should be brought to the town when the Sheriff-Substitute should reside, and declarations there taken from them, and then recommitted to the jail of the town, or district, where they had been arrested. The expence of travelling by railway is so very moderate, that it would cost less probably now to bring a criminal from Falkirk by rail to Stirling, or from Nairn to Elgin, than before the days of railways, to convey him to the county town by gig or carriage. If it be thought desirable that there shall be no diminution in the number of procurators-fiscal, all that would be necessary would be that these officials should also go by railway to the town where the Sheriff-Substitute should reside, if it was necessary to take a declaration from a prisoner on a day when the Sheriff-Substitute was not to visit the town where the fiscal's office was. But as we have already said, we should propose that at least one visit per week should be made by the Sheriff-Substitute to each town which had formerly the benefit of his continued residence. By a little arrangement all trifling criminal cases could be taken upon these days, and it would only be the more serious cases where instant apprehension was necessary, that would require the conveyance of the criminal to the residence of the Sheriff-Substitute, and the attendance there of the Procurator-Fiscal, and perhaps of an Inspector of Police. The cost to the country, and the inconvenience to the officials, would, we believe, be of the most trifling character, and not for one moment to be weighed in the balance with the great benefit which the public would derive from the elevation of the position of Sheriff-Substitute, and infinitessimally small if compared with the inconvenience even now existing in large counties, such as Ross, Aberdeen, and Perth.

Let us glance hurriedly at pecuniary results. We throw out of view Edinburgh and Glasgow, the counties of Aberdeen, with a population of 221,569 inhabitants, Ayr with 198,971, and Forfar with 204,425, because these figures only require to be stated to satisfy any one that if there be any great inequality of districts, there should be a re-adjustment, and such as would entitle both the Sheriff-Substitutes in these counties to be put on an equal scale, and that the highest, except in such towns as Edinburgh and Glasgow. Although the population of Renfrewshire had not reached 180,000 in 1861, we have little doubt that with Glasgow extending into it, and Greenock daily developing, the Sheriff-Substitutes both of Paisley and Greenock, having regard alike to the population they have charge of, to the importance of the duties they have to dis

charge, and to the expense of living ought also to be placed on the highest scale; but from this rough glance we shall not exclude them as we do those of Aberdeenshire, Ayrshire, and Forfarshire. There remain forty-two Sheriff-Substitutes, with average salaries of £577 per annum. It does not require much arithmetic to see that the abolition of ten, and the re-distribution of their salaries among those who would in future do their work, would raise the minimum salary from £500 a-year to upwards of £750, and that the abolition of twelve of them would raise it to upwards of £800.

The proposed changes could not, we fear, be carried out without legislative interference, as although Sheriffs have power, with consent of the heads of the Court of Session, to increase the numbers of Sheriff-Substitutes, they have no power, so far as we are aware, to diminish them. A very short Act, of three or four clauses, however, would be sufficient, as all details as to the offices to be abolished, and the number of courts to be held in the towns where these have hitherto existed, might be left for settlement, either to an Act of Sederunt, or to regulation of the Sheriffs, with consent of the heads of the Court of Session, and the LordAdvocate, with concurrence of the Treasury, if need be.

New Books.

Trial by Jury in Europe and America: its Advantages, its Defects, and their Remedies. (Erfahrungen über die Wirksamkeit der Schwurgerichte in Europa und Amerika, über ihre Vorzüge, Mängel und Abhülfe. Von Dr. K. J. MITTERMAIER. Erlangen 1865).

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THIS work is from the pen of the well-known criminal jurist, Professor Mittermaier of Heidelberg, author of "The Criminal Law of England, Scotland, and North America viewed in connexion with their moral, political, and social condition," and of a treatise on Capital Punishment recently translated into English. To Dr. Mittermaier chiefly is due the credit of the introduction into Germany of trial by jury in criminal cases.

But he candidly admits that, as administered in that country, it labours under serious defects. To remedy these is his aim; and he thinks that this may best be done by investigating the working of the institution in other countries, viewing it in connexion with national characteristics, and the differences of national legal systems, and thence determining what to avoid and what is worthy of imitation. The book before us is the result. Its information, collected from the most trustworthy sources-from Ministers of State, Judges, Crown Officers, and Advocates-is accompanied throughout by valuable criticisms and suggestions of improvement, which the varied experience of the writer enables

him to offer.

