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him by the officials and servants of the police, who are authorized to make such provisional arrests.

Different from this is the actual committal which must follow upon such provisional arrest, or which can take place independently of it. This point is treated of in section 1 of the Law of 1860:

§ 1. "The committal of a person can only take place upon the strength of a written warrant from a judge, in which the accused, be they one or more, is or are distinctly described.

"This warrant must, at the time of the committal, or at latest in the course of the following day, be shown to the accused."


In the present case, a provisional arrest and detention of the kind described had taken place. For such, paragraph 4 of the Law of 1850 enacts as follows:

"In every case of committal, the necessary steps are immediately to be taken to bring the accused before the judge who has issued the warrant of committal.

"Every person provisionally arrested must, at latest, in the course of the day following his arrest, either be set at liberty, or within that time the necessary steps must have been undertaken for bringing him before the Staats-Anwalt ('Procureur du Roi') of the competent court. The Staats-Anwalt must either order the immediate liberation, or without delay move the court to take a decision with reference to the committal."


§ 5. "Every person arrested, or provisionally detained, must, at latest in the course of the following day after he has been brought before the competent judge, be so examined that the ground of his accusation be communicated to him, and that the possibility be afforded him of explaining a misunderstanding."

In the present case the provisional arrest occurred on the 12th of September, 1860, and on the 13th the examination before the Referendar, who acted in the capacity of Untersuchungs-Richter (Juge d'Instruction). Whether the Referendar in question had been regularly commissioned so to act can only be ascertained by consulting the Acts themselves.

Supposing this not to have been the case, then, according to section 4 of the Law of 1850, it was necessary, with regard to the person (i.e., Captain Macdonald) provisionally arrested, that on the 13th, if he were not set at liberty, the necessary steps should be taken within that time (i.e., from the 12th to the 15th) for bringing him before the Procureur du Roi. This uncertain wording of the paragraph leaves it a matter of doubt whether the citing itself of a

* There is a clerical error here in the original, but there is no doubt about the meaning.-R. B. D. M.

prisoner before the competent judge is to take place on the following day, in this instance on the 13th [in the Rhine provinces persons arrested are usually brought up before the Untersuchungs-Richter (Juge d'Instruction), and not before the Staats-Procurator (Proeureur du Roi)], or whether only the necessary dispositions to that effect are to be taken.* Paragraph 5 seems to imply that a person provisionally arrested is, in the first instance, only to be brought before the competent judge, and superficially examined; and that then, in the course of the following day, the special examination is to take place in such wise that the ground of accusation is to be communicated to the accused, and so the possibility afforded him for an explanation of any misunderstanding.

But if the first examination, as, according to our (i.e., the Rhine) criminal procedure, is always the case, has been conducted in the full manner above described, a second examination naturally does not occur.

What further measures are to be taken are not laid down in the Law of 1850, the object of which was only to limit the action of the police, and to bring cases as quickly as possible within that of the tribunals. When the latter phase has once been entered upon, then the provisions of the Laws of 1808 regulating criminal procedure come in.

According to these provisions the Staats-Anwalt (Procureur du Roi) and the Instructions-Richter (Juge d'Instruction) have to conduct the examinations; and that partly independently, partly together. The Staats-Anwalt (Procureur du Roi) and InstructionsRichter (Juge d'Instruction) can, in cases of a serious kind where the criminal is caught in the act, arrest the accused, where this has not already been done by an official of the Hülfspolizei (Police Correctionnelle). But for the present case the details on this point are of no interest, as the provisional arrest had already taken place. In a case like the present the protocol of the Hülfspolizei

Translator's Note.-The sense of this passage, beginning at "supposing this not to have been the case," which is very obscure in the original, seems to be as follows:-The law allows a "Referendar" to conduct a preliminary examination, but requins that he should be specially deputed in each case to act in this capacity by the Juge d'Instruction. Whether on the present occasion the Referendar was so specially deputed or not, cannot be known, except by reference to the records of the proceedings, which the counsel who gives this opinion had not access to. Even, however, if he were not thus specially deputed, the Law of 1850 is so doubtfully worded, that its provisions would seem to be complied with if, on the day following an arrest, the necessary steps have been taken for taking the matter out of the hands of the criminal police, and bringing it within the cognizance of the judicial authorities (Procureur du Roi and Juge d'Instruction), and that in the present instance an examination before a Referendar, even if not specially deputed, would have amounted to "taking those necessary steps," seems to be the opinion which the counsel wishes to express.-R. B. D. M. I

[1861-62. LII.]

(Police Correctionnelle) is delivered to the Staats-Anwalt (Procureur du Roi), and by the latter the Acts are referred to the Juge d'Instruction; the latter has to test the matter, and, in so far as it may seem justifiable, set the person provisionally arrested at liberty, or, in the contrary case, issue the warrant of committal, properly speaking; i.e., change the provisional arrest into a committal. This proceeding, in the larger towns where a distinct locality and administration exists for the reception of the provisionally arrested, the so called Verwahrungshaus (Maison de Dépôt), has the result that the accused is taken out of this house into the Arrest-House, and upon the exhibition of the warrant of committal is received into the latter by the Superintendent of the Arrest-House.

