페이지 이미지
PDF
ePub

the French Code. The present Criminal Code, introduced in 1859 after the changes made by the Treaty of Villafranca, is unfortunately based on the French law. Dr Mittermaier deplores that the Italian Government did not rather adopt as their model the Maltese Criminal Code of 1856, which is founded on the Scotch system, and has been found to work so well. The Italian Government itself recognises the necessity of an amendment of the Criminal Law; and first, in 1861, some improvements were made.

And in 1863 and 1864 several reforms were projected, though they have not yet been carried into effect.

In establishing the Italian Jury Court on a firm basis, many serious difficulties have to be encountered. “Every one,” says Dr Mittermaier, “who has any acquaintance with the Italian people, is aware of what a strange sympathy exists among them for persons accused of crime. An offender whose apprehension is sought, knows that he may reckon pretty well on receiving from the people every assistance to escape ; while the citizens do their best to evade the duty of acting as witnesses, and when brought into Court, give their evidence, as a general rule, in favour of the accused." This he attributes to the way in which prosecutions for political offences were carried on under former Governments ;to the use of spies, and even bribery, being resorted to, in consequence of which the people came to regard as martyrs those pursued by Government;—to the want of proper means of education, the baneful influence of the clergy, teaching that the most heinous sin, even the breaking of an oath, may be atoned for by pious exercises, and the want of desire among the citizens for participation in public affairs. Notwithstanding this gloomy picture, Dr Mittermaier does not endorse the unfavourable judgment of the first Napoleon, founding his hopes on “the wonderful patural endowments of the Italians, their intellectual ability, their quickness of apprehension, and capacity for profiting by instruction.” But we must remember that it is tha solid, and not the showy qualities of mind, which contribute to the successful discharge of the functions of a jury. not conclude without expressing to the author our admiration for the zeal and ability displayed in the production of this most valuable contribution to legal literature--the most complete repertory of information on the subject of jury trial which we possess.

We can

* The scheme of the code was, we understand, submitted for revision to Mr. Jameson, now Sheriff of Aberdeenshire, and materially altered in consequence of suggestions made by him.

JURY TRIAL IN THE DAYS OF EDWARD I.

We have, in another article, given a German view of the advantages and defects of our present system of trial by jury. It may amuse our readers to compare with our modern feelings, the earliest strictures on that “palladium of our liberties” with which we happen to be acquainted. These are contained in an Anglo-Norman ballad, of the reign of Edward I., the author of which seems to have had excellent opportunities of judging of the capacity of the jurymen of his day. It seems to us to be a singularly striking and picturesque expression of individual feeling, and probably of popular feeling also. We extract a translation from the “ Janus," a long-forgotten Edinburgh Miscellany, in which the writers are anonymous.

But it is known that Wilson and Lockhart were the principal contributors; and it is impossible not to recognise in the ease and fluency, the simplicity and vigour of the following lines, the accomplished hand of the translator of the Spanish ballads :

TRANSLATION.

'Tis forty pennies that they ask, a ransome fine for me;
And twenty more, 'tis but a score, for my lord sheriff's fee :
Else of his deepest dungeon the darkness I must dree;
Is this of justice, masters ?—Behold my case and see.
For this I'll to the greenwood, -to the pleasant shade away ;
There evil none of law doth wonne, nor harmful perjury.
I'll to the wood, the pleasant wood, where freely flies the jay;
And, without fail, the nightingale is chaunting of her lay.
But for that cursed dozen, God show them small pitie;
Among their lying voices they have indicted me,
Of wicked robberies and other felonie,
That I dare no more, as heretofore, among my friends to be.
In
peace

service

my Lord the King hath ta’en, In Flanders and in Scotland, and Gascoyne his domain ; But now I'll never, well I wiss, be mounted man again, To pleasure such a man as this I've spent much time in vain. But if these cursed jurors do not amend them so, That I to my own country may freely ride and go,

and war my

The head that I can come at shall jump when I've my blow,
Their menacings, and all such things, then to the winds I'll throw.
All ye who are indicted, I pray you come to me,
To the green wood, the pleasant wood, where's neither suit nor plea;
But only the wild creatures, and many a spreading tree;
For there's little in the common law but doubt and misery.

If meeting a companion, I show my archery,
My neighbour will be saying, “ he's of some company-
He goes to cage him in the wood, and worke his old foleye";
For men will hunt me like the boar, and life's no life for me.

If I should seem more cunning about the law than they,
“Ha! ha! some old conspirator, well train'd in tricks," they'll say;
O wheresoe'er doth ride the Eyre, I must keep well away :
Such neighbourhood I hold not good, shame fall on such I pray.

I pray you all, good people, to say for me a prayer;
That I in peace may once again to my own land repair :
I never was a homicide, not with my will I swear,
Nor robber, Christian folk to spoil, that on their way did fare.
This rhyme was made within the wood, beneath a broad bay-tree;
There singeth merle and nightingale, and falcon soareth free.
I wrote the skin, because within was much sore memory,
And here I fing it by the wood, that found my rhyme may be

Correspondence

ACCOMMODATION OF JURORS.

