criminal procedure to speeches of advocates; but since 1880 the judge' has been precluded from summing up, as is the English phrase, or " charging," as is the American phrase. Prior to 1880 the judge, after pre liminarily torturing the prisoner, possessed the opportunity to become tortuous toward any side that he chose for emphasis and animadversion, but usually aiding the procureur. Upon the wall of the court-room are to be read usually these lines : Hie poena: scelerum ultrices posuere tribunal, Sortibus unde tremor, civitas unde salus; but the eye of the judge would be perhaps fixed upon the three last words as his excuse for his partisanship. The safety of the state before the justice to an accused being their full, free meaning. Human nature is the same in a French jury room as in a Saxon one, but its mem bers may legally strain their quality of justice and usurp that of mercy by finding " exten uating circumstances " along with a verdict of guilty, which finding takes the place of the merely emotional American suffix to such a verdict of "recommendation to mercy" — the phrase whereby many a Thomas Didymus of a juror compromises with his conscience. If the American spectator of the average French trial of a criminal looks for any gleam of pity in the eyes of the prosecuting judge, he may possibly recall the sarcastic lines of the poet Nathaniel Parker Willis : — • • She hooked me kindly, as the fisher hooks the worm, Pitying him all the while." If the conviction be of a capital crime,
the cruelty to the accused is maintained by omission to fix the date of execution. This is left to the discretionary fiat of the Ministre de Justice. The awful hour may arrive within a few days — as in the case of Cesario the Lyons assassin — or it may not come within weeks. The condemned in his cell is suffer ing the mental tortures of a Damoclean hanging sword. Each night as he lies on his pallet he whispers to himself, " Will the guillotine cast its shadow on the dawn?" This mental torture is regarded as an ex cellent part of expiatory punishment. But at last some morning the culprit is awakened suddenly to see beside him priest and prison attendant, and then he becomes alive indeed to the sudden shock. " Quelle maticre, quel dommage!" once exclaimed a Monsieur de Paris, of the guillotine, to a reporter of the New York "Herald" who by questions seemed to remonstrate against the cruelty of sus pense — " is not all this an incident in every life? Was not Monsieur born with a sen tence of death upon his head? Monsieur may live to be a centenarian or he may enter Pere la Chaise as an infant. Does he know the hour of his death until it dawns? " Even the "extenuating circumstances" carry with them the torture of the galleys. In com paring the (perhaps too lenient in some cases) procedures of American or English criminal jurisprudence with these French procedures, it may be that the French " qual ity of mercy is strained," while the American quality of mercy " droppeth " too much "like the gentle dew " on the head of a malefactor.
