the man.

Well, the prosecutor in his address said, "You know you would have killed him the first time, but the sacredness of his sleep protected him-gentlemen of the jury, that is one murder." That is the way the prosecutor goes on wh his character is concerned in bringing a prosecution and getting a convicti Another thing in France is that they don't give a man the benefit of his trial a: the proper time. The public prosecutor told me that they had kept a man, against whom there was not sufficient evidence, eleven months in custody, and then they discharged him because they never like to bring a man to trial without convicting him. [Lord BROUGHAM. But the public prosecutor in France has not the power which the judge has and exercises every day, of putting the prisoner to the torture by cross-questioning him, and cross-questioning him with the information and the evidence before him.] The public prosecutor has the power of examining the prisoner. [Lord BROUGHAM. In open court before a jury?] No; the judge does it in open court. But the public prosecutor has a right to see and examine the prisoner in prison, and that is the great abuse of the present system. It a not done in open court, but in the jail, where nobody sees, and where the prisoner has no counsel to defend him. One of the questions which is about to le submitted to the Foreign Congress which meets about this time, is, Whether the prisoner should not have under his cross-examination the benefit of counsel to tell him whether he should answer or not. [Lord BROUGHAM. But the publis prosecutor has no power to avail himself of that examination which he has conducted in prison; he cannot bring the answers to that examination before the jury? I think everything they get can be brought before the jury-all the enfessions. Your lordship knows the remarkable case of that woman that was convicted on her own confession when she was innocent. The public prosecutor said to me, "Now we have got a woman under trial who was committed to prison uper her own confession of having murdered her father, and she did not do it." "Mr. WESTLAKE. These are materials for preparing the act of accusation, and the first step is to submit the act of accusation to the jury.] While I have condemned the French system, there are some things, I think, in their procedure which we might adopt with advantage. I see no reason why the attention of the prisczer should not be called to any particular points of the evidence which might be within his own knowledge, and which he might be able to answer, provided he is not unduly pressed. In this trial to which I referred part of the evidence wis that of a gunsmith, who said he had given the prisoner a brace of pistols. Te judge turned to the prisoner and asked, "Have you anything to say ? " The prisoner said, "I say, my lord, it is not true." And the judge did not pursue ⠀ any further. I said to the judge afterwards, "We were told you were severe in cross-examination, but that does not appear to be your system." He said, “No. it is not my system, but that is the system of some of the judges." Some judges in France carry the system to the extent of cross-examining the prisoner, which is very objectionable; but I do not see why you should not call the attention of the prisoner to a material fact, and say, "Now what have you to say?" Tab the case of an alibi. If the attention of the prisoner was directed to some point in the evidence he might say something in regard to it which should convict himself. And why should he not convict himself? I never could understand why a prisoner should not be allowed to convict himself, if he is not subjected to any undue pressure.

Alderman LEEMAN: Having been now a clerk of the peace in this county for some twenty years, and having had some practical experience of the working of the criminal law, I ventured upon the occasion of the inquiry to which reference has been made, to give an opinion which I have retained from that hour, namely, that the appointment of a public prosecutor is not necessary for the due administration of justice. I think it is right on a occasion like this to endeavour to see what are really the practical difficulties with which it is said we have now to contend in the administration of justice. Now it may be all very true that there are evils existing about the Central Criminal Court, which it is desirable to have reformed. But surely it is not because in some few instances these abuses exist that you should introduce a system which I venture to say would go to sap the very foundation of the criminal law in the remote districts of the country. What is the case in the large towns of the

