counsel answers him, Fresh vehemence on both sides. The court becomes a perfect arena, where the passions have full play; exaggeration is pushed to madness, and the prisoner's life is disputed with a fierceness which disgusts the spectator and makes the stranger shudder.'

And now we are arrived at a period of the procedure, which, in our own courts, inspires a still but awful solicitudewe mean the summing up by the president. From this solemn and dignified duty, the collisions of zeal and the strife of the passions, which necessarily agitate the controversies of the bar, are religiously excluded ; and the magistrate, from the sacred and serene seat of justice, a height inaccessible to prejudice or partiality, nicely, and cautiously, and humanely adjusting the balance of facts and probabilities, by a steady and unwavering light, guides, without impelling, the jury to a sound and safe determination. Alas, this is the vision of the fancy, rather than a slight approximation to the mode in which this essential duty is discharged by the president of a criminal court in France. Let M. Cottů be heard,-an unexceptionable witness.

• The president sums up the case !...... A recapitulation ought to be an impartial exposition of the charges against the prisoner, and of his grounds of defence : but is it in fact so ? —unhappily, we are forced to acknowledge that it is but too often a tissue of fresh arguments against the prisoner, the extravagance of whose counsel sometimes, it is true, reduces the president to this sad necessity : but it often happens that the resentment which he himself has retained during the course of the trial, acts involuntarily on his mind, and induces him, without his suspecting it, to insist more forcibly on the proofs of guilt, than on the arguments urged by the prisoner in his favour.'

With our eyes fixed upon the numerous difficulties, as we have rapidly sketched them, which the delinquent has to combat,-bearing in mind, too, that the presiding maxim which governs every part of the proceeding is, that the conviction of the guilty is paramount to the deliverance of the innocent, it is most distressing to recognize in the magistrate, whose opinions, if forcibly expressed, must have a powerful influence on the jury, the absence of every judicial quality or feeling. In summing up, how misplaced are pompous and antithetical sentences-epigrammatic or metaphorical expressions—as if, in the discharge of so delicate a duty, the judge could condescend to court the applause of the audience! To say in Westminster Hall, that a judge was eloquent in his summing up, would be the bitterest satire. It would, in fact, be equivalent to an imputation of being partial. He who is eloquent, ,

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cannot be impartial. It is the very essence of eloquence to take a side, to uphold a tenet, and to inforce a peculiar series of impressions.

The jury now withdraw to deliberate. A few words, however, and only a few, upon a subject of great moment. А question may be well asked, before we speak about the trial by jury in France—whether that trial exists there at all? It is not in a name, that the virtue of that judicature resides. Unanimity of decision is so combined, in our ideas, with the trial by jury, that we cannot, with a safe conscience, admit that to be a jury, which decides by a majority of votes; and in France, a majority by one single voice, devotes a human being to the scaffold. For, when he is declared guilty by a majority only of seven to five, (as in the case of Castaing,) the judges join their votes to the majority of the jury, and thus the simple majority of the judges and the jury combined, decides the verdict. Suppose, then, that seven of the jury, (which consists of twelve, as with us,) agree upon a finding of guilty, whilst three judges out of the five vote for an acquittal, the two judges who vote for a verdict of guilty, by the union of their votes with the seven votes in the jury, form the majority; and thus the prisoner is condemned by nine votes against eight--the excess of one vote only

, in a case of life and death! But mark the absurdity, the monstrous absurdity of this regulation. The prisoner is in fact found guilty by the jury, and acquitted by the judges, viz. by each of those tribunals separately,--whereas, by this unnatural conjunction, he is convicted, althongh acquitted by a majority of that organ of the court, in which it must necessarily be presumed, that the greater discernment and judgement are to be found. Or state it thus. Two tribunals, upon whose united decision his fate is made to depend, come to diametrically opposite decisions. Is it not to be inferred from so marked a disunion of sentiment, that the guilt of the prisoner has been matter of great doubt? In the merciful system of English justice, every doubt is as beneficial to the prisoner, as if positive testimony was adduced in his behalt, for the jury are uniformly admonished to acquit in all such cases. France, in the case we have stated, there is more than doubt, —the positive determination of eight men in favour of innocence, while the preponderance of one single voice decides that innocence to be guilt! In truth, this heterogeneous admixture of magistrates and jurors, makes the trial by jury in that country a ridiculous misnomer.

M. Cotta, to our great surprise, has passed by all these considerations; nor are his remarks upon the question of unanimity

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at all to our satisfaction. They are neither correctly nor luminously stated. As this, however, is an important judicial problem, it is fair that we should permit our Author to speak for himself; premising that, by the law of 1798, unanimity of decision was established in France with this modification only, That if, after a deliberation of twenty-four hours, the jury should not agree, then their verdict should be returned by an absolute majority ; —and adding, moreover, on M. Cottû's authority, that during the existence of that law, viz. for twelve years, all the verdicts throughout France were unanimous, excepting forty only.

• The principal arguments opposed to this unanimity are, that, in the event of disagreement among the jurors, the unanimity to which they ultimately come, is never more than apparent, and that in fact it is but the forced submission of the smaller part to the greater ; that on all occasions of verdict against the prisoner, either by a simple majority or one of two thirds, the public ought to be satisfied, and should consider as certain that the remaining, third are in their hearts of the opinion of the majority, and that if they refuse to agree with the rest, the reason is that some are prevented by a feeling of weakness, and the others are men of a stubborn and obsti. nate disposition, who have laid down for their guidance the anti-social law of never pronouncing a condemnation, however convinced they may be of the culprit's guilt.

