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Happily, when such events occur, they are not allowed to pass unnoticed. The nation zealously watches the proceedings in our Criminal Courts, and whenever justice miscarries, public opinion is not tardy in making itself heard, and the clemency of the Crown is invoked by popular clamour. Now it is in the highest degree impolitic that the public should have occasion to intermeddle with the administration of justice, for it must obviously derogate from the respect which is due to the law if people are permitted to suppose that they can alter its course. The prerogative of pardon, too, should be exercised most sparingly, because it is a tacit disapprobation of the previous proceedings, or an acknowledgement that the punishment is out of all proportion to the gravity of the offence. “ Clemency,” says Beccaria,* “is a virtue which belongs to the legislator but not to the administrator ; a virtue which ought to shine in the code but not in private judgment. To show mankind that crimes are sometimes pardoned, and that punishment is not the necessary consequence, is to nourish the flattering hope of impunity, and is the cause of their considering every punishment inflicted as an act of injustice and oppression.’ If, however, the present practice of calling upon the Crown to over-rule the erroneous verdict of a jury is unsatisfactory, the method of adjudicating upon such matters is open to even graver objection. \Vhen such cases arise, the duty of investigating them and of advising the Sovereign, devolves upon the Home Secretary, but he is not responsible for his counsels, neither l1as he any special
acquaintance with the law nor yet judicial experience. There is no open court, no examination of witnesses, no pleading of counsel, and the minister consummates an irregular procedure by recommending the interposition of royal mercy, only if—as in the Penge case—tl1ere are strong grounds for
' " Crimes and Punishments," ch. xlvi.; see also, Bentham “ Penal Code," Part iii., ch. x.
believing that the convict is innocent. To ameliorate the existing state of things, Chapter XLVII. of the Code introduces a system of appeals and new trials by which
the judge who tries the case can grant either a new trial or leave to move for one in the Court of Criminal
Appeal, the decision of which is final unless permission is obtained to go to the House of Lords. \Vhere a conviction has taken place at Quarter Sessions, two justices, the recorder or deputy-recorder, may order a new trial to be had at the next Sessions. A Secretary of State also may, on the petition of the person convicted, grant leave to move the Court of Criminal Appeal for a new trial. If a second conviction takes place inconsistent with the first, or if the witnesses at the first trial are afterwards convicted of having given false evidence thereat, the defendant may move for a new trial. Sentences are not to be suspended pending the appeal unless they are death, flogging or whipping, or unless the defendant is admitted to bail, or unless the Court from which the appeal is made, or the High Court of justice or any judge thereof, orders that he be treated as an unconvicted prisoner till the appeal is decided. Appeals upon points of law reserved, and upon irregularities at the trial, are to be heard by the Court of Criminal Appeal and, upon special leave being granted, by the House of Lords. Proceedings in error— almost a sealed book even to lawyers—are to be discontinued. The right of appeal is however purely one-sided, for though it is conferred on the prisoner it is denied to the Crown. To be strictly logical in this instance would shock the sentiment which dictated the maxim non bis in idem and and on which the plea of autrefois acquit is founded. VVhen a man has once been through a criminal prosecution with all the suspense and distress of mind which it entails, it is thought that he has had enough of it and ought not to be put in jeopardy again. Englishmen are prepared to sacrifice consistency at the shrine of mercy.
Chapter XLVIII. is devoted to the remodelling of criminal pleading, than which no amendment introduced by the Code is more urgently required. The pitfalls and quicksands, which can only be avoided by excessive astuteness and caution, render the framing of indictments for offences a little out of the beaten track, a task of the greatest difficulty. We have it on the authority of the Attorney-General that those drawn by the most experienced and reliable lawyers run to a length and assume a complication completely monstrous. The experience of the recent Albert Insurance frauds demonstrates the need of reform in criminal practice. The indictment in that case consisted of about one hundred counts; it covered five-and-twenty yards of parchment, and a copy cost £10. This particularity is at present necessary to prevent the escape of the guilty, but there is no reason why it should remain so, and to the accused the elaborate structure so curiously and learnedly put together must be utterly _bewildering. The simple plan of formulating in tabular statements and schedules the real practical issues on which the prisoner is to be tried, is to supersede a system which in its technicality and cumbrousness is not only ridiculous but mischievous and attended with injustice. The Code concludes by repealing wholly or in part no less than eighty-five acts of Parliament.
The Criminal Code (Indictable Offences) Bill is undoubtedly the most important measure of legal reform that has been submitted to Parliament during the present reign. Its provisions will affect the jurisdictions and functions of every Criminal Court in England, and its operation may possibly be extended to all other parts of Her Majesty’s dominions. So vast a measure which, besides presenting new definitions of grave significance, involves enlarged application of legal principles as well as extensive changes in procedure, is not only deserving of mature consideration in its every part but demands the closest scrutiny. Sir Fitzjames Stephen is himself of opinion *‘ that “the Code ought not to be seriously discussed in Parliament until it has been laid before the public for a considerable time. No mere parliamentary discussion would be sufficient to render the work as good as it ought to be. Nothing short of a prolonged public and especially a prolonged professional criticism could detect the objections which might be made to it, and suggest the various improvements of which it is susceptible.” It was at one time feared that an attempt would be made to hurry the Code through Parliament during the past Session, and that the public would be required to accept it in its entirety upon simple trust in the learning, accuracy, and sound judgment of its author. Happily, however, these apprehensions were dispelled by the withdrawal of the Bill and the appointment of a Royal Commission, consisting of Lord Blackburn, Mr. justice Lush, Mr. Justice Barry, of the High Court of justice in Ireland, and its originator, Sir. ]. F. Stephen, who, during the months of November, December, january and February, will devote to it all the time that may be necessary for the exhaustive examination of the measure. By this means Parliament and the public will be enabled to place the fullest reliance on the criticism passed upon its every detail—and a hope may be confidently entertained that the Criminal Law thus translated, abbreviated, revised, and amended, will assume the position of a permanent national edifice.
IV.—EX POST FACTO LAVVS.
LORD MACAULAY, in his account of Sir _]ohn Fenwick’s treason, and of the Bill of Attainder introduced against him into Parliament, denies that an enactment can be called with propriety an Ex Post Facto Law if it change not the substantive Law, but merely the Law of procedure.* This is somewhat a thin and subtle distinction. The division between substantive Law and Law of procedure is not very clearly defined. In our system of law, the Law of Evidence grew up in comparatively modern times, and was in its state of greatest rigour at the time when Mr. Phillips published his first edition of the Law of Evidence. In the first part of the first edition of Mr. Starkie’s Law of Evidence, that learned writer defended almost every Rule that excluded testimony now universally received in our Courts. With us, therefore, the Laws of Evidence may safely be described as always part of the Law of procedure, for they had plainly a judicial origin, and were strictly laws of the Forum. Lord Macaulay, however, was dealing with a portion of the Statute Law which had a popular and a special origin. Our Law of procedure, relating to evidence in our Common Law Courts, had not declared one witness to be insufficient to prove disputed facts. The subjects had been cruelly oppressed by the regal power acting through its Courts as the ministers of its tyranny. They grew to look on the Government as an enemy, from whose violence they were to be defended. Hence the strict and special provisions as to procedure of the Statute Laws of Treason, varying, in favour of the accused, from the general provisions as to the same matter of the Criminal Law in like cases. These exceptive provisions then—statutory in enactment,
‘Macaulay, Hist. of England, Works, Vol. IV. (r866.)