your age and religion ?

“ Pris. I am forty years, and of the Evangelical (Lutheran) confession.

“ Judge. Have you been previously arrested ?

“Pris. Three times ; the first when I was attacked with convulsions in the street; the second, on account of a disturbance in the streets ; and third, forgiving an unfair receipt to a journeyman.

“ Judge. What was the condition of your wife when you went out (on the afternoon of the homicide) ?

“Pris. She was in bed, and had on a colored dress.

“ Judge. Why was she in bed ?

“Pris. She was sick. I know not with what; the doctor told me that she had a hot fever, and that I must put wet bandages to her head.

8 Judge. Did your wife say anything to you when you left the house ?

“ Pris. My wife talked a good deal before I left the house. She wanted me to go to her aunt, the Widow Witt, who had lately visited her, and had wept, which had given my wife much trouble. She gave me six groschen, and told me to go out and amuse myself, as I had been working hard during the day.

“ Judge. That is not very likely, for your wife lay sick in bed, and if you were absent for a long time, she would be left alone in her helpless condition with the children. It is hard to believe that she should have asked this.”

The judge then proceeded to examine the prisoner in great detail, the plan being to question him, as is usual in German trials, on every point on which the prosecutor was subsequently to adduce testimony; and thus not only to bring his general veracity directly in issue, but to draw him out on a variety of topics connected with the res gestœ, as to which the most accurate memory and the greatest presence of mind would find it difficult to give uniformly prompt and accurate replies. In the case before us this is done at great length, and with the minutest circumstantiality. Our space allows us only to give one or two extracts.

“ Judge. Had you no conversation with the waitress at Thomes’s inn about your wife ? [The waitress was on hand to be presently examined on this point.]

“ Pris. It may have been so ; I may have told her that my wife was sick.

“ Judge. But you told her that your wife could not live, and had asked you to look out for another.

“ Pris. That is not so. I may have said that my wife could not live.

“ Judge. But you said also that your wife would die that night.

“Pris. How could this be so, as my wife the previous day was better ?

“Judge. Is it your custom to take frequent drams ? [On this point, also, several witnesses were to be called.]

“Pris. No. Formerly, perhaps, I could take more than lately, when I have had so much grief and trouble.

“Judge. It must strike every one as very odd that you should be ranging about beer-houses and inns for hours when your wife, with her infant children, was in her bed at home, sick and helpless.In your preliminary examination you expressed yourself differently as to your conduct on reaching the house. You then said that you were not at first convinced of your wife’s death, and were first assured of it by Blau, who showed you the cord round her neck. Here is a direct contradiction on an essential point.

“ Pris. The first statement could not have been correctly written down, for my daughter was the first who told me about the cord. . . . .

“ Judge. Did you closely examine the cord ?

“Pris. No. I tried immediately to untie it, but failed. The cord was then cut, and I did not see it again.

“ Judge. It is hard to explain how, in a matter of such extreme importance to yourself, that you should be so careless as not to trouble yourself as to circumstances which had the closest relation to your wife’s death.

“ Pris. I was so overwhelmed that I could think of nothing —

“ Judge. Was the cord cut on the same side with the knot?

“ Pris. I do not know; I took no notice of this.

“ Judge. I must again point out to you how remarkable it appears that on such important points you should intentionally avoid a distinct answer.

“ Pris. Such an event is so stupefying that it is impossible to remember all the particular circumstances, — and besides, I had been drinking.

“Judge. Did not your wife love her children.

“ Pris. Yes, she was very kind to them.

“ Judge. Here is a contradiction ; for if she loved them, would she by suicide have withdrawn from them her motherly care and protection ?

“Pris. But our troubles were very great. In eight years she had six children, and business was bad. I had the whole household work, the scouring and washing, as she was sick ; and hence I could earn so much the less. All these things may have led her to the step —

“ Judge. Did you make no attempt at the time yourself to read the notes found in your wife’s belt? [They had been partially read to him by Blau.]

“Pris. No, I did not see them again.

“ Judge. This is wholly inexplicable. You come home, find j'our wife the victim of violence, discover writings which must explain the mystery, and instead of eagerly seeking to understand their contents, you are so careless and heartless that you will not give even a look to this last bequest of your wife. I do not believe that there is another who in your place would have so acted. [The prisoner again pleaded for this his stupefaction and intoxication. The writings were then produced in court.]