They assert, finally, that ihe system of unanimity produces no other effect than establishing a contest between the strong and the weak, in which victory must always rest with him whose mind and body can hold out the longest.

• To these objections, the partizans of unanimity reply; First, That it is wrong to assert that, by their system, the union of the minority with the majority is merely apparent ; since whatever condescension may be supposed in the former, we can never so far think that, with a strong and deep conviction of the prisoner's innocence, they could ever be tired into a surrender to the wish of the majority; and that their compliance with this wish proves at least that they had an inward persuasion of the prisoner's guilt, although they might have wished for more positive proofs against him during his trial.

Secondly, That if the public ought to consider as certain that the majority of two thirds really carries with it the assurance of unanimity, unless in cases where some of the jurors are determined, as it were, never to pronounce any condemnation, this becomes an additional motive to exact a public declaration of such unanimity; on one side, to force the weak from their last intrenchment, to cut off their shameful retreat, and compel them to march with the others to the assistance of society; and on the other, to break those refractory and systematic spirits who would be wiser than the law.

Thirdly, that we must not suppose that the bold and firm will always be on the side of error or bad faith ; but will frequently be found in the cause of justice, and aid it by their zeal and courage :

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and that, lastly, if it be not mathematically impossible for a pertinacious and obstinate man to force the eleven jurors decided on condemnation, to abandon, by lassitude, their own opinion and adopt his, yet, this is a less inconvenience than the one resulting from the ex. isting system, by which we see a prisoner condemned by a majority of eight out of twelve, when the four others are perfectly convinced of his innocence, and may openly proclaim their opinion in the highways.'

If we were justly surprised that M. Cottû should have passed by so important a feature in the criminal law of France, as the combination of the judges and the jury, we were quite at a loss to account for the slight and transient nutice of many other provisions equally favourable to the stern despotism which frowns in every part of it. We cannot pursue the details, but they have frequently fallen under our personal observation. Our Author has dwelt with considerable emphasis upon the mode in which the points of a case are submitted to the jury.

• By the code, the question resulting from the act of accusation or indictment is the only one that should be submitted to their delibe. ration. Reason, indeed, pointed out that a prisoner could only be tried for the fact indicated in that act, without which the procedure relative to his being brought to trial would become useless. But when circumstances, unknown during the preparatory stage, came to modify the nature of the offence, are we to deem ourselves obliged, strictly, to present to the jury the question of the act of accusation, which would thus remain without an object? The code had not fore. seen this difficulty.

• For instance, a man is seen descending from the window of a room in which a robbery has been committed : the articles stolen are afterwards found in his possession : he is presented to the jury as guilty of robbery with escalade.

• At the trial, the case is entirely altered; the witnesses, who at the hearing and examination had positively deposed to the prisoner being the person whom they saw descending from the window, hesitate in their testimony ; but the circumstance of the property being found upon him remains in full force : he is unable to explain in what way it came into his possession.

In this situation, we may conceive it possible for the jury to have some hesitation on the principal charge, this hesitation arising from a doubt of the prisoner being indeed guilty of the robbery ; but they can have none on the collateral fact, of his being at least an accessary by concealing the articles stolen.

• The indictment, or act of accusation, however, makes mention of the robbery only, and is silent on the question of being accessary. What is to be done? Must we suffer the prisoner to be acquitted of the robbery, and remand him to undergo a fresh examination and committal, as an accessary, when it is plain that this committal must depend upon the same evidence as the former ?

« The inconvenience flowing from such a system máy be at once perceived: business impeded,

crowded gaols, vast expenses incurred by the state for nothing, prisoners subjected to three or four successive arraignments, and growing grey in confinement, without the power of obtaining a definitive trial. Such a state of things was intolerable in practice; nor does it indeed exist, provision having been made against it, as we are about to explain.

• The courts, finding in the code of criminal process, no means of obviating the abuse just specified, and feeling the urgent necessity of so doing, have fastened on article 338, by which a president is allowed, when there result from investigation during the trial one or more aggravating circumstances, to present to the jury a fresh question relative to them. From this, the courts have drawn the inference that the president was authorized to present to the jury all the points collateral to those of the act of accusation.

• Assuredly, the framer of the law was far from suspecting that. this article would ever receive such an extension. He had only adopted it to furnish the means of perfecting the accusation, when it came to be aggravated by fresh depositions, proving a circumstance which was unknown at the examination, such as the being an accessary, escalade, or forcible entry; but he by no means contemplated establishing the right of presenting collateral questions. Consequently, when the first complainants against collateral questions presepted by the presidents of the courts of assize came before the court of cassation, this court was at first extremely surprised at the strange construction put upon article 338 ; but it was soon con. vinced of the impossibility, in practice, of foregoing a legal interpretation by which courts of assize acquired the power of presenting questions collateral with those of the accusation; and that it was necessary, since the above latitude was not laid down in the code, to supply it by giving to one of its articles a construction so urgently required.

But the wording of this article soon gave rise to another abuse, of which we daily experience the inconveniences. By its tenor, the president alone is to present the aggravating circumstance; and in like manner, according to the allowed construction, it is still he who is authorized to present the collateral questions. Hence it follows, that, in a great number of cases, a prisoner’s fate is in the hands of the president.'

But, among the many provisions which denote an adamantine and unpitying hardness of heart in the legislator, is that which excludes all compassion from the bosom of a juror. When they retire to deliberate, a mass of documentary evidence, the acte d'accusation and other papers extrinsic to the question before them, and which they are required to read, is put into their hands; and it often happens that the perusal of them dissipates the favourable impressions made upon them during the trial. More than this. In the apartment to which they retire, appears in large characters, a memento taken from