gistrate; the latter hears them all separately, and, according to the circumstances of the case, leaves the prisoner at large, or commits him to prison. He then adjourns the farther hearing of the case to the first convenient day: at the time appointed, the witnesses, and the plaintiff, accompanied by his attorney, come into court; the prisoner is then brought up, accompanied also by his solicitor, if he has the means of procuring one. The magistrate takes down in writing the prisoner's declaration, together with the depositions of the plaintiff and his witnesses, as they are respectively elieited by the prosecutor's or prisoner's solicitor.

• These examinations take place in London in a room open to the public, by the magistrates in Westminster, and by the aldermen in the City. I have reason to think that the same system is adopted in the country, although I had no opportunity of being present there, as I had in London. After the examination has been drawn up, the magistrate, according to the nature of the crime, and the weight of the charges, discharges the prisoner altogether, or liberates him on bail, or makes out a fresh warrant, and commits him to the county gaol, leaving the proofs of the charge in the care of the constable, or plaintiff. He afterwards considers, according to the nature of the offence, to what court he shall send the prisoner, to the assizes or quarter sessions; the plaintiff and all the witnesses are then bound in their recognizances, generally of forty pounds sterling, to pay this sum to the king, in the event of their not coming forward, at the next assizes or quarter sessions, one to prosecute the prisoner, and the other to give evidence to the circumstances within their knowledge. The recognizances and examination are afterwards lodged with the clerk of the assizes or quarter sessions, and the recognizance, if forfeited, is rigorously levied.

• Should the prisoner think himself wrongfully detained, he is at liberty, by virtue of the writ of Habeas Corpus, to complain to the court of King's Bench, who will examine into his case, and order his liberation or retention in gaol, according to the circumstances. But a proceeding of this naturc is extremely rare, and it is hardly possible to cite even a few instances of it, owing to the very great precaution taken by the magistrates, in committing none to prison unless upon the strongest suspicions. pp. 33–36.

To these remarks, in the correctness of which we fully agree, the Author should have added, that in certain cases, the English law gives the accused party the right of being set at liberty upon bail, and that the demanding of excessive bail is forbidden under severe penalties by the act of William and Mary. Every one knows, that this is matter of common right, except in cases of atrocious crimes, where public justice might be eluded. Yet, even in these cases, circumstances may arise, where bail might reasonably be admitted, and where it would be hard and unjust, says Blackstone, to confine a man in prisön, though accused of the greatest offence. This power may be interposed by the King's Bench, or by a single judge of that court in the vacation.

In France, the procureur du roi, or the juge d'instruction, two functionaries whose duties are of a most indefinite character, and strangely confounded together, have the power of issuing warrants. (mandats.) But, while an English justice of the peace, a magistrate for the most part unsalaried, independent of the government, and inaccessible to its influence, is solicitously watched by the unslumbering eye of English law, and, for every wilful abuse of authority, is liable not only to penal animadversion, but to pecuniary compensation at the suit of the injured party,—these two officers, avowedly the creatures of the French government, called into existence by its breath, and devoted, by every motive of hope and fear, to its service, are wholly irresponsible, in the true and ordinary acceptation of that term. The code, indeed, contains a barren prohibition against the abuses of their power, but promulgates no penal sanction for the offence; and in fact, they are liable to no other forum than their own consciences, which, among persons of this description, are not tender to a very extraordinary degree. As for the juge d'instruction, his authority seems to have scarcely any other limits than his own discretion. He is armed with several weapons, and the entire liberties of France may be said to be at his disposal. He may issue, according to his pleasure, a simple mandat de comparution*, which is merely a summons to the party. It is rare, indeed, that this lenient process is issued. There has gradually arisen a practice equally of dubious policy and oppressive operation, of calling in the gendarmes, a military police, into a perpetual alliance with French jurisprudence. Nothing is done without the intervention of this fearful engine. Hence, the mandat d'améner, a warrant of personal caption, is the most frequently resorted to. With us, unless in those cases where arrests may be executed without warrant, by magistrates, or even by private persons, viz. cases of felonies committed in their view,—with us, no warrant is granted without an examination upon oath of the party. A French subject may be seized by the gendarmerie on a mandat d'améner, without any previous accusation, and dragged through the streets with more than the ignominy of a convicted criminal. He is then interrogated in private by the magistrate, who may either send him to prison by a mandat d'arrét, or simply detain him there en état de depot; a distinction of little importance, since it is equally imprisonment, by whatever name it

may be called. Nor is it an imprisonment for the mere sake of safe custody, or of that mild and humane description which is enjoined by our own law. It is generally a stern coercion equivalent to the severest legal infliction, and the prisoner may be mis au secret,--a term which the humanity of our language refuses to translate, and which is in effect a series of cruelties (we shall describe them hereafter) that makes the abolition of torture and of the inquisition in that country, little more than an empty and nugatory boast.

