reform, and they declared that they were adverse to the institution of the jury in civil causes. Barrère and other speakers opposed this view, and spoke in favour of its introduction; but Robespierre now gave it only a faint support, and proposed that the question should be adjourned. Couthon called the idea of the jury in civil cases merely a fine dream, and caricatured the system as absurd and impracticable. The matter was again referred to the committee, and Hérault de Séchelles afterwards at some length explained the reasons which induced himself and his colleagues to reject the proposal; and which will be more fully noticed in the last chapter of this work. The result was, that the Convention adopted the view of the committee, and, in accordance with it, enacted that a number of judges should be appointed for the trial of civil causes under the name of public arbitrators. I am not aware that the subject has been again revived; but since the Revolution of February 1848, a proposal was made in the Assembly to submit questions hitherto dealt with summarily by the correctional police, to a jury trial; but this plan met with little favour, and was rejected.

SECTION II. The Jury in other parts of the Continent.

TRIAL by Jury in criminal cases was introduced into Belgium in 1830, at the time of the revolution, when that country separated from Holland. It is based upon the provisions of the Napoleonic Code. In Holland the system does not exist.

It was introduced into the kingdom of Greece in 1834, and is expressly retained by one of the articles of the new constitution granted in 1843.

In Portugal it was partially adopted in 1832, and more fully developed by a law of 1837. In 1838 the number of the jury was limited to six. In 1840 fresh modifications were introduced. The verdict whether of acquittal or conviction must be that of two-thirds of the jury at least, but it is the duty of the judge, if he thinks it incorrect, to annul it, and refer the question to another jury.

Trial by jury was established in Geneva by a law of the 12th of January, 1844. The system there has this peculiarity, that the law recognizes a distinction between a verdict of guilty under extenuating circumstances,' and one with the words 'under very extenuating circumstances.' The effect of either is to prevent the sentence of death or imprisonment for life from being passed; and of course in the case of the latter verdict the punishment is slighter than when the former is returned. In 1844 a person was tried for housebreaking and stealing, and two questions were put to the jury: first, whether the prisoner had himself stolen the articles? secondly, whether he was the accomplice of some person unknown who was the actual thief? The jury answered the first in the negative and the second in the affirmative, adding, ‘under extenuating circumstances.' The court thereupon sentenced the prisoner to five years' imprisonment. He appealed to the cour de cassation, on the ground that the second question ought not to have been put as he was not

charged as an accomplice in the indictment, and the court set aside the verdict. He was then tried before another jury, who found him guilty of having stolen the property of the prosecutor 'under very extenuating circumstances,' and the court, although they had sentenced him to five years' imprisonment when he had been convicted only as an accomplice, now sentenced him to three years' imprisonment when convicted as a principal, because the second jury had accompanied their verdict with the last mentioned words.

When the court are unanimously of opinion that a verdict of guilty is wrong, they have the power of annulling it, and remitting the case to be tried by a fresh jury. The prisoner may also appeal to the cour de cassation, not upon the merits, but upon questions of informality or defects vitiating the trial.

In Sardinia jury trial has been lately introduced; and on the 23rd of May, 1850, the archbishop of Turin (M. Franzoni), who refused to appear, was tried and found guilty by a jury of an offence against the respect due to the laws, by publishing a circular in which he ordered the clergy not to recognize the jurisdiction of the secular tribunals.

CHAPTER XVI.

INTRODUCTION OF TRIAL BY JURY INTO THE CRIMINAL PROCEDURE IN GERMANY.

SECTION 1. System of Criminal Procedure which Trial by Jury was intended to supersede.

BER

EFORE detailing the change which has taken place in the judicial system of Germany by the recent introduction of trial by jury, I think it will be interesting and useful to give an account of the mode of criminal procedure which it was intended to supersede. It is thus only that we can fully appreciate the evils of which it is the appropriate remedy, and the yearning desire for its adoption which has long been felt and expressed by the ablest and most influential of the German jurists. The subject has occupied the minds of profound thinkers and writers in Germany for many years, and it would be hardly an exaggeration to say, has produced what may be called a jury literature. The works with which I am most familiar, and of which I have in the present chapter chiefly availed myself, are those of Welcker', Mittermaier3,

Staats-Lexicon, Vol. vII. Art. Jury.

Die Mündlichkeit die Oeffentlichkeit und das Geschwornengericht (1845). Mittermaier is professor at Heidelberg, and one of the most distinguished jurists and writers in Germany. The above work is a storehouse of valuable learning in the criminal procedure of different countries. He has announced for publication a new work on the subject, which I regret has not appeared in time for me to make use of it.

Gneist1 and Goetze2.

It appears that criminal processes not very dissimilar to our own were not altogether unknown in Germany before the introduction of the jury system properly so called into the Rhenish provinces in 1798. We find several instances of offences tried before a court consisting of a presiding officer and a certain number of burgers summoned for the occasion. And it is remarkable that the number of these burgers was most frequently twelve. Thus a Swabian ordinance of the year 1562 declared, 'that the burgomaster and council of the four judicial districts should summon so many "jurymen" (urtheiler), as that each court might be provided with twelve good and fit (tüchtigen) jurymen.' In Emmendingen the tribunal was composed of twelve persons, the headmen of the surrounding villages. In Oppenau and Oberkirch the burgers chose a number of their fellow-citizens to act as jurymen for a certain period, and these were known by the name of Twelve-men, (zwölfer), because that was the number required to constitute a court.

Welcker gives us the record of a criminal trial at Durlach, in the grand duchy of Baden, in 1748, where one Pfeiffer sat as president, and twelve citizens as jurymen, or blutrichter as they are called. The prisoner, who was charged with theft, was defended

1

Die Bildung der Geschwornengerichte in Deutschland (Berlin. 1849).

2 Ueber die Preussischen Schwurgerichte und deren Reform (Berlin. 1851).

T. J.

BB