Dr. Mittermaier lays down as one great fundamental principle not sufficiently attended to by law reformers, that trial by jury is intimately connected with the moral, social, and political condition of a people. Juries lose their proper character in countries where the political party-spirit runs so high that one half of the people strives by all the means in its power to further the ends of the Government, while the other half does its best to thwart them. In such a case the Government would naturally endeavour to have no one selected to act on a jury but those of whose support it was assured. And the natural result would be, that the verdict of a jury would come to depend, especially in the trial of political offenders, merely on the preponderance in the jury of one party or of the other. If the party feeling, instead of being political is religious, the danger is almost greater. In countries where a low standard of education and of moral feeling prevails, where the people do not reverence the law or its administrators, where they do not hold inviolate the sanctity of an oath, there a reliable verdict from a jury is not to be expected. If the judges do not occupy a professionally independent position, or the Crown Prosecutor, instead of being the servant is the tool of the Government, the highest legal offices will be conferred, not on men fitted for them by their talents, uprightness, or professional skill, but on those who will most unscrupulously carry out the designs of their superiors. The consequence of this will be groundless and tyrannical prosecutions. Proceedings on both sides will inevitably be carried on with a degree of rancour and ill-feeling wholly destructive of anything like impartiality and sound judgment. And as to the juries themselves, one of two things will happen-either they will be intimidated into a servil

obedience, or they will be roused into mistrust and bitter opposition. In either case justice will suffer.

These views, which the Professor brings forward in an introductory chapter, he subsequently illustrates when treating of the various countries in their order. We may give an example or two to show the way in which our author works out his idea.

In England, he tells us, trial by jury, which has developed itself but gradually in the course of centuries, enjoys safeguards such as no other land can boast. There, opposition between judge and jury is unknown. An Englishman looks upon the office of juryman neither as a political right, nor, like the Germans, as an honour. He simply regards it as he would any other duty which, as a citizen, he is called upon to discharge. He has perfect confidence in the judge, and views him in the light of a disinterested party, whose instructions are entitled to weight in aiding him to arrive at a final decision. In England, from the circumstance that jury trial is extended also to civil cases, juries have never been invested with the political character they have acquired in other countries. Political party spirit does not constitute an element in the administration of the law. It has done so at one or two periods of popular agitation, but these are exceptional cases, which we need not take into account. The only control to which judges and juries are alike subject, is that of public opinion, as expounded by a free press.

If we turn to Ireland we cannot but be struck with the close degree in which the administration of justice is dependent on the social condition of the people. Though the Irish legal system is the same as that of England, it has been modified by influences to which the other has not been subjected. The chief of these are, according to Dr Mittermaier, the religious intolerance of the two leading sects, the neglect of education, the famine which has at various times visited the country, the formation of secret societies, and, not the least powerful, jealousy towards the English. How prejudicially these worked on the trial of criminals appears from the statistics quoted by our author. The acquittals were at one time out of all proportion to the convictions. 1849, out of 170 trials for murder, 138 resulted in an acquittal; and of 21,202 criminals tried for various crimes in that year, 20,700 escaped punishment! Of late years, however, as the condition of the country has improved, criminal justice has made corresponding progress. And in the very latest instances, in the

In

Fenian trials now going on in Ireland, we have seen no unwillingness on the part of the juries to aid in the vindication of the law.

The American criminal system, formed originally on the English model, has in course of time sustained many important modifications. From the democratic nature of the Government, and the consequent equality of all ranks, the constitution of their juries rests on a different basis from the English. The lists of jurymen are framed in quite another way. For the people are

too jealous of their privileges to entrust this to any single individual corresponding to the English Sheriff. It is in the essence of democracy to distrust men in authority, even when of their own appointing, and to invest them with as little power as possible. Hence crime is not nearly so promptly discovered nor so energetically followed up in America as with us. The judges, who are often elected by the people, are so much controlled by popular opinion as to lose their independence. "There is no country," says Dr Mittermaier, "in which prejudice and particular opinions are so dangerously powerful as in America." Whether opinions on national politics, or on general subjects, such as slavery, are in question, a jury will almost always return a verdict corresponding to the number of its members who are of the same way of thinking as the prisoner. Especially is this the case where religious tenets are involved; for America is quite a nursery-garden of religious

sects.

The influence of national character on criminal procedure is nowhere more felt than in the United States. That country has been colonised at various times by settlers from almost all the countries of Europe; and their descendants still retain certain traces of their original variety of parentage. In Massachusetts, Connecticut, and other New England States, where, as Dr Mittermaier expresses it, "the Anglo-Norman element prevails in the population, and the good old English spirit of fidelity and deference to the law is still maintained by the English colonists," the restraining power of justice is greater, and the working of Jury Trial is much more efficient. Where the population is more mixed, for example in the Western States, whose inhabitants are chiefly of Irish extraction, a jury is much more pliable and capable of intimidation, This is due to the all-prevalent spirit of party, "and to the absence of those good qualities which characterise the English portion of the population." In the States peopled mostly by Germans, juries