21 MAY 1870, Page 6

FRENCH CRIMINAL PROCEDURE.

TT would not be easy to exaggerate the importance of the J. reform which M. Emile 011ivier proposes, in his recent Report to the Emperor, in the French Criminal Procedure. Not only is any radical change in the criminal law of a country which has always been celebrated for the eminence of its jaris- consults, and, since the First Empire, for the general excel- lence of its code, of great moment ; but any alteration in the legal system of France is sure to have great influence on the. jurisprudence of the other Continental nations, who have all, More or less, adopted the French mode of procedure in criminal matters.

Two totally opposite systems of procedure exist, which M. Emile 011ivier very aptly names the "Accusatory" and the "Inquisitorial " systems ; it is almost needless to state it is the latter which prevails in Frtmee and on the Continent generally, whilst the former is in force only in the British Empire and in the United States. Those who might be tempted to fancy that the prevalence of the "accusatory," as opposed to the "inquisitorial" system throughout English- speaking countries, is in some mysterious way connected with the supposed Anglo-Saxon love of fair play, will find their refutation in th Emile 011ivier's able report. The Minister of Justice therein briefly traces the history of the adoption of the inquisitorial system in France, and shows that it was introduced suddenly, but not without calling forth protests—unhappily unattended to—from some of the most eminent among the juris- consults of his country. Until the twelfth centurytheaccusatory system was the only one employed in France. From the time of St. Louis begins the reign of the inquisitorial form of procedure. It was at first introduced timidly, and almost by stealth, into lay jurisdiction, but was not long in gaining ground. Francis L made it of general application in 1539, in spite of protests from all quarters. Well suited as it is for the purposes of tyranny, it was only natural that Louis XIV. should first extend, and finally codify it in 1670. Out of England men had be- come so accustomed to the inquisitorial system, that none of the protests which its application had called forth in the pre- vious century were raised against it in the century which saw the passing of the Habeas Corpus Act. Strange to say, neither the Constituent Assembly nor the Convention did more than very partially reform the abuses of the in- quisitorial system. M. 011ivier, indeed, affirms that the in- quisitorial form now only remains in the preliminary pro- cedure, in what is called the Instruction which answers to the proceedings before a committal for trial with us. It is only necessary, however, to quote the Minister of Justice's own definition of the two systems to show that his allegation cannot be sustained. This is his account of the accusatory or Anglo-Saxon system :--" The accused face to face with his accuser, an impartial judge above them both, as the guardian of the two parties,' the discussion of the proofs between those two parties and the public as audience." Let anyone who has ever read a report of a French criminaL trial, still more- anyone who has been an eye-witness of one, say if it is possible to apply the epithet-" impartial" to the President of a French. court, whose chief business always seems to be to lay verbal pitfalls for the unfortunate prisoner, and for the hardly less unfortunate witnesses for the defence, and partly by dint of bullying, partly by means of sophisms, to make the one and the other contradict themselves.

M. 011ivier has not, we venture to think, in his Report, suffi- ciently separate& the two processes, the instruction and the trial itself. To an ordinary Englishman, unacquainted with the rules of French law, and accustomed to the production of evidence in- open court, before anyone who cares to listen to it, the proceedings of a French jugs d'instruction are at first almost incomprehensible. To give as clear an idea as possible of the system pursued in France, and, indeed, throughout, the Continent, we will suppose that a man has been arrested:- on suspicion of murder. He is at once, and as a matter or course, puti into solitary confinement ; his friends and rela- tions are not on any account allowed to visit him, still less is he' permitted to have the assistance of a lawyer. The only visit, he receives besides that of the turnkey, who is himself not sparing in questions, is that of the jugs d'instruction. This magistrate's duty and endeavour is to get the prisoner to con- fess his (supposed) crime ; this, and not the research of truth,. is the avowed object of all his efforts, for in his midi to be accused means to be guilty. At the same time, the- juge d'instruction examines the witnesses, but no word of' their evidence is ever allowed to come to the ears of the- prisoner, until the instruction is terminated and he is- about to be put on his trial. There being no such thing as gaoE delivery in France, the accused may be kept in solitary con- finement for an indefinite period. Instances have been known. of prisoners being kept as many as 552 days, or nearly two years, before they were tried. At the present moment, the- prisoners arrested on the charge of a plot against the safety- of the State on the 8th of February have not yet been' brought to trial, and have therefore been more than three- months in solitary confinement. When at length they are brought before their judges, and allowed to consult with_ lawyers, they are face to face with the acte d' accusation, a. document which not only gives the history of the accused, from his birth upwards, but only too often that of his parents- and ancestors into the bargain. It is obvious that the manner in which the acte d' accusation is drawn up has a. most important influence on the dextinies of the prisoner let anyone who wishes to see how the juge d'instruction may be influenced by matters wholly foreign to the case- in hand, compare the acte d' accusation of Troppmann with that of the Prince -Pierre Bonaparte. In the case- of the plebeian murderer, who was condemned and exe- cuted for his crime, every fact, even the most trifling, in his- past life which could be supposed to bear on his case was, raked up against him. In the case of the slayer of Victor- Noir, such matters as a capital condemnation for murder at Rome, an expulsion from the island of Corfu by the ruling governor for the same crime, an accusation of a murderous. assault in New York, were not even thought worth men- tioning.

At length the prisoner is brought before the Court, and is. submitted to the judgment of his peers. But he is far from finding there the "impartial judge," above accuser and accused, and, as it were, "the guardian of the two parties," of whom M. 011ivier talks. The President is but too often a cleverer and more acute jugs d'instruction, with the Procureur Imperial to help him. The witnesses for the • prosecution can only be questioned by the judge, as the- prisoner's counsel may not address them directly, but only beg the President to put questions to them, and the judge- is at liberty to repeat the proposed questions in the shape and form which he thinks most advisable, or even not to put them at all. The mere fact that the prisoner's counsel has to an- nounce audibly the questions he desires to have asked, and that the witness has thus time to prepare his answer, is sufficient to show how far the French are from possessing the system of cross-examination which is so characteristically a part of English and American procedure. Bat if there are limits to the questioning of witnesses, there are none to that of the prisoner, and often his replies occupy as much space in a. reportas those of all the witnesses put together. M. Prevost- Paradol, who has long been the eloquent advocate of a reform in French criminal procedure, has reduced the advocates of" the questioning of_ the accused tothe following dilemma :— Either the evidence of the witnesses and of circumstance% sufficiently proves the guilt of the accused, or it does not... In the first case, his examination is superfihous, the evi- dence being already sufficient to convict him. 112 the second;, it would be only logical to extort an avowal from him by the use of the thumbscrews. As a matter of fact, French judges-, make use of something which may "fairly be called moral thumbscrews. Whilst greatly regretting that M. 011ivier should have charged the Commission named in his Report to inquire into the Instruction only, and not into the whole system of criminal procedure in France, we shall, neverthe- less, follow with great interest the labours of a Commission which cannot fail to be instructive.