Questiions.

authorize the introduction of other evidence of the contents? If so, what are the rules of practice by which the fact of refusal is established?

20. What proof is required of the execution of any written instrument? When there are attesting witnesses to the execution of the instrument, must all or any of them be produced? In case of the death of all or any of the attesting witnesses, is proof of their hand-writing required? Does the age of the instrument make any, and if so what, difference in the mode of proof? Is there any, and if so what, period after which execution of the instrument is presumed without proof? 21. Are there any, and if so what, rules peculiar to the proof of acts of Courts of Justice, or of other bodies or persons acting in the execution of any specific authority?

22. Can evidence of the character of the party accused be given for or against him? If so, at what stage of the proceedings? May such evidence be contradicted? Can evidence of particular acts of good or bad conduct be given in proof of character?

23. Can a witness refuse to answer a question put to him on the ground that the answer may subject him to criminal liability? Or that it may subject him to civil liability? Or that it may discredit him?

24. Can evidence be given of the bad or good character of a witness? If so, is such evidence confined to general reputation, or may it introduce particular facts? To what extent is such evidence, if given, allowed to be met by opposite evidence?

25. Can a witness be asked, with a view of impeaching his present evidence, what he has formerly said? If so, can evidence be given to contradict his answer?

26. Are there any general rules as to the number of witnesses necessary for the establishment of a particular fact?

27. Are witnesses paid for the expense to which the inquiry has put them? Or for their time? If so, from what fund?

GUERNSEY.

ANSWERS TO THE FIRST SERIES OF QUESTIONS.

The Answers of Peter Stafford Carey, Esq., Bailiff of the Island of Guernsey, to the First
Series of Questions.

I. Twelve months ago I left the English bar to take upon myself the office of Bailiff of this Island: to which I had been appointed by Her Majesty, and I have since been engaged in the discharge of my official duties.

GUERNSEY.

Answers to
Questions.

SERIES I.

Bailiff,

II. All criminal jurisdiction in this Island is exercised, and, from the earliest ages of which P. S. Carey, Esq., we have any authentic_account, has been exercised, by the Royal Court. Which, in ancient documents, is styled in Latin, Curia Regis; in French, "La Cour de nostre Seigneur le Roy." The Royal Court consists of the Bailiff and twelve Jurats, and is supposed to have assumed its present form in the time of King John.

Its juri sdiction extends over offences of all kinds, except treason, coining and laying violent hands on the Bailiff or a Jurat in the execution of his duty.

In the excepted cases above enumerated, the Royal Court has cognizance of the offence, but has not the power of awarding the punishment. The evidence is taken, the Court decides whether the accused is Guilty or Not guilty: and, if Guilty, the case is remitted for judgment to the Sovereign in Council.

So far as regards criminal matters, the Royal Court may be considered as comprehending within itself two distinct tribunals, standing to one another in the same relation as the police court and the assize court in England.

In whatever capacity the Court sits, the Bailiff presides. It is however to be understood that he has the power of appointing a deputy-the Lieutenant Bailiff, who, in the absence of the Bailiff, occupies his place, and is invested with all his powers.

The Lieutenant Bailiff has always been selected from among the Jurats; and, in the presence of the Bailiff, his power as Lieutenant Bailiff is entirely suspended, and he acts merely as Jurat. The business of the Bailiff is to conduct the proceedings, to lay the case before the Jurats, and to take their opinions. If the Jurats are equally divided, the Bailiff has a vote, but not otherwise.

The ordinary and less solemn business of the Royal Court is transacted before what is called "La Cour ordinaire."

This Court consists of the Bailiff and at least two Jurats.

In order to provide for due and regular attendance on this Court, the twelve Jurats make the following arrangements. The year being divided into three terms, they distribute themselves into three divisions, so that there are four Jurats especially belonging to each division of the year, or quarter, as it is somewhat inaccurately termed. And from this circumstance the Cour ordinaire is very frequently called "La Cour du Quartier."

Though two Jurats are sufficient to constitute the Cour ordinaire, it more frequently happens that three or four are present.

