The Sun.
London, England, 1845-11-03 00:00:00

NGLISH AND GERMAN JURIS•
PRUDENCE.

We are accustomed to think of our mode of criminal
jurisprudence as the most perfect in the World; and one
great reason of o'ir doing so doubtless is, that few of us
are acquainted with any other. Bred up amidst the
peculiar forms and principles of our courts of law, we
not only admire what is really admirable and excellent
in them, but include a great deal that is mischievous and
absurd.
Society can accustom itself to anything. Our fore-
fathers used to view dozens of men strung up at the
Old Bailey and Tyburn almost with indifference, and yet
did not consider themselves more unfeeling than our-
selves, who now shudder at and declaim against a solitary
execution.
It is only by looking abroad, out of their own narrow
circle, that men can perceive the defects of their own
system; and if modern nations, like those of old, studied
each other's laws a little more, it would be better for all.
The particular in which one excels is that in which
another is most defective; and again, this latter has
some counterbalancing advantage which might be well
borrowed by its neighbour.
It is impossible to read an article in the Edinburgh
Review on the Penal Jurisprudence of Germany with-
out being struck by the curious contest between the
mode of trying criminals in that country and in this. In
what they excel, we are most deficient, and vice versa.
Whether both could not take a lesson from each other,
is a question we do not venture to answer. But if all
other sciences may be improved by the mutual efforts of
men in different countries, why not that of criminal
jurisprudence ?
In England, the great rule in bringing, as we term it,
a criminal to justice, is to do so without any assistance
on his part. From the moment that a charge is made
against a man, he is warned of the situation in which he
stands; he is put upon his guard. So far from bring
led into anything which may furnish proof against him,
he is made fully acquainted with his situation ; with the
amount of evidence which will be brought against him ;
and should he be disposed to make a clean breast of it,
and confess, he is warned of the consequences—advised
to take advantage of the chances of escape which the
law affords; and this is often done by the judge himself;
and if the man escape, so far from being a source of re-
proach against the laws and their administrators, which
have thus defeated their own object, it is a cause of
triumph, and people go away admiring the impartiality
of the judge, who, acting indeed as the prisoner's
counsel, has helpcd him to escape from the penalties of
his misdeeds.
There is, indeed, in England a species of sympathy
between the criminal and society, which, except in very
flagrant cases (as, for instance, that of Belaney), tempts
society rather to rejoice at than lament his escape from
the clutches of the law.
There is no difficulty, we think, in finding in what
this sympathy has originated. It was the original seve.•
rity of our laws which made them unpopular ; which
enlisted public feeling on the side of the criminal as the
injured party; which made the judge anxious to inter-
pose his aid in favour of the weaker side, and raise all
the defences which the laws themselves furnished in their
ietricacy against their own barbarity. "It is a penal
statute, and ought therefore to be strictly construed"
—that is, ought to be twisted, if possible, from its plain
and obvious meaning—defeated by any means that chi-
canery can suggest— is a phrase we still hear constantly
repeated, and without wonder : for we know what it
means; though a foreigner, who thought that the degree
of punishment was accurately proportioned in this
country to the offence, might feel puzzled to know why
one law should be more strictly construed than another.
In Germany quite the opposite rules in the trial of
criminal,. There, it is seldom that the extreme punish-
ment is inflicted ; but it is scarcely possible that the
criminal can altogether escape. In the infliction of
punishment the law is most careful; the fact of guilt
must be made as clear as daylight ere the judge pro-
ceeds to judgment. Proof which with us would be
conclusive is rejected by them as insufficient ; and with
the degree of certainty which their laws demand for the
coodemeation of a prisoner, it seems almost impossible
that, with common prudence on his own part, he ever
should be convicted ; for the law is scarcely satisfied
unli ss he confess his guilt, and even then it is not always
quite satisfied.
What, then, are the means by which this point is to
he arrived at ? They are precisely those which the
English law rejects, and at which we are accustomed to
look with abhorrence. Our forefathers would coolly see
men sent forth in dozens to perish on the gallows-tree,
because they were found guilty on " good evidence "
(such as footmarks, &c.) of stealing a sheep, or a
horse, or a purse. But if there had been any talk
of a private examination, with the view, by rigid
questioning, to extort a confession, what a hubbub would
there nut have been ! Our liberties would have been
endangered ; our laws and constitution overthrown !
. Yet it is by this means that the German law, so careful
of life, proceeds against a criminal. It looks upon him
as the party who, knowing most of the crime, is the
best to seek information from. It seizes upon and
subjects him to a species of mental torture, which, if
really guilty, it is almost impossible to pass through
scathless, but which, if innocent, furnishes him with the
most effectual means of proving it. The suspected
criminal is not, as with us, acquainted with the charge
made against him ; but he is asked if he knows the cause
of his apprehension ? It ho pleads ignorance, he is
removed, and on the next examination the question is
repeated. If the same answer be given, the nature of
the charge is partly disclosed ; and at each step, the
puke of the patient is, as it were, felt, to ascertain how
far he is sound or corrupt. None of those shackles by
which legal procedure is bound in England exist in
Germany. No technical objection can be raised ; there
can be no flaw in the indictment. A crime has been
committed ; a person is suspected. Has the crime been
committed ?—ls the person charged the criminal ?