“ Judge. Do you know this paper and this handwriting ?

“ Pris. These may be the papers that Blau found. The handwriting appears that of my wife ; and yet again not so, for it seems to me as if she would have written differently.

“ Judge. I ask you to notice that the contents of these papers is very peculiar. They contain more than once the assurance, ' My husband is innocent.’ Then, again, they are signed, ‘ Louise Alm, formerly Bottcher’; though it would scarcely be expected that your wife, if she had written these lines just before her death, would have thought of such formalities. Then again, in one place the name Alm is written with a Latin A, in another with a German A ; and then the statement, ‘ This I have myself written,’ is, at the least, very unusual. The prosecuting attorney has made these circumstances the ground of a powerful argument that the lines were written, not by your wife, but by yourself. What do you reply ?

“ Pris. I have nothing to say, except that I knew from my daughter’s statement that they were written by my wife.

“Judge. How did you and your wife agree ?

“ Pris. We got along very well together.

“ Judge. But witnesses tell us that you treated her badly.

“ Pris. This is not true ; it could only be said by bad men.

“ Judge. Every witness who has been examined (at the preliminary hearing) knows the importance of the issue, and the severity of the punishment involved. It is not to be presumed that any one will perjure himself in such a case. The witnesses will soon be called ; and you had better consider this before you contradict that which will presently be proved against you.”

We give but a very few of the numerous points as to which the prisoner was examined; and those we have selected are those in which the judge and the prisoner were brought into the closest collision. The examination, taking it in its various phases, lasted several days; and it incidentally appeared that, at the time of his examination in chief, the defendant was much emaciated by his long and painful imprisonment. He was ultimately convicted, and sentenced to imprisonment for life, and shortly after sentence died in prison. Not long after his death his innocence was demonstrated. His children, as they grew older, declared that their mother’s death was by her own hands, and that their childish statements to the contrary had resulted from fear, and from their constant conversations with the police, under whose charge they had been placed.

Now of course the question now before us is not as to the guilt or innocence of this particular defendant, and certainly not as to his general moral character. He may have been, and probably was, a half-vagabond, given to drink ; but this was no reason for his conviction for the murder of his wife. He may, also, have been very much confused on trial, and may have contradicted himself and contradicted unimpeachable witnesses on collateral points, but this, also, was no ground for such conviction. Or he may have been guilty, and have richly deserved the imprisonment awarded to him ; and yet neither this nor his prior unworthy character at all touch the merits of the system under which he was tried. Even the brief extracts we have given, from the protracted examination to which the defendant was exposed, show that this system has in it inherent and fatal defects. We have no reason to impeach the honesty or the impartiality of the judge who presided. He appears to have exercised the highest criminal functions in Berlin for a number of years ; and certainly on the trial immense pains were taken to collect the highest and most varied scientific testimony on the points as to which experts were required. No doubt the judge went into that, as in all other trials, with the conviction that it was his duty to probe the defendant’s conscience to the uttermost, to force from him an explanation of every inculpatory circumstance, and lead him to a due abasement and confession when such circumstances could not be explained. But how unequal a contest was this ! On the one side is a high official, calm in the consequence of exalted station, trained by long experience to master in advance all the details of a case, and then to force a prisoner to express himself as to each of these details, and surrounded by the usual pomp and power of judicial authority to overawe or silence. On the other hand is a prisoner whose liberty or whose life is at stake, whose physical frame is exhausted by imprisonment, and whose nervous system is unstrung by long morbid introspection; a solitary man, friendless, generally uneducated, and rarely, under the best circumstances, capable of threading a labyrinth so intricate as that into which he is now led ; a man with desperate stakes to play, and with, therefore, tremendous temptations, even when innocent, to escape some immediate dilemma by a falsification, which he has not the foresight to see will be presently turned against him to his destruction ; a man whose position is that of a poor, silly, fluttering bird, who finds himself gradually enclosed in the meshes of a net he can neither break nor elude. Now all this exists without supposing either brutality or bitterness on the part of the court. So far as the German trials are concerned, — as they are exhibited not merely in Dr. Löffler’s work, but in the long series of volumes which constitute the Neue Pitaval, — very little of these qualities is observed. The judges who conduct the examinations are not brutal, as was Lord Jeffreys. They attempt no sudden, dramatic surprises on the prisoner, as is the fashion of the French judges, whom we shall presently consider. They are not malevolent; there is none of that cold malice mingled with great and calm ability, such as Sir R. Bethell, for instance, may be supposed to have displayed when acting as crown’s counsel, though in such cases, by English forms, witnesses alone would be exposed to this terrible criticism, and the defendant, to whom such an examination would be so maddening and often so destructive, would be secluded from its range. There is none of this, and yet there is something in the patient, slow, penetrating analysis which the German judges pursue, which, if not so likely to craze or infuriate its wretched victim, is peculiarly adapted to exhaust his patience and his comprehensive recollection of the res gestœ, and so draw from him statements and opinions as to a vast variety of topics, relevant and irrelevant, as to some of which it will be easy to prove that his statement is false. The practice in most of the trials we have had an opportunity of observing is as follows: the judge takes the various preliminary examinations in his hand, and then proceeds to question the defendant on each fact that these examinations disclose. After the defendant is thus drawn on to express himself on every point to which the testimony can be made to reach, then, and not till then, are the witnesses examined in chief. If it were an examination for an official promotion, the process could not be more cool or exhaustive ; nor could greater care be taken to inspect the replies, and to upset them if incorrect. The difference is this, that here the party examined is on trial for liberty or life, and that he is examined, not as to the renditions of science, but as to multitudes of impressions as to the past, concerning which no human memory can be complete. The ordeal is one from which no defendant who is not consummately cool and capable can escape unscathed.