One of the functions of the Cour ordinaire is to act as a court of police; and for this especial purpose the Cour ordinaire sits every Thursday.

The more solenin judicial business of the Royal Court is reserved for the full Court, "La Cour en corps." It is not however necessary that all the twelve Jurats should be present. Seven form a quorum.

This is the Court by which all indictable offences are tried.

This Court sits on the Saturday during certain periods of the year. And, even during the time when the Courts are said to be shut, if there is a prisoner in gaol, it is usual for the Court, at his request, to assemble to try the case.

The two tribunals, therefore, which (as far as criminal jurisdiction is concerned) the Royal Court may be considered to comprehend within itself, are

1. La Cour ordinaire, sitting as a Police Court.

2. La Cour en corps, sitting as a Court for the trial of indictable offences.

The first of these Courts, consisting of the Bailiff and at least two Jurats; the other, of the Bailiff, and from seven to twelve Jurats.

It is right to add, that the Royal Court is assisted by the Crown Officers, i. e. the Procureur and the Controller. The duty of the Crown officers is similar to that of the Avocats Généraux in France, before the Revolution. In the Cour en corps the crown officers are constituent members of the Court. The Court cannot be opened unless one of them at least is present. In criminal proceedings no act of Court can be passed in their absence, nor any judgment of the Court awarded until they have given the Court their advice-leurs conclusions. A sentence would be irregular if it did not appear that the Crown officers had been heard: hence the usual form, "Ouies les conclusions des officiers de la Reine."

In the Cour ordinaire sitting as a court of police, the Court cannot proceed to pronounce summarily without having heard the conclusions of the Crown officers. Where the accused party is to be committed for trial, the practice is for the Crown officers to be present; and, in point of fact, they take an active part in the proceedings, and offer their advice to the Court as

GUERNSEY.

Answers to
Questions.

SERIES I.

in other cases.
But it would appear that their so doing is not essential to the validity of the
proceedings. And in the act of Court no mention is made of their conclusions having been
heard.

III. The authorities principally relied upon, in the discussion of questions arising upon the
Criminal Law, are—

1. "Terrien's Commentaries." This work is in itself nothing more than a treatise on the P. S. Carey, Esq., ancient customary law of Normandy; it is, however, to this Island something more than a text book, so much of it as is confirmed by the “ Approbation" having the force of law.

Bailiff.

2. "Les Remarques de M. Le Marchant sur l'Approbation des Loix;" which may be considered as a commentary on the text of Terrien, so far as it is applicable to this Islan1.

3. The ancient criminal procedure of Normandy, as we find it in Terrien, being very similar to the procedure used in France down to the time of the Revolution, on this subject, the old French authorities are referred to, particularly Pothier, " Traité de la Procédure Criminelle;" and, occasionally, Jousse," Traité de la Justice Criminelle;" De la Combe, "Traité des Matières Criminelles," etc.

4. In questions relating to criminality and the nature of offences, the English text writers are chiefly relied on, particularly Russell and Archbold.

IV. When it is suspected that any one has committed an offence, the first step taken is for the constable either to take him into custody, or to warn, that is, to summon him to appear in Court.

If the constable takes him into custody, it is his duty to report it to the Bailiff and the Crown officers. The Bailiff, after consulting the Crown officers, if necessary, directs whether the accused shall be kept in custody till the next sitting of the Cour ordinaire or not.

If not, the accused is set at large and required to appear in Court.

There is, at this stage of the proceedings, no power to take bail. The accused cannot be let out on bail except by the authority of the Court.

V. The accused is brought before the Cour ordinaire.

This court exercises a summary jurisdiction over cases of assault, breach of the peace, disor derly conduct, disputes between masters and apprentices, and a variety of minor offences, including petty thefts.

The utmost punishment this Court can award is imprisonment for one month; the whole, or any portion of which, may be in solitary confinement, and on bread and water.

This Court has also jurisdiction, in case of the breach of any ordinance of the Royal Court, where the penalty imposed by the ordinance is a fine not exceeding thirty livres tournois.