country and also in the agricultural districts of the country? Why, in every large town you have got a body of police now established. It is said that these police connive with parties, and are themselves the institutors of the prosecutions. That may be the case in some instances in London; but I venture to say it is not the case in the large towns of the country; it is a libel on the police to say so. There is no public prosecutor except in one or two large towns and in towns where there is no such officer, there is not an instance of the abuses referred to as existing in London. Whoever heard that justice was defeated, or that any person was not put upon his trial from Bradford, Halifax, or any of the densely populated districts for want of a prosecutor to follow up the criminal? And why? Because in recent times there has been the establishment of a constabulary in our counties which has got the charge of these prosecutions. It is impossible for any great crime to be committed in this county, without your having within a very few hours the diligence brought into play of the various chief constables, and it is impossible almost for that crime to remain undetected and unpunished. I say the same for the agricultural districts. There all the purposes for which a public prosecutor is said to be required are attended to by the chiefs of the police. Let me cite what occurred only recently. In the riding immediately adjoining us, during last winter, there were incendiary fires in large portions of the county. Was there any necessity for a public prosecutor in those cases? The chief constable of the district was immediately put in action; and immediately after the detection of the criminal it became the business of the constabulary to see that the prosecution was carried out. But it has been said that it is necessary you should have these public prosecutors to prepare the briefs for counsel, and to see that there is no collusion before the party comes upon his trial. Now it should be borne in mind, that a very large proportion of the crime of the country is actually disposed of without a trial at quarter sessions. A large number of the cases which now occupy the magistrates are disposed of by them. Is it proposed that there should be a body of functionaries to prepare all these cases for trial? And has it been considered what must be their number and how they must be at hand at a moment in every case which occurs in the widely diffused districts of the country? Take our north and west ridings. Is it proposed that in each of the divisions and sub-divisions of the ridings in which magistrates sit for the administration of justice, it shall be necessary for the police, immediately after a case of this description has occurred, and when they don't know whether the man will consent to have the matter disposed of before the magistrate, or whether he will go to the quarter sessions-to go and seek the aid of those government officials in order that they may attend before the justices and prosecute? Those who propose that can have very little knowledge of the vast proportion of cases which are thus disposed of in our west riding towns, and in Lancashire towns, and anywhere where there is a great mass of population. Now in every one of these cases the police, as soon as the crime has occurred, are expected, and they do actually see that the case is brought before a magistrate; and I venture to say that three-fourths of the crime that is committed in this country is of this minor character. With regard to other cases, I know no instance in an experience of twenty years as clerk of the peace, and of thirty-five years' practice as a solicitor-where there has been a failure of justice for the want of a public prosecutor. I do not believe it is for the interests of the liberty of this country that we should have that large number of paid officials that would be necessary to carry out this change, and the evils attendant upon the appointment of whom have been referred to by Lord Brougham.

Lord BROUGHAM: There is one point of view from which I wish this subject to be considered, and that is the protection of the judge. Since counsel for prisoners were allowed to address the jury the judge is placed in this unpleasant predicament that whether he will or not, where there is no prosecutor in court and no counsel for the prosecution, he has to take the part of the prosecutor's counsel, to answer the prisoner's counsel, and to see that the case goes right before the jury. Now I think that power ought to be given to the judge, when the prisoner is represented by counsel, to appoint some one for the prosecution. In the Central Criminal Court the judge is often left to see the case put properly before the jury, there being no counsel for the prosecution.

T

Alderman LEEMAN: I believe I am right in saying that out of London there is no such practice as the prosecution being conducted without counsel. I submit that a law which would render it imperative that counsel for the prosecution should be employed at the Central Criminal Court might well pass; but that does not render necessary such a change as that now proposed over the whole country. Dr. WALTER SMITH: In London it is the practice always for the judge at the Central Criminal Court and in the district courts to hand down the deposition to some counsel as long as possible before the case comes on for trial.

Mr. PALMER: The custom is, that wherever there is a counsel for the defence the judge invariably throws the deposition down to a member of the bar; bat it is a rule equally deferred to in all cases in the Middlesex Sessions that when there is no counsel for the defence the assistant judge or the deputy assistant judge prosecutes. Then even last week, in the Central Criminal Court I saw the learned recorder himself prosecute where there was no counsel retained for the defence.