In the town of Bonn, according to information taken on the subject, there do not exist two separate localities for detention of this kind, and consequently it was necessary that the accused should, on the ground of the police arrest of the 12th of September, be received into the only existing arrest locality; from which, therefore, he could only have been liberated by order of the Staats-Procurator or the Juge d'Instruction. Such setting at liberty not taking place, but, on the contrary, the warrant of committal being made out on the 15th, he had from thenceforward, on the strength of the warrant of committal, to remain in the Arrest-House. The detention from the 12th to the 15th was a provisional arrest, according to § 3 of the law of the 12th of February, 1850, and the detention from the 15th was in virtue of a warrant of committal, both kinds being authorized by the law. According to established usage, moreover, even where a Referendar properly commissioned for that purpose has conducted an examination, the warrant itself is issued by the Juge d'Instruction.

Now, if, as stated in the account of the matter, the ordinary Juge d'Instruction was absent on leave, and his substitute absent on public business, and if it was consequently necessary that the Court (Landesgericht) should name a further substitute, in accordance with Article LVIII of the Code of Criminal Procedure, to the effect that "in those towns where there is only one Juge d'Instruction, and he is prevented by absence, illness, or some other cause, from attending to his duties, then the Tribunal of First Instance names a Judge from out of their own body to act in his place,"then it is easily to be explained that the warrant of committal was only made out on the 15th.

The Staats-Procurator could have ordered the liberation of the prisoner from the provisional detention, but as in this case the prisoner was a foreigner, this could not be demanded, nor would it have been justifiable. But the liberation on bail* cannot be

* Subauditur "after committal."

accorded by the Staats-Procurator, nor by the Instructions-Richter (Juge d'Instruction). It can only be granted by a decree of the Rathskammer (i.e, a subdivision of the court whose functions answer to a certain extent to those of a Grand Jury), according to § 114 of the Code of Criminal Procedure, viz. :

§ 114. "If the act that has been committed does not involve an ignominious ('beschimpfende') or dishonouring ('entehrende') penalty, but only a 'Zuchtstrafe' ('peine correctionnelle'), then the Berathschlagungskammer (the same as Rathskammer) at the prayer of the accused, and at the instance of the Staats-Procurator, may order the provisional setting at liberty of the accused; in which case, if called upon to do so, he has to appoint a surety, capable of payment, to answer for his appearance at all stages of the proceedings, as also for the fulfilment of the sentence.

"The provisional setting free on surety can be applied for and granted at all stages of the process."

This Rathskammer has to meet, according to § 121 of the same Code, at least once a week, for the purpose of hearing the reports of Untersuchungs-Richter (Juge d'Instruction). In the present case the application for bail might probably have required more time than the trial of and judgment on the matter itself, inasmuch as these took place with such rapidity.

If it be considered that the occurrence happened in the bimonthly law term (August and September), that the arrest took place on the 12th, and that judgment was passed already on the 18th, it must be admitted that the greatest possible dispatch took place.

Hence the second question can only be answered as follows:

"That the provisional arrest of the 12th of September, 1860, was, according to §§ 2 and 3 of the Law of the 12th of February, 1850, a legal one; that it is certainly true that this provisional arrest might already on the 13th instead of the 15th have been changed into a committal, properly speaking by a warrant of committal issued by the Untersuchungs-Richter (Juge d'Instruction), if the absence on public grounds of the Deputy Juge d'Instruction had not made it impossible for a warrant of committal to be issued until a new substitute had been named, not, it should be remembered, by the President of the court, but by the Gerichts-Collegium (i.e., the court sitting collegially), but that until this difficulty had been got over the provisional detention did as such continue in a manner conformable to the law."

3. The third question is answered in the above statement. It would, moreover, reduce itself only to this, whether the court acting collegially, (" das Collegium des Gerichtes ") is to blame, because, on the 3rd and 14th a person qualified to act as Unter

suchungs-Richter (Juge d'Instruction), and as such to issue a warrant of committal, was not present.

To answer this question the necessary materials are not at hand. But it is plainly evident that no delay in the proceedings was caused thereby, inasmuch as before stated, the proceedings having been brought to a close from the 12th to the 18th of September was quite out of the

common way.

KYALL, Counsellor of Justice, and Advocate at the
Rhenal Court of Appeal.

No. 44.-Mr. Lowther to Lord J. Russell.-(Rec. December 31.) MY LORD, Berlin, December 29, 1860. I HAVE the honour to inclose herewith to your Lordship the copy of a despatch I received from Mr. Consul Crossthwaite at Cologne, reporting the verdict pronounced upon the English who signed the protest against the expressions used by the Procurator Möller at the trial of Captain Macdonald. I have, &c. Lord J. Russell.



(Inclosure.)-Consul Crossthwaite to Mr. Lowther.

Cologne, December 24, 1860.

I HAVE the honour to report to you that the following verdict was given this morning in the matter of the parties who signed the protest:

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"The court decided that the accused: "Washington, who did not appear, should be proceeded against in contumaciam.

"That Anderson, Drummond, Cumberland, and Rapp, be condemned to pay a fine of 25 thalers each, or be imprisoned 9 days. "That Perry should pay a fine of 100 thalers, or be imprisoned 5 weeks.

"That Baddeley, Rochfort, Thurston, Oldfield, and Washington (the latter in contumaciam) be pronounced 'free' both of fine and costs, and that the costs be defrayed by the before-named Perry, Anderson, Cumberland, Rapp, and Drummond."

W. Lowther, Esq.

I have, &c.


No. 48.-Mr. Lowther to Lord J. Russell.-(Received January 28.)
Berlin, January 26, 1861.
HAVING received a letter from Mr. Anderson, one of the Eng-
lishmen on whom judgment was latterly passed in the Correctional

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