« PreviousContinue »
more qualified to exercise this great prerogative than a Court of Appeal composed of the highest Judges in the realm, and engaged in the investigation of the most grave charge which can be made against a fellow subject. Is money of more value in England than the life of a human being ? Why should there be an Appeal in civil actions in the High Court of Justice, and not an Appeal in the same Court in a case of life and death?
7. Pardon by the Royal Prerogative.—The power to pardon offenders is usually entrusted to what is called the Executive power. What is this Executive power is not very clear, and the name does not suggest any very clear idea. Perhaps, the most perfect notion we can form of this Executive power is that it is an authority subordinate to the supreme Legislative power in the State. How far this power of pardon should be exercised in any case is a grave matter for discussion; because, if the power is exercised on a knowledge of the case, the Executive power acts as a Court of Appeal, and over-rides the ordinary Courts of the State; and if it acts arbitrarily, it acts legislatively and in violation of the fundamental laws of civilised government. Pardon of offences against the Criminal Laws should not be granted, unless on a proper satisfaction to the State by punishment, or by an equivalent of past, present, or future services. By the Constitution of England, the prerogative of mercy is reserved to the Sovereign. No matter where deposited, or how actually exercised, it should not be regarded, says Paley, as a favour yielded to solicitation, granted to friendship, or least of all made subservient to the conciliation or gratification of political attachments, but should be a judicial act. Recent events have shewn that this great doctrine is apt to be forgotten by a large number of well-meaning, but weak-minded persons. An unmerited pardon is a crime against the public. A wise Government will never be affected by the violence or threats of a mob, or of its leaders. The Sovereign power,
entrusted with the high and sovereign right to pardon offenders, should be governed by an enlightened regard to the public welfare. When it does not put the laws of the land into execution, the Sovereign power suffers a serious wrong. The power of pardon should not be exercised by caprice, or under fear. It is often a beneficent and beneficial power ; but it often gives rise to unjust clamour, unfounded libels, and dangerous threats. Such a power cannot be easily exercised to the satisfaction of all. As a rule, clemency should be excluded in a perfect Criminal system of law, where punishments are mild and the proceedings in Criminal cases are regular and expeditious; for, then, clemency is unjust to the nation and dangerous to its security and peace. When an accused person is innocent, and has been found guilty, his case is not one for clemency, but for justice, and should be subject to a regular Appeal to a Criminal Court of Appeal. A criminal should no more be exempted, by caprice, from the sentence inflicted on him by law, than a defendant, in a Civil action, should be exempted from the judgment passed against him in a Civil suit, unless by and in virtue of a judgment of a Court of Appeal. But, when the Criminal Laws are absurd, or the punishments severe, the clemency of the supreme power may be just and necessary. Still, clemency should belong to the laws, and not to the legislator. It should shine out and illuminate the Criminal Code. It ought not to be left to the whim or fancy of private judgment. It should not be determined by the invisible and mysterious power of public opinion, which, though strong, is vague
III.-REFORMS REQUIRED. 8. Some Reforms Required in our Criminal Laws.-Great improvements and reforms have been made during the present century in our Criminal laws; but much requires to be done by future Legislators and Judges and Magi
strates. Looking at the Criminal laws of our country, and the offences they are intended to punish and to prevent, I venture to assert that the spectacle of human suffering before our eyes, even after all the advancements we have made in the present century, should arouse our best exertions to help and save those who are surrounded by vice, or addicted to crime, and that not only in their interest, but also in our own and that of the public. Let us see that our Criminal laws, and indeed all our laws, are in conformity to Justice and the public interest. Nothing would enable us more effectually to arrive at this conformity than the simplifying and codifying of our Criminal laws, and making them clear, precise, and brief in expression. Napoleon the Great boasted that his Code had done more good to France than all previous laws. Was he right? To a very large extent he was. Very considerable progress in this great and necessary Reform was made under the late Lord Chancellor Cairnsin 1878 and 1879. Than the present Lord Chancellor of England, no man in this country is more capable of completing the grand work which Lord Cairns, with the aid of most able coadjutors, commenced, but did not succeed in bringing to a final conclusion.
I have shewn, I think, that it is of the highest importance that the Legislature should provide for a High Court of Criminal Appeal in all cases of murder, and, indeed, in all grave and serious crimes, in order to protect the innocent, and to prevent the execution of harsh or unjust sentences against the guilty. But, if the accused ought to have the right of Appeal, the question arises, should the accuser have the right of Appeal, or of beginning a new prosecution ? Thorrilon answers both questions in the negative, and supports his opinion by an appeal to the principle of Humanity. venture to think that he is wrong on this point; and that the accuser as well as the accused should have the right
of appeal; and unless the Court of First Instance, or Court of Appeal, held the accused to be innocent, that the accused should be entitled, as in a Civil action, to re-commence proceedings against the accused.
