Frankfort laid down certain fundamental rights. Individual liberty was declared inviolable; no person could be arrested, save in flagrante delicto, without warrant; the accused's domicile and all his papers were equally inviolable, without the authority of justice. All exceptional tribunals were unlawful, and every man was entitled to the jurisdiction under which he was placed by law; all criminal procedure must be oral and public, and was to be conducted in the presence of the accused, not secretly or inquisitorially; all serious crimes and all Press offences were to go before a jury. A certain reaction in favour of older fashions set in after this declaration of rights, but many of these rights have been secured by the present Code of 1877. The accused is entitled to the assistance of counsel in the preliminary enquiry, although the latter may not appear with him, or for him, at the examination of either the accused or the witnesses. But throughout the preliminary proceedings the accused can be advised by counsel, who must be assigned by the Court if the accused is too poor; and in the final trial the accused has every guarantee of fair treatment in his defence. One important guarantee against injustice in the preliminary enquiry is that counsel for the accused has not only the right to see the record of all proceedings, but also that of interlocutory appeal to the criminal chamber of the Superior Court in case he thinks his client has been treated illegally.

As regards detention in prison before trial, excessive power is still left in the hands of the judge, who can detain the accused indefinitely if the offence is grave. A prisoner is, however, treated with all the consideration due to a man not yet found guilty; he is allowed all the conveniences which are natural to his position in life, and he is permitted to be in constant communication with his advocate. The rigour of the mise au secret of the French system has no place in the German Code. When we come to the public trial, the divergence of the German system from the French is just as important as that of the Austrian Code which we have already noticed. The preliminary enquiry is only accessory, and of very secondary importance in comparison with the final trial, when the prosecution and defence stand on equal terms; each side has every guarantee to which it is entitled, and no more. The expression employed to denote it (Hauptverhandlung) shows its importance. Oral procedure and publicity are obligatory, and all proofs are presented de novo and sifted as if they had not been heard before, just as they are in the English system. Another practice borrowed from this country is that the prosecutor and

the counsel for the defence are allowed to examine witnesses directly and not only through the President of the Court. The appeal on facts is limited to cases which have not been tried by a jury; appeal on points of law is allowed in all cases.

Space does not allow us to describe in detail the reforms which have been introduced in other Continental States in favour of the rights of the accused in all preliminary criminal investigation. It must suffice to say that Spain and several of the Cantons of Switzerland, notably Geneva, have followed Austria and Germany as regards the preliminary investigation; that Italy and Belgium have surrounded the accused with guarantees against arbitrary confinement before trial; that 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 growing conviction that the accused should have his rights, now that society is no longer in danger from undiscovered criminals and unpunished crime. It is worthy of notice that the native criminal Courts of Egypt, which since 1890 have been directed by Englishmen, are now conducted on the English system of publicity; the result of which has been a remarkable increase of certainty in the punishment of crime and a growth of general security.

Our readers on this side of the Tweed may not be aware that the French system of private preliminary investigation of crime, combined with official prosecution and a public final trial, has long prevailed in Scotland. The public officials authorised to prosecute in the High Court are the Lord Advocate and his deputies, the Solicitor-General and four Advocates-Depute. In the inferior Courts it is the Procurator-Fiscal of each county or burgh or police-court, as the case may be. Private persons who are specially wronged by the offence may also prosecute, but such prosecutions are now unknown. Under the changes made in 1887 and 1888, every person arrested is now entitled to the assistance of counsel when emitting his declaration,' as the preliminary examination is called, but counsel is not entitled to interfere further at this stage. All crimes, except murder and treason, are now bailable, but bail may be refused by a magistrate, subject to appeal to the High Court of Justiciary. The declaration of the accused now consists, in the great majority of cases, of a statement that he is guilty or

not guilty, or that he prefers to make no statement at all. It is hardly necessary to add that the preliminary enquiry into the evidence, which is made by the Procurator-Fiscal, is only accessory to the public trial, which is the all-important proceeding in Scotland just as much as in England.

One point remains to be considered. The defenders of the unreformed French system support it on the ground that it is necessary for the better preservation of order and security. We have prepared from the latest published statistics-France 1896, and England 1897-a comparative statement of results in regard to the punishment of crime in England and France. As regards the classes of important crime that are tried at assizes, we find that in France the number of persons tried is 3,550, that of persons convicted 2,404; in England the number tried is 3,344, and the number convicted is 2,509. In regard to smaller cases comparison is rendered almost impossible by the differences of categories, but we give the figures for what they are worth. In France the smaller offences which are tried by the correctional tribunals include a vast number of petty delinquencies which are punished by a simple fine, e.g. breaches of regulations concerning forests, fisheries, railways, &c. These, in 1896, numbered 188,761, and the number of persons tried was 230,568 (in many cases there being several accused), whilst the number of persons convicted was 217,926, or about 95 per cent. In England the figures given only deal with really criminal offences. The number of persons tried at Quarter Sessions was 7,871, and the number convicted was 6,386, i.e. about 81 per cent.; whilst the number of indictable offences tried summarily was 39,521, and the number of convictions 31,858 (about 80 per cent.). It appears then that, while in smaller cases the percentage of convictions is larger in France than in England, in the more important cases it is larger in England than in France; and it is just in the latter class of cases that the activity of the Juge d'Instruction' is most remarkable.

