the presentment of a grand jury, as in England. The qualification of a juror varies in different states. In New York he must be subject to assessment for personal property belonging to him, or for land in his possession, which he holds under contract for purchase, upon which improvements have been made of the value of 150 dollars, or have a freehold estate of the same value. The jury-lists are made up by persons called supervisors in New York, select men in New England, trustees in Ohio, and sheriffs in Louisiana and other states. The differences between the method here and in America of obtaining grand and petit jurors are not of sufficient importance to justify detail in a work like this, which does not profess to be a practical treatise on the law of juries; and I need only refer the reader to the new Code of Civil and Criminal Procedure for the State of New York, which has lately been there adopted, and where ample and minute information will be found upon the subject of the jury system in that state. I may mention, however, that by that code juries de medietate linguæ, and trials by a jury at the bar of the court, are abolished; also a jury trial may be waived by the consent of both parties in actions arising on obligations, and with the assent of the court in other actions. In such cases the trial of questions of fact is to be had by the court, or, in some cases, by referees, and it is then conducted in the same manner as a trial by the court.

The question of the political and social influence of the jury as one of the institutions of the United States will be noticed hereafter.

CHAPTER XV.

TRIAL BY JURY IN FRANCE AND OTHER PARTS

OF THE CONTINENT.

SECTION I. Trial by Jury in France.

TRIAL by Jury in France owes its birth to the Revolution of 1789. Prior to that period criminal charges were tried by judges, who decided both law and fact. These sat either singly or collectively, and the preliminary proceedings were carried on in secret; a system of which a more detailed account will be given when we come to speak of it as existing in Germany. This procédure secrète was borrowed from the Inquisition, which was introduced into France in the thirteenth century, not long before the judicial tribunals or parliaments of Paris and Toulouse were established by Philip the Fair. It soon found favour with the judges and lawyers, who were for the most part ecclesiastics, but was, as might be expected, unpopular with the nation; so that more than two centuries elapsed before it became general throughout the kingdom, by virtue of a royal ordinance issued in 1539, at the suggestion of the Chancellor Poyet, who became the victim of his own measure'. It will be sufficient here to say, that the system was made an engine of grievous injustice and horrible torture both moral and physical. The latter

Meyer, Inst. Judic. Liv. Iv. c. 14. Bernardi, Orig. de la Legislat. Franc. c. 10 Oudot, Théorie du Jury.

was only abolished in 1780, a few years before the storm of the first revolution burst over France.

Trial by jury in criminal charges was established in France by a law of the Constituent Assembly, on the 16th of September, 1791. But it soon became a mockery; for although by a law of 1793 it was enacted, that the extraordinary tribunals there established should proceed only upon the verdict of a jury, they soon, during the reign of terror, became permanent commissions, which dispensed with even the form of a jury, and committed murder by wholesale, refusing even the aid of advocates to the accused. When this frightful period had passed away, trial by jury again emerged, and several modifications were made in the system. By the law of 18 Fructidor, An. VI. it was enacted, that no verdict that was not unanimous should be given sooner than after a deliberation of twenty-four hours.

When Napoleon had determined to furnish a code to France, he caused the draft of his Code d'Instruction Criminelle to be submitted to the different courts throughout the kingdom, in order that their opinions might be ascertained. The number that replied to the invitation was seventy-three. Of these twenty-two declared themselves in favour of the retention of trial by jury, thirty desired its abolition, and twenty-three expressed no definite opinion on the subject. The reasons assigned by the opponents of the system were in substance these. They said that the institution was well enough for the English, who were used to it, but was unsuited to the French character and habits.

The labouring population had neither sufficient leisure to serve, nor enlightenment to discharge the duties of jurymen. The middle classes, from whom alone they could be chosen, were averse to undertaking so troublesome an office, and becoming the judges of their fellow-citizens; and carried this feeling so far as to be disposed to acquit even the guilty; so that the consequence would be an impunity for crime1.

Napoleon however resolved to retain the jury trial, but at the same time took care that the selec tion of jurors should be, to a certain extent, under the control and influence of the executive. In 1808 he promulgated his Code d'Instruction Criminelle, which embodied the whole of the French criminal law.

There is in France no grand jury or jury of accusation at all. It did exist there from 1791 until 1808, when it was abolished by the Code Napoleon. How then was its place supplied, and what is the machinery for bringing to trial those who are suspected of crime? The code delegated this duty upon two different officers, the one the procureur du roi, the other the juge d'instruction. The procureur

was to act the part of a public prosecutor attached to the court of the district over which its jurisdiction extended. And it is declared to be the duty of all magistrates and functionaries within that district to inform him of any crime that may be committed of which they have information. He ought, in cases of heinous crime, to repair to the spot, and there collect the evidence as to the fact and mode of its perpe

'See Oudot, Théorie du Jury, p. 207.

tration, examining witnesses and reducing their depositions to writing. He is empowered to order the arrest of the accused, and interrogate him as to his guilt. The evidence thus obtained is all written down, and forms when duly signed the procès-verbal, which is then transmitted, with all the papers and documents in the case, to the juge d'instruction. In each arrondissement there is one of these appointed by the government, and taken from amongst the judges of the civil court, to serve in that capacity for three years. In Paris there are (or were) six of these judges, or, as we may call them, justices. The Code expressly provides, that in the exercise of their functions as a judicial police, these magistrates shall be under the surveillance of the procureur général of the cour royale. In all cases of flagrant and heinous crime they are empowered to act of their own authority, precisely in the same way as the procureurs just mentioned, but may require the presence of the latter to assist them. In other cases, however, they cannot proceed without communicating with the procureur; and must act according to his directions.

It is the duty of the juge d'instruction, from time to time, and at least once a week, to report his proceedings to a chambre du conseil, composed of three magistrates, and if they are of opinion, when the whole case is before them, that the accused ought not to be prosecuted, they order him to be discharged, or hand him over to the correctional police, if they think the offence is one that may be dealt with summarily. But if they think that he ought to be put upon his