(To the Editor of the Journal of Jurisprudence.) Sir, I fear the subject of this letter can hardly be interesting to Students of Jurisprudence, at the same time, if a practical inconvenience to parties engaged gratuitously in the administration of Justice be capable of remedy, I trust you may think it worth while to call public attention to it.

I refer to the accommodation which is provided for Jurymen who are cited to attend the Criminal, and particularly the Circuit Courts of the country. The existing arrangements in civil causes do not seem to afford occasion for remark, and may safely be left under charge of the interests which the parties on both sides have to see to the comfort and convenience of those with whose deliberations they have so much concern. But there

is no doubt that the practice in criminal trials is very much in need of amendment. In Edinburgh the evils complained of do not bulk sufficiently to be appreciated, because trials in the High Court of Justiciary seldom extend beyond a single day, and it is comparatively easy to determine when and to what extent the services of Jurymen will be required. But the case is different in large Circuit Towns, where the proceedings continue for several days, and it is impossible for the Court to exercise much indulgence without incurring the serious risk of retarding business, and even of greater evils. That the Judges who attend on Circuit do everything in their power to provide facilities for the convenience of Jurymen is acknowledged. According to the present practice, and we have immediately in view the prac tice in Glasgow, the one hundred Jurymen who are cited to the Circuit are kept moving from one Court to another, much to their own personal discomfort, and to the interruption of the proceedings, sometimes for as long a period as a week, and not unfrequently for as many as twelve hours in a day. Now for the remedies, 1. Might not one set of Jurymen be cited to serve in one Court, and a different set in the other? A great deal of unnecessary noise and confusion would thereby be avoided. 2. Might not the Jury have a room to themselves besides that in which they are sent to deliberate when empanelled to try a cause? They are the only class of persons connected with the proceedings of the Court who are subjected to the indignity of having no retiring room. The Judges have one—so have the counsel—so have the witnesses. Why should this be so? In a large mercantile community like that of Glasgow the evil assumes a grave aspect. If ampler accommodation than exists at present were provided Jurymen might attend to the more urgent calls of their business in the intervals when they are relieved from attendance in Court; and we have reason to know that this indulgence, which meanwhile is impracticable, would be hailed as a great privilege. Surely those whose valuable time is given gratuitously to the public are deserving of all consideration.— I am, &c., Ž. A. W.

THE MONTH.

The late Professor A. Montgomerie Bell.- The Legal Profession and the University of Edinburgh have sustained a serious loss in the death of Alexander Montgomerie Bell, Esq., W.S., Professor of Conveyancing, which took place on the 19th of January. The chair which he filled had, when occupied by such men as Macvey Napier, and Allan Menzies, come to be recognised as of high importance in training the legal practitioners of Scotland. To these accomplished lawyers Mr Bell proved no unworthy successor. He was a distinguished student at the University of Glasgow, and retained through life his relish for literary pursuits. Recommended by his well-known ardour in legal study, his skill in conveyancing, matured by long experience, as a partner of one of the leading business firms of Edinburgh, and by his sound judgment, and high sense of honour, he was elected in 1856 by his brethren of the Society of Writers to the Signet, to the vacant Professorship. Having thus obtained, as he used to express it, “ the prize of his life,” he set himself with the greatest zeal to make his class the means of usefulness he considered it fitted to be—and in his Lectures the principles of the Law of Scotland as applicable to the transfer of property, were expounded with the utmost clearness, and the most anxious care that his students should, in every step of practical business, trace up to the fountain-head of principle the rules on which they were taught to proceed. His lectures, however, were but a part of the teaching afforded to his class; the periodical examinations, in the conduct of which no labour was spared, were considered by his students as a most valuable part of their training.

Hence, too, it was that when in 1861, he was attacked by that disease of the chest, under the effects of which he ultimately succumbed, he was able, though his Lectures were read for him for several Sessions by friends, to keep the command of the class, by adjusting the questions, and revising the examination papers. More recently, his health had been so far regained that he was able, besides attending to business in his chambers, to preside in the class-room, and he continued to do so until within a week before his death. Although, except in the business of his Chair, he avoirled coming before the public; he took a lively interest in, and held decided opinions on all public questions. through life, a consistent member of the Liberal party in politics, and was for many years an active and earnest elder of the Free High Church, His premature removal, at the age of 56, will be mourned by a large circle of private friends, to whom he was endeared by the charm of amiable and winning manners, tempering an almost sternsense of the right and just, and by a quiet humour enlivening the sagacious counsels of the man of business.

He was,

The Fore-Shore.—We direct the attention of our readers to an interlocutor pronounced by Lord Jerviswoode on the meeting of the Court after the Christmas recess, in the case of the Lord Advocate against Colonel Maclean of Ardgour. The action involves the claim which has recently been advanced by the Crown to a right of property, jure coronce, and as part of its hereditary revenues in the Fore-shore round Scotland, to the

« 이전계속 »