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and popular in origin, dear to the people from jealous instincts—stand on a very different footing from mere laws regulating forensic procedure.
An innocent man might have had no other safeguard than the law which required two witnesses to prove the facts against him which, if true, established his treason. Let us go back, in imagination, to the Popish plot and Titus Oates. Let us suppose, in the first fury of the fear and rage of a Protestant people, suspecting with reason a plot, but not able to discover its real authors and nature, a jury no safeguard to an innocent man of the Catholic faith. In such a case his sole safety might be that Titus Oates had got no one to back his lie. If then, in such a case, the Parliament struck him down by a Bill of Attainder, or made a law dispensing with two witnesses in that special instance, leaving the general law unaltered, in either case alike, if convicted, innocence would perish by an Ex Post Facto Law, and whether it fell by votes of Houses, or by verdict of a jury, would be equal tyranny. The flagrant wrong and injustice would be the same.
It is obvious then, that the Constitutional safeguards of the subject in bad times equally require that law should in
general be prospective, whether the meditated changes
regard substantive Law or regard procedure, and what
ever be the tribunal to which the new jurisdiction and power are to be confided.
This salutary rule of interpretation, for it resolves itself pretty much into a rule of construction to ascertain the meaning of the Legislature, applies equally to Civil as to Criminal Law. The reason is the same in either case, though the consequences of incautious or unjust legislation are not equally hurtful. A change in the Laws of Evidence, retrospective either designedly or by incautious and unguarded use of wrong terms, may destroy titles which any just Law-maker would especially desire to protect. In a commercial country especially, the title of a bomi fide purchaser for value without notice, is generally regarded as worthy of the protection equally of Legislatures and of Courts. Our Courts of Equity protected such titles from the risk of discovery.
VVe have known in modern times in England and in Scotland decisions on the Law of Marriage, establishing illegitimacy, where the parties declared illegitimate had previously supposed themselves lawful issue. The fact of illegitimacy may be quite unknown to the child though adult, and to one of the parents, nay, even to both. Let us suppose that a perfectly innocent purchaser buys an estate from an heir de facto, supposing himself de jure heir, who has succeeded to the estate of his father who supposed that child his lawful heir. After the purchase, and when no covenants for title are of any value, the blot on the title is first discovered in some way which leaves no doubt of the fact, but by documents inadmissible in evidence. The safety of the innocent purchaser is then entirely founded on the Law of Evidence. A Law consciously directed to destroy his only safeguard and his title, is, as to him, an Ex P0stFact0 Law, though it might be, in the ordinary course of business, a beneficial alteration. But if that Law left the general Law unaltered, and struck at him alone, it would indisputably be retrospective and unjust legislation, against the general policy and equity of the Laws of a Commercial State. In most, though not in all our Laws relating to Real Property which were passed many years ago, such changes, though deemed beneficial, were restricted to future wills, future deaths, future alienations, and so on, for fear of disturbing existing titles. This cautious and just principle has recommended itself to Legislators and ]udges throughout our Laws, whether criminal or civil. It has had engrafted on it no such technical distinction as the historian asserts.
In the particular case of Sir John F enwick, who had kept a witness out of the way by corruption, little feeling for the victim would be excited in the heart of any reader. These cases, however, make bad Constitutional precedents, as hard cases make bad law, and Macaulay rightly condemns the proceedings against Fenwick. His conclusions are sound, his exceptions occasionally sophistical, as in this instance; for it must be observed that the Law as to two witnesses in treason was left unaltered, and ;\Iacaulay’s instance of an alteration in the Law of Evidence made retrospective, viz., in the admissibility of the evidence of Quakers unsworn is inapplicable to the case before him. That was a general Law, applicable alike to all cases, founded on a general sense of the injustice and inconvenience of the Law. In Sir John Fenwick’s case, the Law was left unaltered; but in one special case it was suspended to strike down one special offender.
V.—THE LATE RIGHT HON. MR. JUSTICE
THE death of Mr. Justice Keogh is not only remarkable
as depriving the Irish Judicature of a very conspicuous figure; the legal profession has lost in the late judge one of the most active and vigorous intellects which adorned it. The career of Mr. Justice Keogh spans the period between the O’Connell agitation and modern Ireland, an interval of much gloom and misery. Born in Dublin, in I817, he was educated in that city, proceeding from the schools there to the University. In his course at Trinity College he obtained honours at the examinations, but was specially distinguished by the part he took in the debates of the College Historical Society, the debating society which at the University of Dublin corresponds to the Union at Oxford and Cambridge. In I847, at an age later than is generally chosen for entering on the legal profession, he was called to the Irish Bar, and joining the Connaught Circuit at once commenced active practice. From a political point of view this date marks the darkest period which Ireland has witnessed in this century. The economic condition of Ireland in the years 1847-9 was exceptional in European history. The crisis which had been predicted since the days of Arthur Young was at hand. The numbers of the people had long exceeded all proportion to the normal produce of the soil. Commerce hardly existed. The landlords, instead of managing their estates themselves, had long pursued the custom of handing them over to middlemen, and the process of sub-letting had gone on for generations, until when landlords came to examine their property at the commencement of this century, they found it charged with an enormous population for whom there was no work, and for whom there was no subsistence but a share in the potatoes which the inhabitants of the same cabin might have among them. The concession of the Roman Catholic claims in I829 had only served to disclose the extent of the mischief. The struggle for existence had already begun, and when the air was cleared of the sectarian questions which had unhappily too long occupied public attention, it was found that larger and much more diflicult problems remained to be solved. It was then that O’Connell endeavoured to follow up his success on the Catholic question by undertaking to repeal the Act of Union.
But this impracticable scheme did not long occupy popular attention, and an active revolutionary propaganda overspread the country, whilst famine and disease preyed upon the people, and the bankrupt condition of the landlords made the outlook for the upper classes almost as desperate as that for the masses of the population. There could hardly be imagined a worse political atmosphere than that in which young Keogh passed the years of preparation for active life. He was a boy when the Reform Bill changed the balance of parties in England, and with this change came considerable power and influence to the Roman Catholic party. Reforms were introduced, but in comparison with the enormous economic difiiculties these changes were but trifies, and the pressure went on increasing. Men like Thomas Drummond foresaw the catastrophe which was at hand, and toiled incessantly to avert it. But the public generally were haunted only by a sense of coming disaster, and whilst the cries of the people filled the air, faction was indefatigable to profit by the storm. The noisy declamation of O‘Connell's monster meetings, the savage invective of the great agitator, were the models of popular eloquence to which the ambitious young Catholic naturally turned, and in vehemence and energy the late judge was no unworthy pupil of the rough times in which he studied.
A less powerful nature would have stood aghast at the prospect which Irish affairs presented, when a few months after his call to the bar, the accident of a general election, and the recognition his brilliant talents as a speaker obtained from the Peelite party, gave Mr. Keogh the chance of entering Parliament. He had already obtained a good position asjunior in his Circuit, and though it is true the Connaught is the least important of the Irish Circuits, an assured success on it would have been quite sufficient to secure Mr. Keogh a leading position in Dublin. A seat in Parliament necessarily means, for an Irish Barrister, a sacrifice of professional income. If a man enters Parliament when actually in the enjoyment of office, this loss of income is more than made up to him by his official emoluments, and his duties as Attorney or SolicitorGeneral keep him before the profession, but if he obtains a seat without any immediate prospect of office, and before his position is thoroughly established, he has not only to sustain the loss of income, but the risk of being