All Criminal appeals should be immediately from the Inferior Courts to the High Court of Justice, and should be brought under review by a simple and inexpensive procedure.
Finally, I would refer to the Criminal Law and Pro. cedure Reforms which I suggested in this Review in May, 1878.
II.-CONTEMPT OF COURT.
1. INTRODUCTION. INTRODUCTION.—i. The Nature and Outline of the Subject. Distinction between contempt by disobedience and contempt by obstruction or interference-Former part of law of execution-Latter a criminal matterCriminal contempt defined- Jurisdiction to visit with summary punishmentNature and reason of the jurisdiction-Not necessary to shew an actual deflection of the course of justice-Power of Court neither arbitrary nor precisely limited— Motions where mere technical contempt discouraged— The limits of the jurisdiction- Meaning of " the Court”—Arrangement of subject.
§ ii. When a Proceeding is Pending. Civil proceeding-Criminal cause-Institution of proceeding-Before judg. ment drawn up-Contempt sedente curia—Cases concluded, or concluded as to one stage-Reports of cases—New trial-Indictment against a number of persons tried seriatim - Molestation after decree for judicial separation.
§ i. The Nature and Outline of the Subject. CONTEMPT of Court may be committed either by
disobeying an order of a Court, or by obstructing or interfering with the course of justice. Contempt by dis obedience to an order is, at bottom, a branch of the law of execution.* Contempt by interference with the course of
* Pooley v. Whetham, 1880, 15 Ch. D. 435 C.A. (disobedience to order not an offence within sect. 19 of the Extradition Act, 1870); Martin v. Bannister, 1879, 4 Q.B.D. 491 C.A.
justice is a highly criminal matter, on occasion arising out of an act of disobedience, but separable and distinct from any form of contempt in process.* I propose to treat of Criminal contempts only.t
A contempt of Court is anything done, when an action, cause, proceeding, or matter is pending in Court, which has a tendency to obstruct or interfere with the ordinary course of justice, or to prejudice the trial. I
Such an act would generally be punishable by the criminal law, and is, at times, a libel, and if there is some particular doubt as to a matter of fact, for instance, as to the meaning of a document, the Court, in its discretion, may leave the question to be determined by a jury,but, since ordinary criminal process is slow and would be inoperative till after the mischief was done, there is a jurisdiction, which Courts of Record have properly exercised from the earliest times, to deal summarily with such cases. ||
* Ib.; Harvey v. Harvey, 1884, 26 Ch. D. 644 ; O'Shea v. O'Shea, ex parte Tuohy, 1890, 15 P.D. 59 C.A.; Reg. v. Castro (Skipworth's Case), 1873, L.R. 9 Q.B. 219, 232.
+ Excluding contempt by the non-payment of money ordered to be paid in a fiduciary capacity and contempts by solicitors as officers of the Supreme Court, which, though criminal (In re Gent, 1888, 40 Ch. D. 190; In re Freston, 1883 11 Q.B.D. 545), are not of the same character as contempts by inter. ference; and contempts committed by inferior Courts in ignoring orders of a superior Court directed to them. See Bl. 2 Com, 280, 2 Hawk. P.C. c. 22; Vin, Ab., t. Contempt; Coventry and Hughes, Dig., t. Contempt; Barton v. Reg., 1840, 2 Mo. P.C. 19; Barton v. Field, 1842, 4 Mo. P.C. 273.
1 Anon. (Case of the Champion, Case of the St. James' Evening Post), 1742, 2 Atk. 469, S.C. Roach v. Garvan, 2 Dick. 794, 1748; 1 Ves. Sen. 157 ; Skiipworth's Case, u.s.
§ Ex parte Jones, 1806, 13 Ves. 237; Helmore v. Smith, 1886, 35 Ch. D. 449.
|| Rex v. Almon, 1765, Wilmot's Op. 243 (approved Re Johnson, 1887, 20 Q.B.D. 68); 2 Hawk. P.C. c. 22; Burdett v. Abbott, 1811, 14 East 85, per Lord Ellenborough, C.J. ; Rex v. Davison, 1821, 4 B. and Ald. 329; Rex v, Çlement, 1821, ib. 218; Skipworth's Case, ubi supra,