When we take up the French procedure, we find the same general vice displaying itself, though in a different form. We have the same spectacle exhibited of the strong attacking the weak, of the skilful attacking the ignorant, of the self-possessed attacking the feverish or the frantic; but that which in Germany is usually done by a sort of siege, — by carefully drawing the trenches closer and closer, and then undermining until the structure of the defence falls as if by itself, — in France is performed by a sort of brilliant judicial Zouavism, in which the judge, with bold and histrionic effect, pounces on the party on trial, and, tearing asunder his supposed subterfuges, seeks to expose, to degrade, and to immolate him on the spot. Of course there are multitudes of exceptions to this, but the temptations to such displays seem to rise with the éclat and the conspicuousness of the trial. Of this the following illustration will be sufficient.

In the city of Toulouse is a monastic foundation, whose fundamental principles are that its members should be exclusively lay, — that they should take the vows of chastity, obedience, and poverty,—and that they should devote themselves to the education of the lower classes. The name of the society is the “Brotherhood of Christian Doctrine ”; and, during its existence of centuries, it lias gradually erected, on the large tract of land acquired by it, a series of buildings, some traceable to the Middle Ages, others added from age to age down to the present era,—buildings of no architectural pretensions or regularity, separated by many shaded alleys and cloisters, and interspersed with many secluded nooks. Close to the monastery is a graveyard, in a dark corner of which at daybreak on the morning of April 16, 1847, was found the body of a young girl, Cecilia Combettes, who, as it appeared by unquestionable testimony, had been, a few hours before, ravished and then murdered. She had for some previous months been in the employment of a bookbinder named Conte ; and on the morning of the 15th was sent by him to carry some books to the monastery, within which, according to undisputed evidence, she was seen to deliver the package. There was no direct proof that she was seen to come out of the institution, which was surrounded by a wall, to which was attached a gate with a porter’s lodge ; nor was any trace of her discovered from ten in the morning of the 15th until the discovery of her body early the next day. By whom, then, was the outrage perpetrated? Conte, her employer, had accompanied her to the monastery, and testified that he left before she had delivered the parcel, and that while he was there he saw near to her two of the brothers, — Jubrien and Leotade. Against the latter some slight circumstantial evidence, which hereafter will be incidentally noticed, was adduced. He was arrested, and on February 7, 1848, after eight months’ imprisonment, was brought to trial. In reviewing the evidence then adduced, our object is to confine ourselves to such portions of the judicial examination of Leotade as serve to illustrate the general proposition which we have in this article undertaken to canvass. It is sufficient, therefore, at this point, to say that on the trial there was positive testimony to show that Conte had himself previously attempted improper familiarities with Cecilia, who was proved by unquestionable evidence to be a girl of excellent character ; and that some years afterwards he confessed that he was himself the perpetrator of the crime. On the trial, however, no evidence was presented showing the whereabouts of Cecilia after her visit to the monastery on the morning of the 15th ; and this, coupled with the circumstantial evidence to which we have already referred, arrayed against the accused a popular prejudice by which the terror of his position was vastly increased. Having made these preliminary explanations we proceed with our extracts from the judicial examination on the trial.