We remarked in the opening of our article that the civilised world was divided into two camps as to the merits of the two systems of criminal procedure the inquisitorial or secret system, and the accusatorial or public system. It is pretty clear which ought to win, and the British system is slowly carrying the day everywhere. Under that system, from the moment that an accused person is brought before the magistrate -whether he is released because there is nothing against him, or dealt with summarily on account of the petty nature of the offence, or sent for trial on indictment to Quarter Sessions

or the Assizes he receives equal treatment and the full right to defend himself in open public Court. But public opinion on the other side of the Channel is not yet fully ripe for so bold a system. The willingness of the French nation to submit to police restrictions on private liberty is of very old standing, and prevails still, in spite of the Revolution, and in spite of the fact that the French judges, if we may believe Mr. Bodley, hold their practice to be bad for magistrates, bad for counsel, bad for prisoners.'

We

Meanwhile, in some matters England may with advantage borrow from France. In the prosecution of crime there is no doubt that the action publique, under the direction of the Public Prosecutor, is a better guarantee for the safety and security of life and property than any system of private prosecution. have admitted the principle of the action publique by the establishment of a Public Prosecutor's Department, but the intervention of that official is rare. In the Prosecution of Offences Acts of 1879 and 1884 there is the nucleus of a national and public system. The Solicitor to the Treasury acts as director of public prosecutions, subject to the direction of the Attorney-General. It is his duty to institute criminal proceedings in crimes of the gravest character such as murder, and generally in offences which appear to him to call for prosecution in the interests of the public. But the practical outcome of the present system is very small. The annual average of cases tried by jury on indictment, for the five years ending 1897, is 11,633; if the indictable cases disposed of summarily are included, the total annual average is 53,174. Yet in the year 1897 only 414 cases were prosecuted by the Public Prosecutor. When we find that the average annual number of offences against the person reported to the police during the five years 1893-97 was 3,853, and that of offences against property with violence was 7,870, while the average numbers of cases brought to trial were only 1,500 and 2,015 respectively, it would seem desirable that the Public Prosecutor should considerably extend the area of his activity. We are slow in the matter of legal reform; but as we have acknowledged that the principle of public prosecution is sound, by actually creating a Public Prosecutor, why should we not make it more efficacious? Society is interested in the repression of all crime; why should we not place all crime in the Prosecutor's hands?

ART. XI.-1. Further Correspondence respecting the Affairs of Swaziland. August 1890. (C. 6200.)

2. A Convention between Her Majesty and the South African Republic for the Settlement of the Affairs of Swaziland, with Correspondence relating thereto. November 1890. (C. 6217.) 3. Further Correspondence respecting the Affairs of Swaziland. November 1893. (C. 7212.)

4. Correspondence relating to Certain Native Territories situated to the North-East of Zululand. June 27th, 1895. (C. 7780.) 5. Further Correspondence relating to Certain Native Territories situated to the North-East of Zululand. August 1895. (C. 7878.)

6. Paul Kruger and his Times. By F. Reginald Statham. London: T. Fisher Unwin. Boston: L. C. Page and Co., 1898.

7. South Africa. By George M'Call Theal, LL.D. Fourth Edition, London: T. Fisher Unwin, 1899. (Story of the Nations.)

8. Impressions of South Africa. By James Bryce. Third Edition. London: Macmillan and Co., 1899.

9. The Transvaal and the Boers. By W. E. Garrett Fisher. London: Chapman and Hall, 1900.

10. The History of South Africa to the Jameson Raid. By C. P. Lucas. Oxford: Clarendon Press, 1899.

IN

N the last number of this Review we dealt at some length with the situation in South Africa, and attempted to show that the matter at issue between the British Government and the South African Republic was far wider than the questions involved in the treatment of the Uitlanders. The events which have happened since the article was written have amply justified what we then said, and have clearly shown that what was at stake was the whole position of Great Britain in South Africa. We propose now to review a certain phase of the policy of the Republic between the Convention of London and the unfortunate events of 1895-6. We have no intention at present of entering on a critical examination of the diplomatic controversy which immediately preceded this war; that is a task which may be discharged when the proper time comes; but we wish to direct the attention of our readers to certain aspects of recent South African history of which too little notice has been taken, owing to the predominant interest aroused by the events in the interior of the Transvaal.

We are the more inclined to believe that this will be of use to our readers, because a study of the various works which