ne occasion been
impressed in precisely the opposite way by the same case.[93] He had
pointed out that the want of attention to the rules of evidence betrayed
courts-martial into all manner of irrelevant and vexatious questions,
which protracted their proceedings beyond all tolerable limits. But, on
a larger scale, the same point was illustrated by a comparison between
French and English trials. To establish this, he gives careful accounts
of four English and three French trials for murder. The general result
is that, although some evidence was excluded in the English trials which
might have been useful, the advantage was, on the whole, greatly on
their side. The French lawyers were gradually drawn on into an enormous
quantity of investigations having very little relation to the case,
and finally producing a mass of complicated statements and
counter-statements beyond the capacity of a jury to bring to a definite
issue. The English trials, on the other hand, did, in fact, bring
matters to a focus, and allowed all really relevant matters to be fairly
laid before the court. A criminal trial has to be more or less of a
rough and ready bit of practical business. The test by which it is
decided is not anything which can be laid down on abstract logical
principles, but reduces itself to the simple fact that you can get
twelve men to express a conviction equal to that which would decide them
in important business of their own. And thus, though the English law is
unsystematic, ill-arranged, and superficially wanting in scientific
accuracy, it does, in fact, represent a body of principles, worked out
by the rough common sense of successive generations, and requires only
to be tabulated and arranged to become a system of the highest
excellence.

The greatest merit, perhaps, of the English system is the attitude
naturally assumed by the judge. No one, says Fitzjames, 'can fail to be
touched' when he sees an eminent lawyer 'bending the whole force of his
mind to understand the confused, bewildered, wearisome, and
half-articulate mixture of question and statement which some wretched
clown pours out in the agony of his terror and confusion.' The latitude
allowed in such cases is highly honourable. 'Hardly anything short of
wilful misbehaviour, such as gross insults to the court or abuse of a
witness, will draw upon (the prisoner) the mildest reproof.'[94] The
tacit understanding by which the counsel for the Crown is forbidden to
pre