JURY. 



pnnce of criminal procedure of 1 670 was written in 

 blood, giving np the accused to (he arbitrary will of 

 the judge, and denying him the aid of counsel, 

 excepting in a few cases (Tit. 14. sect. 8); admitting 

 a double application of the torture (the question pri'- 

 paratoire, to extort from the accused a confession of 

 liis own guilt, and the question prealable before exe- 

 cution, to compel him to reveal his accomplices); 

 and allowing any judge, even the patrimonial courts, 

 to institute a process without any statement of the 

 ground of suspicion. The judges were even more 

 severe than the laws. Their ignorance and care- 

 lessness occasioned mistakes and abuses, which their 

 pride and the clannish spirit of the higher classes 

 prevented from being rectified, and under the opera- 

 tion of which crowds of innocent persons lost liberty, 

 property, reputation, and even life. Even the most 

 atrocious criminals, Damiens, for instance, could not 

 be legally sentenced to such cruel torments as this 

 offender actually underwent, when torn to pieces by 

 wild horses. All the districts, therefore, in 1789, 

 were unanimous in desiring that the judgment in 

 criminal cases should be made dependent on the 

 verdict of a jury. In fact, such a provision was in- 

 troduced into the constitution of September, 1791, 

 and on this subject there was hardly any difference 

 of opinion. The form of the English institution was 

 followed, a grand jury being appointed to find bills 

 of accusation, and, after the conclusion of the process, 

 which was to be public and oral, the question of fact 

 was to be determined by a jury of twelve persons. 

 There were to be, also, as at present, justices of the 

 peace, clothed with proper judicial authority only in 

 oases of minor importance and disputes respecting 

 the right of possession ; and likewise district courts, 

 who should exercise a mutual appellate jurisdiction 

 in regard to each other's decisions. The judges 

 were to be chosen by the people, to remain six years 

 in office, were to be re-eligible at the end of this 

 period, and to be paid, scantily indeed, by the state, 

 lieing prohibited from receiving any fees. These 

 provisions were made by the law of Aug. 24, 1790, 

 respecting the organization of the courts. An ordi- 

 nance respecting criminal jurisdiction ofSept.29,1791, 

 a penal code of Oct. 6, 1791, and the regulations 

 for the conduct of criminal prosecutions, Oct. 21, 1791, 

 completed this new system, which has been subse- 

 quently retained in its fundamental principles, though 

 not without undergoing essential alterations, by 

 which a portion of the benefits, that are ascribed to 

 the constitution of English criminal courts, was lost 

 again, and the influence of the officers of the govern- 

 ment on the administration of justice (it is said) 

 improperly enlarged. The criminal courts were at 

 first derived from the district courts, the judges sitting 

 alternately in the criminal courts of the department. 

 One of the judges was director of the jury, drew up 

 the indictment, and assembled the jurors. The jury 

 of accusation (d 'accusation) consisted of eight mem- 

 bers, three voices for the accused being sufficient to 

 reject the complaint. This jury of accusation is now 

 entirely abolished in the new criminal ordinance of 

 November 17, 1808. (See Codes les Cinq.) The 

 criminal courts for more important causes (cours 

 d'assises] are now deputations of the king's court 

 (cour royafe or cour d'appel), and the decision 

 respecting complaints is committed to a division of 

 the cour royale. The liberty of the accused to hold 

 consultation with counsel is less restricted by the 

 new laws than by late practice. According to a 

 very doubtful interpretation of the article 302 of the 

 act of 1808, to regulate criminal process, the counsel 

 is allowed access to the accused only a few days 

 before the beginning of the public prosecution. 

 And, in some cases, as in libels, the definitive 



decision is taken from the jury, and given to tli6 

 police courts. To require the unanimous agreement 

 of the jurors to a verdict, which, even in England, is 

 often attended with great difficulties, and leads to 

 striking inconsistencies, was soon found entirely 

 impossible in France. The simplicity of the English 

 process, which, at the end of the proceedings, leaves 

 to the jury the verdict of guilty or not guilty, it was 

 found in France impracticable to imitate. In Eng- 

 land, only the most important witnesses are brought 

 forward, and a day, or, in very complicated cases, 

 three or four days are sufficient to complete a trial, 

 and consequently no uncommon powers of mind are 

 required to retain the testimony in the memory. 

 But, in France, even the most unimportant testimony 

 is admitted. Hence several hundred witnesses are 

 sometimes brought forward, and more weeks spent 

 in a case than there would be days employed in 

 England. It having been found absolutely imprac- 

 ticable to insist on unanimity in the jury, it has been 

 resolved to assume the simple majority of seven 

 against five, as decisive. But in that case the court 

 itself is obliged to deliberate on the same points, 

 and an acquittal takes place, if the majority of the 

 judges coincide with the minority of the jurors, so as 

 to make the numbers of voices in favour of the 

 acquittal equal to those for condemnation. The 

 courts have also the right to set aside the verdict of 

 the jury, if it appears to them to rest entirely on an 

 error; but this must be their own free act, and 

 cannot be proposed by any one. A simple majority 

 of jurors decided the case of Fonk, and, at Paris, in 

 1823, that of doctor Castaing, indicted on a charge 

 of poisoning. Among the objections made to the 

 new French criminal process is the excessive power 

 committed to the president. In England, the exami- 

 nation of witnesses is carried 'on by the prosecutor, 

 and the counsel for the defendant, but in France, by 

 the president alone. And there is frequently seen a 

 very striking exercise of this privilege, as well as a 

 hostility to the defendant, which ill comports with 

 the judicial office. But the loudest complaints that 

 at present are made, are of the selection of jurors 

 (which belongs to the prefect alone), and the restric- 

 tion of the right of challenging. The prefect draws 

 up a list of sixty jurors, of which the president of 

 the assizes strikes out twenty: the defendant (or 

 defendants collectively, however many there may be 

 of them) and the attorney-general, each, can strike 

 out twelve, and the rest constitute the jury. In this 

 way it is possible to collect a jury consisting of the 

 enemies of the accused, and it is asserted that this is 

 often done in the case of prosecutions for political 

 offences. The best French jurists (Dupin, Berenger, 

 Paillet, Bavoux, &c.) are therefore fully agreed, 

 that the French jury contributes little towards a pure 

 administration of justice. Even in England, its value 

 is very doubtful. It may seem rash to attempt to 

 assail the general conviction, not only of the English, 

 but of the French also, and other nations that recog- 

 nise, in this popular institution, the palladium of all 

 genuine civil freedom, and place entire confidence in 

 their trial by jury But it is only the cases of 

 political prosecutions, or those in which the innocent 

 have been pursued by the revenge of the great, 

 which give to the trial by jury its reputation ; and 

 there is still another question, not only whether the 

 jury always merits this reputation, but whether the 

 desired advantage cannot be attained equally well, 

 and even better, by a proper organization of the 

 judicial office. But to return to what we were 

 saying on the value of the jury : This body in Eng 

 land was not able to prevent the infamous judge 

 Jeffreys (chief-justice under James II.) from gratify- 

 ing his private hatred, nor has the French jury been 