“ Chief Justice. What is your name?

“Prisoner. Louis Bonafons; my ecclesiastical name is Brother Leotado.

“ Ch. j. How old are you ?

“ Pris. Thirty-six years.

“ Ch. J. Did you know Cecilia Combettes ?

“ Pris. I have never even seen her.

“ Ch. J. Did you often visit Conte ?

“Pris. Yes ; yet, reviewing the past as closely as I can, I cannot recollect to have ever seen her with him.

“ Ch. J. Why this circumlocution ? You either knew her, or you did not.

“Pris. I did not know her.

“ Ch. J. Did you not go to Conte, some days before the murder, to order a writing-table ?

“Pris. I did.

“ Ch. J. Did you not say to Conte,

‘ When the portfolio is ready, send it to me by the child ’ ?

“Pris. I cannot recollect this.

“ Ch. J. If you did, this involves your acquaintance with Cecilia.

“Pris. I never saw a workwoman at Conte’s, and therefore I could not have said it.

“ Ch. J. Where were you in the morning of the (15th of) last April?

“ Pris. I was first at morning mass, which lasted longer than usual, as it was read for a brother who had recently died in Paris ; then I breakfasted and went from the refectory to the clothes-room, and brought the pupils of the Pension the things they needed, and then I wrote to the General of the Order a letter on my spiritual stateThis lasted until 9½ o’clock.

“ Ch. J. What did you do next ?

“Pris. I went to the kitchen and to the Director, to hand him my letter.

“ Ch. J. You went about 9½ o’clock in the kitchen ; where were you till 10 o’clock ?

“Pris. I went back into the clothingroom, after I had spoken with the Director, until 9¾ o’clock.

; “ Ch. J. Where did you meet the Director ?

“Pris. On the corridor of the Pension ; he asked for my letter ; I told him that I was just looking for him. It was then I went into the clothing-room, and afterwards into the school-room.

“ Ch. J. How late was that ?

“Pris. About 10½ o’clock.

“ Ch. J. Go on.

“Pris. I then fed the canary-birds in the presence of the hospital nurse, and then went to the cellar, and afterwards to Pater Noster. Then dinner, then the usual studies, then to supper, and then to bed.

“ Ch. J. The accusation charges you with having been seen at least twice during the day with Brother Jubrien.

“Pris. I talked with him after supper, when we were bringing some casks out of the cellar.

“ Ch. J. Although I have earnestly urged you to consider your answers carefully, you have failed to do this ; on the 23d of last April you were asked what you did on the prior 15th. Then you said nothing about having seen Jubrien, having spoken to him, and having helped him in the cellar. Were the other members of the community then asleep ?

“Pris. Yes.

“ Ch. J. Then you must have gone very late to bed on the 15th; and although before this we believed that all the brothers went to bed at the same time, it seems that some must have been excepted from this rule.

“Pris. When we retired later than usual, then we had next day to account for this to the Superior.

“ Ch. J. Your memory on the 23d must have been fresher than to-day. You then said that the mass was ended at 8½ o’clock, that you then breakfasted, then went into the kitchen, where you spoke to Brother John, and to the clothing-room, where you spoke to Brother Leopold, and then to the cellar. This had kept you till the_ Pater Noster, at 11 o’clock. But Brother Leopold fixes the time of your conversation with him at an hour earlier. You have been asked as to your occupations from 6 o’clock in the morning; and you say that about this time you met Brother Leopold in the clothesroom.

“ Pris. This is entirely correct. Does this hinder me from having seen him also at 11 o’clock? If I did not mention this at the preliminary examinations, it was because I was only interrogated as to my surroundings after 8 o’clock in the morning.

