416 On the State of Criminal Justice in France. [APRIL, 



imagined that such statements, coming, as they do, to the jury with all 

 the weight of judicial authority, often make an undue impression upon 

 the most impartial, and the honour, perhaps the life, of an innocent 

 man may be sacrificed to the selfish ambition of the accusing ma- 

 gistrate. 



By means such as we have described, the public prosecutor in 

 France obtains a very powerful auxiliary to his personal talents. But 

 this is not all. In a French Cour d'Assises there are no protecting rules 

 of evidence ; neither is there any humane participation by the presiding 

 judge in the defence of the accused. The bench generally take a 

 decided, and often disgraceful, part against the latter. Prior to the 

 trial, they study the case from the materials collected by the judge of 

 instruction ; and it is notorious that their minds are made up upon the 

 merits of the accusation, from these ex-parte materials, before the pri- 

 soner has had an opportunity of offering any defence. A general bias 

 of the assize judges in France in favour of the prosecution arises from 

 this vicious system ; and the resuming or summing up of the evidence 

 by the president has several times been noticed in the French legisla- 

 ture as an additional pleading against the accused, and, as such, subver- 

 sive of the true ends of justice. 



With regard to evidence, none is really required to convict. " The 

 law," says the Code d' Instruction Criminelle, Art. 342, " does not 

 inquire how, or by what means the jury have become convinced. It 

 prescribes to them no rules by which they are to fix the plenitude or 

 sufficiency of a cause. The only question is, have they an intimate 

 conviction ?" In short, the law authorizes their coming to a conclusion 

 without any evidence whatever, and upon mere circumstantial inference. 

 This is termed the omnipotence of the jury. 



It cannot be denied that such a system is highly dangerous to public 

 justice ; for it actually breaks down the safety-barrier, with which the 

 necessity of proving ought to surround and protect the accused, who is 

 otherwise exposed to the errors and imperfections of human judgment, 

 unbridled by those wise laws of evidence, which serve as a counterpoise 

 to its fallacy. The French legislator has, either wilfully or inadvert- 

 ently, laid down a wrong principle having confounded intimate con- 

 viction with mere opinion formed on hypothetical reasoning. Con- 

 viction can proceed only from certainty, and certainty cannot exist 

 where a doubt is possible. Intimate conviction of a physical fact can, 

 therefore, be obtained from physical proof alone. To be intimately 

 convinced you must be as sure as if you had yourself seen or heard ; 

 and such actual certainty, if not the result of your own senses, must, 

 by the evidence of other people's senses, be brought upon your mind 

 in the same manner as your own seeing or hearing would do. This 

 last kind of proof is that submitted to the jury in judicial trials; and 

 in England, where its principles are so well understood, it is subjected 

 to rules which, so far as human foresight can extend, have provided 

 against every chance of error. 



been detained in prison twelve or eighteen months, these worthies will strain 

 every nerve to get him condemned, in order to justify his previous detention. In 

 1828, Count Portalis, then Minister of Justice, stated" in the Chamber of Deputies, 

 that a prisoner was seldom detained more than twelve months ivithout a trial, unless the 

 Ministtre public felt sure of getting him convicted ! 