VI. Where there is no exercise of summary jurisdiction, a preliminary investigation takes place before the Cour ordinaire. The investigation is in private. The witnesses, including those summoned on the part of the accused, are called in one by one, and examined separately on oath. The Crown officers are present during the examination, and, after having heard the witnesses, they prepare the draft of an indictment, or acte d'accusation, according to the facts deposed to. The accused is then called in; the indictment is read over to him; and, after being warned that he is not obliged to answer unless he chooses and that whatever he says will be produced on the trial, he is interrogated by the Court. The questions put to him and his answers thereto are severally taken down by the Greffier. The first question put to him is, whether he is" Guilty" or "Not guilty." After this he is interrogated upon the facts that have been spoken to by the witnesses.

He is also at liberty to make any further statement that he pleases. It may readily be supposed that, if he has in fact committed the offence, any statement he may make will be likely to criminate him. But, on the other hand, if he is innocent and has a true story to tell, his story, so told in answer to the inquiries of the Court, without his having heard the evidence against him, cannot fail to have great weight: this gives a great, and certainly not an undue, advantage to an innocent man, and is of particular importance to him, where the story he has to tell, as is not unfrequently the case, happens to be otherwise incapable of proof. Besides which, if it comes out from his statement that there are other persons who have any evidence to give, they are immediately sent for by the Court. I feel the more called upon to offer these observations, as the practice of interrogating the accused is one which, as an English lawyer, I was, on undertaking my present office, nowise prejudiced in favour of.

The interrogatory being concluded the public are admitted. The practice is for the Crown officers to offer their opinion to the Court with respect to the course to be pursued. The Court thereupon pronounces its decision, following in general, but not necessarily, the sugges tions of the Crown officers. If there appears to be sufficient ground to put the accused on his trial, the sentence of the Court is, in effect, that the Crown officers do proceed against him, and that he be committed to prison. If the Court deems it to be a bailable case, the sentence of the Court fixes the amount of the bail. And, where the charge brought against the accused is not a serious one, the Court is content to take his "Caution Juratoire ;" that is to say, is not required to go to prison, provided he will undertake on oath to appear in Court to answer the accusation. The sentence of the Court is reduced into an Act and entered on Record. If there is no sufficient evidence to warrant a trial, the accused is dismissed. In this case there is no Act of Court, no record made of the proceeding.

he

I may here add, in anticipation of the 27th question, that, until the interrogatory of the accused has been taken, the Court has the power, without any act of Court being entered of record, to adjourn the proceedings to a subsequent day, the accused being still retained, if necessary, in the custody of the constable.

The place in which the constables detain the persons who are in their custody is within the walls of the prison, but is nowise under the control of the gaoler.

After the interrogatory has been taken, the mode of adjournment is altogether different.

There must then be an Act of Court, whereby, unless admitted to bail, the accused is committed to prison in order that further information may be obtained.

VII. Where the jurisdiction is not of a summary kind, the trial takes place before the Cour en Corps, consisting of the Bailiff and from seven to twelve Jurats assisted by the Crown officers. The functionaries who sent the party to trial are capable of acting, and very generally do act, as members of that Court; and, in particular, it is the business of the Bailiff, after having presided at the committal, to preside also at the trial.

VIII. The charge having been brought before the Court by the constable, and the Court having ordered a prosecution, the proceedings are instituted and carried on by the Crown officers, and in their name.

The Crown officers have no power of causing the proceedings to be abandoned. They cannot take any step analogous to the entering of a "Nolle prosequi."

But I apprehend that the Court has the power, on the application of the Crown officers, to cause the proceedings to be abandoned. Where proceedings are ordered to be abandoned on grounds affecting the merits of the case, I apprehend that the Court would not authorize the institution of a second accusation for the same offence. Where the proceedings are allowed to be abandoned on the ground of their being irregular, the original charge may be prosecuted in an amended form..