Mr. HOLTBY, Clerk of Arraigns: I have the honour to attend the northern circuit, and I can speak from my own knowledge that in no case whatever on that circuit is the judge ever left in the unpleasant position of having to prosecute. A brief in every case is delivered to counsel, and the fee to counsel, as well as attorney, is allowed in taxation. As to the question of a public prosecutor, I do not not think it at all necessary. As to cases failing from the parties not prosecuting, I have always understood it to be the law, that the moment a case is before the magistrate, either by warrant or by summons, he has the power given him by statute to compel all parties to appear before him who can give him any information; and it is entirely out of the power of the prosecutor to compromise, unless the magistrate himself is cognisant of it. Very lately a decision was given in the Court of Queen's Bench on this point. It was a case vá assault, in which the magistrate insisted on the case being carried on: a conviction followed, and an application was made to the Court of Queen's Bench to quash the conviction. The court said, "No; the magistrate had cognisance et the case, and he could compel all parties to appear." My experience has been extensive, and no case has come under my knowledge where justice has suffered by the case being left in the hands of a private solicitor. I have had occasion to read the depositions before the northern circuit, in order to enable me to prepare the indictments; and the clerk of assize has always found it to be his duty to read the depositions to make up a calendar for the judge, that he might know th: nature of the cases; and I can say that those depositions, taken as a whole, are exceedingly well taken by the clerks of the magistrates. I am aware that there are some cases where it may be necessary to call in some other aid than that of a private solicitor. Suppose a case occurs in the north or east riding of that extent and responsibility that a private individual, who may be poor, cannot afford to pay the preliminary expenses. What is the result? Why, the magi-trate himself, either individually, or by the aid of the police committee, will either write to the solicitor, or clerk of the peace, for the riding, or write to ibe police committee for that district, and say, "I think that is a case of such magnitude, that the solicitor for the riding, and clerk of the peace, should take up the case. Such a case occurred recently in the west riding; considerable preliminary expenses were incurred, and the solicitor of the riding, at the request of the magistrates, took up that case. That was not done because justice wocid have failed under a private solicitor, but simply on account of the preliminary expense. I am not sure that in this county any advantage would be gained by the public by the proposed change; and I am satisfied that it would be costly, and as uncertain as, if not more uncertain than the present system.

Dr. WALTER SMITH: It appears from the speeches of the gentlemen who are opposed to the appointment of a public prosecutor, and who consider it unnecessary, that there is in fact such a person employed everywhere to do the work. In most places, Alderman Leeman tells us, it is done by the police, and now Mr. Holtby informs us, that in addition to the influence which is exercised by the police, there are times when the attorney for the riding is called in by a letter sent to him by the committing justice. He would write a letter to some party, who should take care to prepare the proper evidence. Thus the evidence is that some such officer

!

is necessary, only they say that he should be a policeman in the one case and a magistrate in the other. Now without under-rating the ability of those persons, I think that we should not grudge the small sum which would be required for the payment of gentlemen who would do the work at the same rate as in Ireland -say £500 a year for each county, which for fifty-two counties would be £26,000. I fully appreciate the observation of Lord Brougham as to the danger of adding to the patronage in the hands of the government; but I think that evil would be far less than what at present goes on. In London we have an officer who does for the corporation for which he is engaged the business of a public prosecutor. We have the Mint and the Bank solicitors, and the Post Office solicitors, and the Treasury solicitor, who acts for the Crown, and each of these gentlemen employ their regular counsel; and gentlemen who attend the Old Bailey will bear me out in saying that there are no prosecutions so well conducted, or where the evidence is always forthcoming with so much regularity as those prosecutions done with what I may call a quasi public prosecutor. We have heard a paper read to-day on the subject to which, I am sorry to say, so little attention has been paid-I mean in regard to the exclusion of testimony. I have heard it said that the law of England assumes the innocence of a man until he is proved guilty; but there is one maxim of the law which seems to assume the guilt of a man before conviction. He is told never to open his mouth lest he should convict himself. No man is bound by the law of England, it is said, to betray himself. That is to say, in addressing that maxita to the prisoner with the sanction of the law, you are saying, You are guilty; for heaven's sake hold your tongue, and attempt to explain none of the circumstances against you; your observations will only be sure to give evidence of your guilt." In the same strain is themagistrate directed to address the prisoner after the case is brought forward; "You are not bound to say anything; but whatever you say may be used. against you." Used against him; may it not be used for him? I am glad that the attention of the Association has been directed to this subject, as I think it absurd that an accused person should be advised never to say a single word, although by so doing he may dispel the cloud against him.

Mr. HARRIS, Registrar of the Manchester Bankruptcy Court: I think the want of a public prosecutor is shown by the fact that in so many places throughout the country such an officer has been appointed by the local authorities. There are some classes of offences in which he is very much required. For example, the case of railways sending out smoke is not taken up for want of a public prosecutor, whose duty it would be to proceed against railways for the nuisance. In some districts of the country the parish officers are ex officio prosecutors-persons very ill qualified to conduct prosecutions. I can hardly suppose it possible that you could find persons more improper for the purpose than the police. It is believed that they are open to bribery; I do not know whether they are so or not; but such a suspicion is in itself a great defect in the administration of our law. Persons should be appointed as public prosecutors who are above suspicion, and who have some knowledge of the law.