“ Ch. J. Very true. But in a subsequent examination you said that at 9½ o’clock you were in your office ; then in the hospital, where you met the Director, who asked you for wood for a fire for a sick child ; that you then went to fetch the wood, and then to prayers. And yet, notwithstanding these extended details, you did not till this moment utter a syllable as to the important circumstances of the letter on your spiritual condition.

“ Pris. If I did not mention this to the examining magistrate, it was through confusion. Daily, almost hourly [for the eight months] these examinations were continued; I was put under a moral torture ; I was treated, not as merely suspected, but as convicted. When I appeared in this court before yourself, I was first able to collect myself, as in the presence of a kindly judge.

“ Ch. J. You can spare your praises of me, as well as your censures of the examining magistrates. I will have neither. In your examination of the 3d of May, you declared that on the 15th of April you wore the same gown (soutane) and the same stockings which you now have ; while on the next day, on the 4th of May, when the question was put to you, ‘ How long you had worn the trousers and drawers you now have,’ you answered, ‘For ten days.’ How is this explained ? You further said, that you had laid the trousers and drawers, which you wore on the 15th of April, in the third chamber of the clothes-rooms on a table close to the entrance, — where, to your great astonishment, they were not discovered,—while on the previous day you said that on the 15th you wore nothing but the gown (soutane) and stockings. On the 6th of May you voluntarily stated to the examiners, ‘ The trousers, now shown to me, I recognize as those I wore on the 15th of April. I used these in the bed to cover my feet.’ How is it that, in spite of your statement, the drawers were not found with the trousers ?

“ Pris. I remember now for the first time that I did not lay the two off together, and that I wore the drawers at the time of the preliminary examination.

“ Ch. J. Were you in the habit of keeping rabbits ?

“ Pris. They belonged to the Brotherhood.

“ Ch. J. Did you ever give rabbits to Conte or his wife ?

“ Pris. I sold some to them.

“ Ch. J. Did you ever invite Cecilia to look at the rabbits ?

“Pris. No.

“ Ch. J. You, with the other brothers, were asked as to the condition of your garments on the 15th of April. While the others gave satisfactory answers to this, you are the only one as to whom this was not the case; and besides, you maintained that the shirt, which the examining physician found on you on the 18th of April, had been put on by you on the previous Sunday, and was worn because it had wide sleeves, which did not chafe the plasters that your health required you to wear. Where did you leave the clean shirt which you received on Sunday evening, for a change ? You say that you did not often change your linen, and that you laid the clean shirts under your pillow, and in this way retained two at a time. But in spite of this usage, you maintain that you gave back the shirt of April 17th to the brother who had charge of the linen, who, on his part, declares that he never received clean linen back from the brothers. After this you modified your answer so as to make it that you gave this shirt to the hospital nurse, who says, however, that he does not recollect this. Where did you hand it to him ?

“Pris. At the door of the hospital, in the week after April 18th.

“ Ch. J. You all say that at the time Conte met you in the corridor, you had gone to the communion. Conte, however, persists in his statement, and specifies your dress. At first (in one of the preliminary examinations) you distinctly denied this, but afterwards said that you could not call it to mind. Brother Jubrien, who was with you, follows the same theory, first a plump denial, then, ‘ I believe not,’ and at last, ‘I do not recollect.’ In all earnestness I demand to know whether, on the morning of the 15th of April, you were in the corridor of the Common Hall ?

“Pris. I am not in a condition to answer so complicated an analysis of the evidence.

“ Ch. J. It is not a complicated analysis, but facts. Were you in the Common Hall on the 15th ?

“Pris. No. On the loth I was there between 7 and 7½ in the morning.

“ Ch. J. Did not the way to it lead by the linen-rooms ?

“ Pris. Yes.

“ Ch. J. Did you have a key to the latter ?

“Pris. I do not know.

“ Ch. J. And yet (at the preliminary examinations) it was shown that you had a key which locked the door of that room, and that you could therefore change your linen without attracting any one’s notice. This key was afterwards shown to you, and you stated to what lock it belonged. Had you no conversation with Jubrien on the 15th ?

“Pris. Yes. In the evening, when I helped him in bringing the large casks out of the cellar.