These are the questions proposed, and to answer them
satisfactorily no time or trouble is spared, and no impee
dimen• s are raised. The accusation is not lightly enter-
teined ; the witnesses themselves are subjected to a
suecies of trial ; that is, their character is sifted, and
according as it is good, bad, or indifferent, so does their
testimony weigh against the accused. It is either in-
competent, suspicious or sufficient : and the testimony
of two suspicious counts for one sufficient, and that of
two sufficient (or, consequently, four suspicious) wit•
messes amounts to proof. The evidence of the accused
is weighed in the same way, and it is for the examining
judge to cast up this sum of evidence and submit the
result to a superior court, which pronounces judgment,
subject, however, to revision by a yet superior tribunal.
The great object of the German judge seems to be,
that which the English one most avoids previous to
trial—confession. We wish for confession to confirm
judgment ; the Germans look to it as the best ground
of judgment ; and it is seldom that, even in the most
difficult cases, confession is not obtained: and we are
acquainted by one of the best authorities (Feuerbach
—himself a judge and the author of a most learned
work on the Penal Jurisprudence of Germany) with the
grounds on which it is made:—
" First, remorse ; the stings of an irritated conscience,
and the desire to soothe them by the sort of amends
which a full confession affords. This, however, he adds,
Experience shows to be one of the rarest phenomena in
criminal procedure. Fur one criminal who confesses
from no motive but remorse, there are a thousand who
scarcely know that such a feeling exists. Secondly—
and this, he says, is the prevailing cause—the prisoner's
inability to resist or elude the cross-examination
of the judge. lie cannot reconcile the inconsis
tencies of his narration ; he is ashamed to persist
in an evident lie ; he is fatigued by having
to invent stories which the judge immediately proves
to be falsehoods; he knows that every such detection
sinks him lower and lower in the estimation of the
judge ; and he hopes that by frankness he may obtain
some approach to sympathy. A third and very fre-
queni. source, is the desire to escape from the agony
of suspense—an agony which, in the solitary unem
ployed days and sleepless nights of a Go rman pri-
son, may often be severer than any punishment short
of death. A fourth is stupid sluggish despair. The
prisoner has not the spirit or the energy which are ne-
cessary to play out a losing game. He gives himself up
at once for lost, and saves himself the trouble of a de-
fence. And, lastly, every prisoner feels that he is in a
great measure in the power of the examining judge.
He knows that the examiner can aggravate or relax the
rigour of his present imprisonment, and that his report
most influence the final sentence of the court, and may
decide the question of pardon. Whether he make a
confession or not, he expects to be convicted—he sees
the judge's eagerness to obtain one, and he yields in the
hope of propitiating him."
It is, indeed, a contest of skill and perseverance
between the judge—the inquisitor of crime—and the
prisoner, the perpetrator of it. Years may be occupied
in the strugg.e ; for it is never given over whilst the
possibility of arriving at the truth exists. One case is
given at length in the Review which displays in a
remarkable degree the defects and excellencies of the
system. It is that of a German priest named Riem-
batter, a man of great reputed sanctity, but who, in
feet, had long indulged his passions in secresy, and
being in danger of exposure by one of his victims,
murdered her. The fact is known to three females who
live with him; a mother and two daughters; but at his
entreaties they consent to keep his secret. He buries
the body; no inquiries are made; and years pass on
until the mother and one of the daughters (one of the
priest's mistresses) die suddenly, and the other daughter,
alarmed at their fate, rejects all the priest's overtures to
remain with him, makes her escape, and, after some time,
tormented by her knowledge of the murder, discloses it
to the authorities. It is now that the peculiar character
of the German law shows itself. As the informant was
not 18 (the legal age of taking an oath), no proceedings
are taken until that time (1814). Her deposition is then
received, but no further step taken for one year. The
story was so improbable that this delay was thought to
be due to the character of the accused. When, however,
at the end of the year, the girl repeated her story with
the same clearness and consistency as at first, an investi-
gation is made ; the spot is searched ; a skeleton found,
and other corroborative facts, tening to bear out
the girl's story, ascertained. Riembauer is now
arrested and taken before the examining judge. Lung
prepared, doubtless, in his own mind, for this, he did
not attempt an absolute denial, which would have
involved him in a labyrinth of difficulties and contra-
dictions. lie admitted a knowledge of the murder of
the woman, but alleged that it was perpetrated by the
mother and two daughters, from fear of being super-
seded as his housekeepers by the other female, who was
his cousin. It was now that the struggle between the
judge and the criminal commenced ; and, in point of
intellect it was a fair fight ; for Riembauer was a man
of great talent, wonderful firmness, and moreover was
fflutoin Rti by that esprit du corps which made him asso-
c.eateshie mn disgrace with that of religion itself. This
enabled irio, to undergo above four years of examine-
- ton, folklnies lasting for seven or eight hours succes-
afreelyeand conducted by one of the most skilful judges
• •:_.E.Fattabiett himself-.-ui Germany. All kinds of con-