IX. The charge against the party accused is put into a definite form, in writing, before his interrogatory is taken. After this it is not competent to the Crown officers to vary the charge either in form or substance. If any alteration is requisite, the course is for the Crown officers to apply to the Court, before the trial comes on, for leave to abandon the proceedings in order to commence afresh. The original indictment being thus set aside, an amended indictment may be framed: and upon this fresh indictment the interrogatory must be taken anew, the party charged being at liberty to model his defence as he thinks fit. On some occasions, however, the Court, on the application of the Crown lawyers and after calling on the prisoner to shew cause, has, in matters not material to the merits of the case, allowed amendments to be made in the charge.

X. XI. The same functionaries are the judges both of law and fact; and, whatever may be the nature of the defence set up by the party charged, the mode of proceeding is the same. The only difference will be in the line of argument adopted by his advocate.

XII. XIII. There is no reason why the party charged should confine himself to one line of defence to the exclusion of any other.

For instance, in a recent case where a public officer was accused of embezzlement, Péculat, his advocate argued

1°. That by the law of the Island Péculat was not an indictable offence.

2o. That the indictment was bad, the technical term Péculat not being employed.

3°. That the facts alleged were not proved.

XIV. The party charged is entitled to the assistance of one advocate, selected by himself; and this, whether he is or is not able to defray the expense of legal assistance.

On the first Criminal Court day after he is committed for trial (unless some earlier day is fixed by the Court), the party charged is produced in Court; and there, the indictment being read over to him, he pleads Guilty," or "Not Guilty," and makes choice of his advocate. Occasionally the party charged has been allowed to obtain the assistance of a second advocate. But one only is allowed to address the Court.

XV. The witnesses required at the preliminary investigation before the Cour ordinaire, whether for the prosecution or for the defence, are summoned by the constable.

The witnesses required on the trial, whether for the prosecution or for the defence, are summoned by the Crown officers.

In either case a witness may be required to produce documentary evidence.

If a witness does not obey the summons, he is liable to fine or imprisonment, as for a contempt.

No payment is made to witnesses in respect of their attendance at the investigation before the Cour ordinaire.

The witnesses summoned on the trial, whether for the prosecution or for the defence, are raid by the Crown.

It is to be observed, however, that, if the party charged is convicted, he is sentenced to pay

costs.

XVI. With respect to the stage in the above series of proceedings at which evidence is first received, it will be seen, from my answer to the 6th question, that, at the very commencement of the proceedings, when the charge made by the constable is gone into before the "Cour ordinaire," the witnesses are heard, on oath, vivâ voce, in presence of the Court, the Crown officers, and the Greffier.

It has of late years become the practice to allow some other officers of the Court to be present at the private investigation: but they have no functions to perform there; and I think it would be better if the practice were discontinued.

Before I proceed to answer the questions next in order, it may be well to observe that there are two kinds of trial.

The one is denominated by Terrien, "Le Procès Extraordinaire."

The other, "Le Procès Ordinaire."

At the present day, the former (Le Procès Extraordinaire) is more usually designated as a proceeding "Au grand Criminel."

The latter (Le procès ordinaire) is more usually designated as a proceeding " Au Criminel" simply, or sometimes, to make the contradistinction more marked, "Au petit Criminel."

I shall have occasion to point out hereafter the cases to which each of these kinds of trial

GUERNSEY.

Answers to
Questions.

SERIES I.

P. S. Carey, Esq.,
Bailiff.

GUERNSEY.

Answers to
Questions.

SERIES I.

more particularly applies: at present it is enough to state that the proceeding Au grand Criminel is deemed the more solemn, and reserved for the more serious offences.

The following is an outline of the proceeding Au grand Criminel.

The party accused having pleaded to the indictment and chosen his counsel, a day is fixed for taking the evidence on the part of the prosecution.

The evidence is taken before the Cour ordinaire, sitting in private. The witnesses are introP. S. Carey, Esq., duced one by one, sworn and examined. Every question and answer is separately taken down by the Greffier. Twelve witnesses only are allowed.

Bailiff.