“ Ch. J. I have now a correction to make. I asked you whether you possessed a key to the linen-room ; and you answered that if you possessed it, you did not know it. I will now show you a key which is proved to lock that room. You will now tell me whether you recognize it.

“Pris. It is the key of the kitchen closet.

“ Ch. J. Do you know if it locks the door of the linen-room ?

“Pris. No.”

This is a specimen of the examination in chief of the prisoner, which was followed by the calling of the witnesses for the prosecution. The method pursued is very much the same as that which we have already noticed as existing in Prussia. The judge has full notes of the various preliminary examinations, both of the accused and of the prosecuting witnesses. The prisoner is first called, and interrogated as to the points that these examinations developed, and as to any others that suggest themselves to the judge. Then the prosecuting witnesses are called, and all the statements of the prisoner, relevant or irrelevant, are put in issue, to be contradicted, if practicable, by the testimony so adduced. But in France, however, as has already been noticed, it is deemed not unsuitable for the judge at an}r period of the trial to surprise the defendant with the most sudden and confusing of appeals. This may be dramatic enough, but, apart from the objections we shall presently notice, utterly destructive of a calm, judicial rendering of testimony. Thus, in the case before us, several hours after the prisoner’s formal examination was closed, and while Conte — the chief prosecuting witness, and the real assassin— was under examination, the court with sudden swoop pounced on the prisoner as follows : —

“ Ch. J. (To prisoner.) You have just heard that on the 15th of April at 9½ o’clock you were seen in the corridor of the Brotherhood with Brother Jubrien ?

“Pris. Conte is a falsifier. On the 15th I was not in the corridor. As to what relates to my former life [which Conte had endeavored to attack] I can, at least, say that it is not so stained as that of my assailant. You can inquire at my early home, of my former employers, of my teachers. I had the wish to escape from the worry of the world. This is why I entered the Order. I am in the jury’s hands. Decide what my fate is to be; I will await even death in peace, as a missionary who will sacrifice his life to what is right; and (to the jury), so far from blaming you, will I the more fervently pray for you, for your efforts to decide rightly.”

Now we may pardon such distracted utterances in a prisoner subjected to such sensational shocks as those we here notice ; but we cannot excuse the system which invites the judge to consider the application of such shocks as among the chief feats of judicial prowess, Again and again during the trial do similar incidents occur. Let something inculpatory turn up, and down comes the judge, “ There, do you hear this, what do you say now?” The examination in chief is bad enough ; but no presence of mind, no power of memory, can endure such torture as this, lasting, as in the present case, through a trial occupying an entire week. It is not to be wondered that Leotade’s memory partially failed him, and that his replies became confused and delirious. He had been kept on the rack for the eight months prior to the trial by solitary confinement, broken only by the visits of his inquisitors coming to probe his conscience as to his entire past; and this agony reached its climax when, in the crowded court-room, his whole nervous and moral system was made the subject of the assaults we have detailed.

With the topic we have undertaken to discuss in this article Leotade’s innocence has no immediate connection. Innocent he undoubtedly was ; innocent he continued to declare himself to be until his death, nineteen months afterwards, in the galleys to which he was sentenced for life ; innocent he was proved to be by the subsequent confessions of Conte, uttered under the solemn sanctions of a death-bed, and verified by collateral proof which removed the slightest possibility of doubt. But guilty or innocent, the merits of the system under which he was tried, as we stated in the prior case, are the same. That system, so far as concerns the compulsory examination of the defendant, and the introduction, by the prosecution, of his character into the issue, obtains through the continent of Europe ; and wherever it exists it is associated with the abuses which exhibit themselves in the cases which we have just considered in detail. In the vast number of trials reported in the many volumes of the Neue Pilaval there is not one, where this system is applied, in which these abuses do not in a greater or less degree exhibit themselves. And it is but fair, in the present stage of our American jurisprudence, that the question in all its bearings, practical as well as speculative, should receive grave consideration.