It will be asked, Who are these magistrates, by whom constituted, who are thus enabled to wield an authority which human beings, conscious of their common infirmity, would tremble to exercise? By what slow and toilsome gradations of study, have they reached any thing amounting to a fair moral competency, that constitutes them the arbiters of the lives and liberties of their countrymen? It were surely not exacting too much from functionaries clothed with such powers, and armed with such instruments, to demand a long life of laborious application to juridical science-the viginti annorum lucubrationes of Lord Coke; the ripened experience of sages, who had grown pale over the midnight lamp, in collating, comparing, and digesting all the treasuries of ancient and modern wisdom. But if these rare qualifications do not exist among them, it might be expected that their character and their virtues would be included in their titles to so awful a duty. Certain requisites at least might be looked for ;- for instance, persons of mature age might naturally be expected to exercise more circumspection and prudence in bandling such delicate matters as the lives and fortunes of their fellow men, than a raw and rash tyro who has only taken his first degree in the faculty. The husband, the parent, would be more susceptible of kind and benevolent feelings to mitigate these dreadful and severe offices, than he who has no family; ' for wife and family,' says Lord Bacon,

are a kind of discipline of humanity, and single men are cruel • and hard-hearted, because their tenderness is not so often • called upon.' Those, also, who have been long trained to public functions, will be less conceited, less puffed up by their little brief authority, than the beardless youths who are suddenly snatched from their studies, and transplanted into public offices. These, however, are not the attributes which direct the selection of procureurs du roi or juges d'instruction. They are chosen for qualities little above those of husbandmen at our statute-fairs. For, as the French code has rendered these magistracies to the last degree complex and laborious, the first, nay, the only requisite which determines the choice, is vigour of age. The Bar supplies young men in the fullness of their

,

6

strength, fit for labour, and whose zeal and activity may be easily employed to the service of the government. The office of procureur du roi in almost every provincial court of the kingdom, is filled by a deputy taken from the lowest ranks of the bar. His judgement and moderation, therefore, in the grave and awful duties that are entrusted to him, will be necessarily on a par with his years and experience.

The mandat d'améner does not, indeed, empower the procureur du roi to commit the prisoner. It is, however, nearly the same thing, for be remains a deposite in the hands of justice, (en état d'améner,) till the juge d'instruction has decided how he is to be disposed of*. This, as will be seen, is a miserable sophism of the code,-a solemn and cruel irony, which mocks at the liberty it destroys. For, although these warrants are issuable onlyt in cases of flagrant délit (flagrans delictum), and when corporal or infamous punishment is incurred, or where an offence is committed in a dwelling-house, and when the master of the house calls on the procureur du roi to inquire into the matter ;-yet, in all these cases, if the accused be on the spot, he may

be instantly seized, or, if absent, be taken by a mandat d'améner. And though the code does not, totidem verbis, authorize an imprisonment, still, that imprisonment actually takes place; nor is its hardship at all alleviated by the sophism of being en état d'améner. And the right of issuing these warrants is also given to the juges de pair, to the officers of the gendarmerie, the commissaries of police, the prefects of departments, and the prefect of police at Paris. To what an extent also may the words 'flagrant délit be interpreted! By law, indeed, the actual imprisonment of the person is not warranted, until an examination has taken place, and the facts resulting from it are sufficient to authorize it. But these precautions are shamelessly evaded. Where is the remedy? The injured party complains. But the officer entrenches himself in the immunity given by the code to all acts officially done, unless the prosecution is authorized by the conseil d'état; a board resembling our privy-council, composed of the ministers and those peers and deputies who give them their political support. It is remarkable, that the grossest want of formality, even in the mandat de dépot, the instrument which consigns a man to a dungeon,-an omission even of his right name, or a wrong description of his offence, so that he may be ignorant of what is laid to his charge-an error, too, which may sometimes, for grave state-purposes, be designedly committed, and by virtue of which blunder he may

• Code d'Instruct. Crim. art. 40. Ib. art. 46. t Ib. art. 48, 49.

lie in gaol for an indefinite period, --is only liable to a fine of fifty francs*. And this fine is to be levied--on whom? Not on the officer who executed the warrant, but on the greffier (registrar) through whose office it passed !

In cases where only what is called la peine correctionelle is incurred, a summons is issued, (mandat de comparution,) which is an order to appear for the purpose of undergoing interrogatories. If the party does not appear, a mandat d'améner is executed; and, in case of resistance, the officer may call in the aid of an armed force. But the code peremptorily enjoins that the interrogatory is to take place within twenty-four houts at least. This provision, as must necessarily happen where the legislator does nothing more than enter a vague direction ob the statute book, is shamelessly evaded. It is the daily practice, as if in mockery of that direction, to convey the party to a prison where he remains several days before he is interrogated. Nay, it often happens, even after the interrogatory, when, according to the code, he ought either to be discharged, or com. mitted for trial, that he is kept in imprisonment under that convenient, but indefinite fiction, en état de mandat d'améner. The

juge d'instructiont is the only magistrate who can legally commit, and that only by a mandat de dépot, or a mandat d'arrét. As to the prisons themselves, they would furnish a pass of details disgusting and sickening to humanity. In the departo ments, they are crowded, infected, and damp. In many of them, twenty or thirty out of a hundred have perished annually, of epidemic disorders, arising from neglect and uncleanliness. The gaolers,“ seldom the friends of man,' carry the rigours of their office to a wanton and tyrannical excess. Men of letters confined for libels and other political offences, and persons detained only for debt, are doomed to a close and inevitable contact with the vilest criminals of both sexes. M. Berangert mentions a fact, which is but too well authenticated; we would gladly disbelieve it, if we could. A young lady of high birth and elevated rank, had, shortly after the Bourbon Restoration, been condemned, for a political offence, to peine perpetuelle; but, so scanty were the accommodations of the prison, that she was obliged to endure, night and day, the society, and to hear the converse of twelve abandoned women. That Writer beard her, as he tells us, breathe her complaints against the moral torture which was thus inflicted upon her. I was on the very

point,' she said, 'of suffering capital punishment, and I saw

a

* Ib. art. 112. + Ib. art. 107. and 111. I "De la Justice Criminelle en France," Par M. Béranger. Paris,

1818. p. 585,