Dr. WADDILOVE: I wish merely to make one remark as to the verdict "not proven." Objections have been raised to that verdict, and they are reasonable objections; but we know that they have in France a verdict of "guilty, with extenuating circumstances." I cannot but think myself that that is a very just view to take of a large number of cases. Sometimes a very serious offence may be committed under circumstances of extreme provocation which certainly render the offender not so criminal in the eye of common sense and justice, as if that provocation had not been given. I would recommend that a verdict of that kind should be adopted in this country. It is well known that at present juries acquit in some cases where they think the offence is not one which ought to entail a capital punishment. Now, if they were able to give a verdict of "guilty, with extenuating circumstances," such a verdict might fully meet the justice of the

case.

Mr. STUART, in reply, reiterated his conviction of the necessity for a public prosecutor, which had been confirmed by what he had heard in the discussion.

MENTAL COMPETENCE.

On what Principle should the Law deal with Questions of Responsibility and Mental Competence in Civil and Criminal Cases respectively?

The papers on this subject by Mr. Stephen and Mr. North will be found at pp. 178, 192.

DISCUSSION.

Rev. CANON TREVOR: I venture to rise thus early in the discussion, because I am desirous of marking my decided conviction, that the most important branch of it does not exclusively, or even primarily, belong to either of the two learned professions represented in the papers read to-day. I mean that criminal responsibility is not a question of law nor of medical science, but a moral question, upon which we are obliged to employ the assistance of the law and of medical science, but with the fixed resolution on the part of the public and the legislature, that neither of them shall dictate the conclusions upon which the life and liberty of the subject are to depend. The insufficiency of either of these learned professions to determine the great questions here involved, has been most strikingly shown in the two most able papers read to us to-day; for whilst it is impossible to over-estimate the care and diligence which their respective authors have bestowed on the subject of their papers, I think no one could have listened to them without perceiving that they have not treated the question on the great principles upon which it really rests, or even seemed to appreciate the exact position of the question, as it must come before the legislature and the public. The learned gentleman who read the first paper fell into a mistake, I think, when he coupled the question of criminal responsibility with that of mental competency in civil actions. No doubt, upon a very narrow view of the subject, the commission of murder and the power to make a will may be treated as analogous legal questions, as the former is an act contrary to law, and a good will is an act prescribed by law; but here all the analogy between them ends. The power or competency to make a will is an artificial power, which has been bestowed upon the members of society by the law of the land. It involves no moral question, nor does it involve in some cases any question of mental com. petency. A man of twenty-one years of age is permitted to make a will, not because he is mentally more competent than a man of twenty, but simply because the law has been pleased arbitrarily, as a mere matter of social regulation, to make twenty-one years of age the age of competency for that particular act. In like manner an unmarried woman is competent to make a will, and a married woman is not competent; not because the unmarried ladies are in a higher state of mental capacity than the married ladies, but because the law, in the institution of marriage, has conveyed the power to the husband. On the other hand, the question of criminal responsibility stands upon an entirely different footing. A murder is a crime, not because it is forbidden by the law of the land, but rather the law forbids it because it is a crime against God and against nature. And in laying down the principles upon which a trial for murder shall be conducted, the law has not been prescribing its own arbitrary distinctions, but has been endeavouring to ascertain the true distinctions which exist in nature, and which may be supposed to be revealed to us by the law of God. I cannot, therefore, agree with the learned gentleman that there is no legal test of insanity. On the contrary, it strikes me that the gentleman who read the medical paper has more accurately stated the fact, and that there is a legal test upon this subject; and the strongest proof of that is, that whenever a person is found insane upon a trial for murder, the verdict is that he is "Not guilty by reason of insanity." How would it be possible for the Court to accept of such a verdict, if there were not some legal test of insanity, which takes away the guilt which would accrue to the act? I think the learned gentleman showed at some length, and with great refinement and closeness of argument, what these tests really are: but, on the whole, I should prefer to fall back upon the simple test laid down by learned judges, "Did he know what he was