For the changes which have been lately initiated in our American jurisprudence, as was stated in the beginning of this article, bring us very near to the practice which the cases before us display in so hideous a light. Take the first point, that of the introduction of the defendant’s character into the issue. By the common law, it is so far from being allowable for the prosecution to prove that the defendant has a “ tendency ” to commit the particular crime, that the merest allusion, by the prosecuting attorney in his opening address, to the defendant’s bad character, has been looked upon as a grave offence ; and juries have been discharged because such allusion has been made. Every man is permitted to carry to his case the presumption of general good character; and this presumption no one is permitted to assail, unless, as has been said, he should in his defence, introduce the issue himself No criminal, no matter how profligate, but, by the common law, is allowed his locus penitentiœ; if he has committed an outrage, he is tried for it, but he never is put on trial because he has previously been generally bad. The common law, in its humanity, says: “You shall have a chance to reform ; at all events, what you are liable to be tried for is an overt act of guilt, and not a violent temper or a depraved heart.” But in the last few years, some of our American courts have been departing from this rule. The departure began in cases of forgery, when it was permitted, though at first reluctantly and cautiously, to the prosecution to show, as part of its evidence in chief, that the defendant was an expert in the counterfeiting art. The next step, which was taken by some of our Western courts, was to permit the prosecution, in homicide cases, to prove also as part of the evidence in chief, that the defendant was a man of bloodthirsty and violent temper. If the principle of the latter case, at least, holds good, it is difficult to see what further obstacles remain in the way of our adopting the civil-law practice, in this respect, as a whole.

Then, towards the defendant’s compulsory examination we have recently made great strides. It is true that the statutes recently enacted in this respect only permit such an examination after the defendant has voluntarily placed himself on the witness-stand. But the experience of the few months that have elapsed since the passage of these statutes show that there will be few criminal cases in the States where these statutes are in force in which this exposure will not be made. The fact is, first, that the temptation to venture testifying in his own behalf, to a man whose life and liberty are at stake, is irresistible, even though the probability be that a cross-examination will ruin him; and, second, that to refuse to be sworn will come soon to be acknowledged as a tacit confession of guilt. Wherever such statutes exist, therefore, defendants will be uniformly submitted to examination; and the main difference between our own and the European practice will be that with us the inculpatory examination will be conducted by the prosecuting attorney and not by the judge. Whether this will be an improvement may well be questioned. A judge, no matter how keen may be the spirit with which he may enter upon what he may consider the exposure of error, is yet, in the main, an impartial ax-biter between the two contending parties. An attorney is, and ought to be, simply the representative of one of them.

Let us, then, look the system which is thus approaching us gravely in the face ; recapitulating to some extent, as we do so, the points which suggested themselves incidentally in the review given by us of the two cases especially selected by us for consideration. And first, with regard to the first practice touched by us, that which authorizes the prosecution to put in issue, as evidence in chief, the defendant’s character, by way of showing his liability to commit the particular crime. Notice, first, the debasement which the public mind must suffer from the judicial exhibition of prurient psychological detail. Nothing can be worse in this respect than the displays listened to by greedy audiences in what are considered the more “interesting” cases, and which are subsequently through the press presented to the public at large. We have before us in the third volume of the new series of the Neue Pitaval the report of a homicide case, that of Count Gustavus Chovinzky and of Julie Ebergenyi, in which the general sexual tendencies of the defendants, and their victims, the wife of the first, were made the subjects of the minutest and most discursive exploration ; and in which, according to the reporter, who prints these details at large, the court-room was crowded by some of the highest as well as by the most abject of the land. It is before such audiences, and then through the press, that this emptying of the most fetid contents of the human heart is artistically consummated. It is like the baling out the contents of a putrid well,— the process is one which cannot but spread contagious disease. For the exploration and exhibition is not, as with us, one of naked, hard fact, but one of prurient motives. The worst, vilest, most morbid of all human desires and impulses, things which we are impelled by every right feeling instinctively to hide even from ourselves, are keenly searched after, and ruthlessly displayed to the public gaze.

