CRIMINAL criminal procedure at once passes into the hands of the State as an infringement of law which must be repressed, on the ground that the whole community bases its security on obedience to law. In England the repression of all minor crime is left to the injured party. 2. In England every criminal proceeding from beginning to end is, and has always been, public, whilst on the Continent, with rare exceptions, all preliminary proceedings in a criminal charge are secret. The public system is called accusatory, the secret system is called inquisitorial. Outside English-speaking countries this secret investigation continues more or less. But of the two systems, accusatory or inquisitorial—the first meaning the right of the accused to defend himself, the second meaning the right of the State to examine any legal offence in private in order to ensure the safety of society,—the accusatory is gaining ground in every country. In English-speaking countries it is an established law that an accused person should have the right of publicity of the proceedings and the right to defend himself by counsel and by witnesses. On the Continent the inquisitorial system is gradually being abandoned. Perhaps the best Code of Criminal Procedure in Europe is that promulgated in Austria in 1873. It followed a fundamental law of the Empire which laid down inter alia that all legal proceedings, civil or criminal, should be oral and public, and that the accusatory system in criminal cases should be adopted. Germany followed this example. Italy, Holland, Switzerland, and Spain have followed Austria and Germany as regards the preliminary investigation; Italy and Belgium have surrounded the accused with guarantees against arbitrary confinement before trial; Holland has conferred upon the accused the right of seeing the adverse testimony and of being confronted with the witnesses, and, further, has formally insisted that no insidious questions, such as questions assuming a fact as true which is not known to be true, should be allowed. Other countries still remain on the old lines. But everywhere, whether reform has actually been accomplished or not, there is a demand for even-handed justice, and a grooving conviction that the accused should have all his rights, now that society is no longer in danger from undiscovered criminals and unpunished crime. Even in France, the champion of the inquisitorial system, a change is rapidly being made. . Up to 1897 secrecy was imposed invariably in the preliminary investigation of crime, and was held necessary for the discovery and punishment of the offender. The “ Loi de ITnstruction Contradictoire,” December 8, 1897, however, was a long step towards complete justice in the treatment of the accused in the preliminary inquiry. The main reform is that the accused, after he had once appeared before the judge and a formal charge has been made against him, is entitled to the assistance of counsel, either chosen by himself or assigned to him if he is poor. If he is in prison, he is allowed to communicate freely with his counsel, who is entitled to see all the proceedings, and in every appearance before the judge his counsel accompanies him. There are, however, certain limitations. The counsel cannot address the judge without leave, which may be refused, nor can he insist on any proceeding he thinks necessary in his client’s interest. He can only solicit. He has no right to be present at the examination of witnesses, who continue to be interrogated by the judge alone and not in the presence of the accused; but he must receive twenty-four hours’ notice of every appearance of the accused, and he is entitled to be present whenever his client, after the first formal appearance, comes before the judge. In England, as already pointed out, although the prosecution is in the name of the Crown, and although a public prosecutor has been appointed, still as a rule it is
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conducted by the person injured as the person injured, or by the police. 3. In England the single-judge system is universal, save in appeal; on the Continent plurality of judges is insisted upon, save in the most trivial cases, where the punishment is insignificant. The Public Prosecutor s Department is yet in embryo in England, whilst in most countries of the Continent the whole machinery for the prevention, investigation, and punishment of crime, is conducted by what is called the Parquet, which represents society as a collective unit and not the individual injured. The head of the whole Parquet in France is the ProcureurGeneral, who holds equal rank with the members of the Supreme Court. Under him there are Procureurs-Generaux attached to each of the Courts of Appeal, of which in France there are twenty-six, and under each of these subordinate Procureurs there are Procureurs (prosecutors) of a lesser degree. The next stage to the Parquet is the Juge d’lnstruction, who corresponds to the English magistrate, and is the most formidable personage in the whole system of French criminal law. He can detain and accuse a person in prison, can send for him at any time and ask him such questions as he pleases. After the first examination the prisoner is entitled, in most Continental countries, to the assistance of counsel, but the powers of counsel are so limited that the Juge d’lnstruction has a complete discretionary power regarding the investigation of the case. The natural consequence of this procedure is that the preliminary investigation really decides the ultimate result, and the final trial becomes more or less a solemn form. The single-judge system, applied to important matters, prevails only in English-speaking countries, or where English influence is dominant. On the Continent a plurality of judges is deemed essential to the administration of sound justice. This rule was probably made at a time when judges could never be allowed to sit alone for fear of the influence of the rich and powerful, the possibility of corruption, and the danger that a judge sitting alone would decide questions sometimes according to his convenience. Experience has shown in England and in all Greater Britain that the concentration of responsibility, which is the basis of the single-judge system, is preferable to a multiplicity of judges, none of whom feel the same duty to the case before them. Financial considerations also come into the question. It is of paramount importance that a judge should be sufficiently well paid to ensure his absolute independence from every point of view. The following comparative tables of judicial salaries in England and France speak for themselves :— England— £10,000 Lord Chancellor .... 8,000 Lord Chief Justice of England . 6,000 (4) Lords of Appeal, each 6,000 Master of the Bolls 5,000 (5) Lord Justices, each . 5,000 (23) Judges of the High Court, each 4,000 Recorder of London 3,000 Common Serjeant .... 1,500 Assistant Judges, each 2,400 Judge (City of London Court) . 1,500 (56) County Court Judges, each (11) Metropolitan County Court Judges, each Other Metropolitan Police Magistrates, each 1,500 Bow Street Police Magistrate . . • 1,800 France— President of the Court of Cassation . . 1,200 (3) Presidents of Chambers of the Court of Cassation, each . . . • • 1,000 S. IIL —37