The witnesses having been heard and their evidence taken down, they are on a subsequent day summoned again before the Cour ordinaire (sitting in private as before), for the " Récolement." Each of them severally has his evidence read over to him, and is asked whether he has anything to add or to alter.

His answer is taken down, and added to the evidence previously taken.

The next step is the "Confrontation." The witnesses and the accused are warned to attend. The summons given to the accused contains a list of the witnesses with whom he is to be confronted. Before the confrontation he is entitled to a copy of the evidence. At the confrontation, the accused being in Court together with his advocate, the witnesses are called in one by one. The evidence of each is, in his presence, read over to the accused. Thereupon the witness is cross-examined; and the cross-examination is taken down by the Greffier in the same manner as the examination in chief.

The confrontation being over, the accused party states whether he wishes to have any witnesses called for the defence. If he wishes to have witnesses called, he must state what facts they are to prove, and must give the names of the witnesses. If the facts offered to be proved are deemed irrelevant, the Court does not allow the examination of witnesses. If the facts are deemed relevant, the witnesses named by the accused, not exceeding twelve in number, are summoned by the Crown officers.

On the day for which they are summoned, their evidence is taken down in writing in the same manner as the evidence of the witnesses for the prosecution.

They are examined by the counsel for the accused, and cross-examined by the Crown officers.

The evidence being now completely taken, and copies of it having been given both to the Crown officers and the counsel for the accused, the next step is to produce it before the Court on the trial. This takes place in open Court before the Cour en Corps. The interroga tory of the accused and the depositions of the witnesses are read over. The whole of the evidence being thus gone through, the counsel for the accused addresses the Court. And it is to be observed that he has to enter upon the defence without the case having been in any way opened by the Crown officers, so that he has not heard what are the points mainly relied on in support of the accusation.

After the defence, the Crown officers are heard. Their business is to state the result of the evidence, to advise the Court on matters of law, and to suggest the sentence which they deem to be suited to the case. The Bailiff then sums up the case, and collects the opinions of the Jurats the opinion of the majority constitutes the sentence of the Court.

I now come to the other mode of proceeding, the "Procès Ordinaire" of Terrien, the proceeding "Au Criminel," as it is now usually termed.

It will be observed that, down to the time when the accused chooses his Counsel, in whichever way he is to be tried, the mode of proceeding is precisely the same.

If he is to be tried au criminel, in the ordinary way, the trial takes place in open Court, before the Cour en Corps, on the first Criminal Court day after the accused has chosen his counsel. The witnesses both for the prosecution and the defence are summoned by the Crown officers. Not more than twelve witnesses can be tendered on each side.

All the witnesses on each side being called, évoqués, appear together at the bar. Any objection to the admissibility of witnesses is now to be taken. Among others, it is a sufficient objection that a witness comes forward without having been summoned.

The Court having disposed of the objections to admissibility, the oath is administered by the Bailiff to the whole array of witnesses admitted to give evidence, on either side.

The interrogatory of the accused is then read by the Procureur. After this the witnesses are heard; the witnesses for the prosecution first, and afterwards those for the defence, each witness being subject to cross-examination.

From this point, the proceedings are carried on as "au grand criminel." The counsel for the accused is heard first; and then the Crown officers give their conclusions; after which the Court proceeds to award judgment.

I now return to the questions, and proceed to answer them in numerical order.

1st. As they affect the proceeding "au grand criminel."

2nd. As they affect the ordinary proceeding "au criminel."

1. As to the proceeding au grand criminel:

Applying the 16th question to the evidence taken subsequently to the committal. Evidence is first received after the prisoner has pleaded and chosen his counsel. It is taken down by the Greffier in the shape of question and answer before the Cour ordinaire sitting in private. XVII. The party accused is allowed at the confrontation to hear the evidence which has been taken against him, having before the confrontation received a copy of it.

XVIII. The confrontation being completed, the accused names his witnesses, who are summoned for a subsequent day by the Crown officers.

XIX. At the confrontation, as the evidence of each witness respectively is read, the accused party is allowed to question that witness to any extent.

XX. Fresh evidence for the prosecution cannot be taken after the confrontation; consequently