Then, second, this process destroys all power of rightful defence. The defendant, in the old common-law courts, knows what he is to prepare to meet. The issue is a single one; to this he adjusts his plea and calls his witnesses. Whatever his past may have been, he knows that the law, in its humanity, has given him an opportunity for reform ; and that now he is to be tried for a single well-defined act, as to which he has full notice, so as wisely to make ready for his defence. But with the civil law, a prosecution is limited by no such restraints, There is no point in the defendant’s past history, no matter how distant or how recent, which may not be suddenly sprung on him; and when the judge’s knowledge does not enable him to touch such points, the drag-net of a general interrogatory is swept over the offender’s memory. No offence has been so atoned for as to protect it from being thus brought up in judgment. No oblivion, no death of witnesses, no long passage of time consuming all explanatory or vindicatory circumstances, are allowed to intervene between the judge and the coveted disgraceful fact. The defendant goes to trial prepared to meet a particular issue, and he finds himself confronted with others, any one of which involves disgrace, but to meet which he has had no notice to prepare. And if no other acts or tendencies of guilt are available, then his prevarications on trial, — prevarications otten the convulsions of a man in torture, — are charged against him, and on these he finds the issue is made to rest. We do not say that under this system there is no security for innocence ; for in a general sense, — in that sense which involves a free uncovering of the secret frailties and passions of the human heart,—no man is innocent. But we do say, that in this view there is no security for any one. No one can in safety walk the streets, for there is no one who, if under trial, cannot be exposed to an investigation more or less destructive. We have no time here to dwell on disarrangement of judicial mechanism, and the consequent frequent escape of the real offender, wrought by this clumsy confusing of relevant with irrelevant issues. We have simply to say that by it no protection is left either to liberty or life.

The remaining question before us — that of the judicial examination of the defendant on trial — invites but few remarks in addition to those which have already been incidentally made. No doubt there is a class of temperaments which can escape this ordeal comparatively uninjured. Men of imperturbable temper and of comprehensive intellect and of quick wit may be able, during the trial, as well as during the numerous preliminary hearings, to maintain a calm and consistent theory of defence. But men of this class are rare, and are at least not unknown among those inured to crime. The consummate villain is, in fact, likely to be the most successful in the execution of this most difficult task ; while the guiltless, from their very inexperience in crime, and from the peculiar terror which disgrace possesses to them, are as likely to break down in the attempt. Thus in the case last noticed by us, Conte, the real assassin, played his part through a protracted cross-examination with every trait of candid innocence ; while Leotade, his victim, was betrayed into the apparent contradiction and confusion of guilt. For it should be remembered, the strain is the severest to which the nervous system can be exposed. Let us suppose that the judge is deterred, either by his own humanity or by public opinion, from sustaining such attempts as those of the chief justice at Toulouse, — attempts to bully, to terrify, to crush, to annihilate the victim who lies exhausted in his clutch. Let us suppose that he simply permits the method which the German courts have in the main adopted, of taking to the trial a minute brief of all that the witnesses for the prosecution are expected to testily to, and then examining the defendant in advance on each point. Let us remember how protracted, how multifarious, and how exhausting such an examination must be ; and then let us inquire which of us could submit ourselves to such a test, even though the topic might be the most innocent event in our past lives, without being betrayed into embarrassments and inconsistencies which may readily be received as confessions of guilt. And then let us rise from this personal view to the general considerations of public policy to which the issue thus ascends. The civil law — and with this recollection let us conclude — in this as in all other respects is the product of despotism. Its object is to level the citizen to the grade of the slave. It recognizes in him no sanctity of character, just in the same way that it awards to him no sanctity of home. He is the creature of the government that overshadows him ; and at its command he must in public unveil the most secret motives of his heart; and the system is one, therefore, which produces, not freemen, but tools ; not high personal enterprise, but apathetic sloth ; not political liberty, but political torpor and death. But the common law is the system of personal liberty, of manly independence and self-respect. It was produced by these great qualities, and these, in return, it fortifies and protects. If it makes every man’s home his castle, and if these castles are sometimes a little too roughly garrisoned, let us remember that they are not merely the shelters which protect the rights of the individual, but the fortresses which assure the grandeur of the state. And if, in declaring that no man shall be forced to degrade himself by his own lips, the same common law may give in isolated cases impunity to crime, let it be also remembered that by this process it not merely implants in the individual breast a consciousness of selfrespect and sanctity which ultimately makes crime less frequent, but it summons for the commonwealth the services of high-toned, strong, and rightfully loyal men. Let us beware lest, in infringing on this principle, we undermine some of the foundations, not merely of personal liberty, but of the public weal.

Francis Wharton.