This question of new trials in cases of felony after conviction, was part and parcel of a course of lectures on Criminal Law delivered at the King's Inns, Dublin, where I had the privilege of addressing Law students, and during my period of office, Sir Joseph Napier, Ex-Lord Chancellor of Ireland, who, perhaps as much as any living jurist has devoted time and talent to the elucidation of the Science of Law, obligingly furnished me with some notes on the subject, authorising me to avail myself of them as I might think advisable and from these I have in the preceding pages largely drawn, but Sir Joseph Napier's remarks on the procedure, which I subjoin, seem to me very valuable.

"The Criminal Appeal Act is confined to cases before Courts of Oyer and Terminer, &c., in which there has been a conviction. This is founded on the principle of our Constitution, by which an acquittal in criminal cases is in its nature final. (21 Vin., Ab. 478, Pl. 2.) The reason of this exception in favorem vitæ et libertatis makes it the more incumbent on the Supervising Court to exercise its control so that no man shall be convicted except in strict accordance with the law of the land. R. v. Burridge, 1 P. Wm. 227; R. v. Poole 1 Hardw. 26. The Act of 11. Geo. IV. and I W. IV., c. 70, was prepared by Lord Tenterden after the case of R. v. Ellis had been before him in the Queen's Bench; it expressly recognised the inherent supervising power of the Court in cases of felony tried upon its own records, and that a new trial may be granted in a proper case. But in a case where the Court is bound to stay the judgment, is it to stop there? The party has pleaded not guilty, and he cannot be discharged by the Court from the pending indictment. This difficulty seems to have been first specially noticed in the time of Lord Ellenborough, in a special class of cases, arising on indictments for misdemeanours, in which the Court at first hesitated about suspending judgment on verdicts of

acquittal that were not satisfactory to the Court. Lord Ellenborough said that the Court would thereby do indirectly that which if they did directly, would be contrary to the established practice of the Court, that they would in effect be granting a new trial in a criminal case where the defendant had been acquitted.' Afterwards, in the time of Lord Denman, the Court held that they might suspend the judgment in such cases, but that they ought not to make a precedent of granting a new trial. However, in R. v. Chorley, 12 Q.B. 515, they held that, as the effect of suspending the judgment was to leave it open to proceed by a new indictment, the direct course of granting a new trial was the most consistent, and had its justification (as Mr. Justice Coleridge said)'in mere necessity and the requisitions of justice.' This, which had been supposed to be an innovation on the rule of Criminal Procedure, has since been acted on, and is now established. But, in truth, the great constitutional principle of the finality of an acquittal was not properly applicable to cases which, although under the form of Criminal Procedure, were in reality civil trials. Be this as it may, the case of R. v. Chorley proceeded on this that judgment on a verdict of acquittal might in some of such cases be suspended, and as the effect would be to leave the party exposed to a new indictment, the consistent and direct course was to set aside the verdict and grant a new trial. (R. v. Russell, 3 Ell. and B. 942, and R. v. Crickdale, Ibid. 947.) Lord Campbell's observations then as to granting new trials after acquittals for felony and murder were made after the verdict of guilty was set aside, and a new trial granted in R. v. Scaife, and after the prisoners had been convicted on a second trial and sentenced to penal servitude. That case had been remitted to the Recorder's Court at Hull under a procedendo. No suggestion was made that the order for a new trial was open to objection. Lord Campbell says, 'If the conviction ensuing upon a

procedendo is not satisfactory, the Secretary of State was the person to whom application should be made.' (18 Q.B. 776.) This indicates his opinion as to the propriety and regularity of the proceedings, and shows that he must have considered the setting aside the verdict on the first trial as justified by the requisitions of justice. It seems, then, to be clear that when the Court has authority to stay the judgment in a case of felony, there should be an order made for a further trial. If this be not so, the accused party is left without protection against a new judgment. The Court of Queen's Bench in this supervision does not act as a Court of Error. It can do what would not be open to a Court of Error, for it can and is bound to act upon the Judge's report, so far, at least, as to prevent an improper conviction. It would be a strange application of the fundamental maxim that no man shall be put in peril a second time on the same criminal charge, to keep a prisoner under sentence on an illegal conviction, as if it were legal, on the ground that he ought not to have a chance of being duly acquitted, because he would be exposed to the risk of being duly convicted. Unless it can be made out that a mis-trial in cases of felony is equivalent to an acquittal, I cannot see why the Court should not be able to set aside the verdict where it could at least stay the judgment for matters appearing on the Judge's report, or if it found that evidence was received that ought to have been rejected, and that therefore the verdict of guilt in such case could not be the legal foundation of a sentence according to law, surely the requisitions of justice sanction the course taken in R. v. Scaife. The cases in which a venire de novo is awarded in criminal cases proceed on the assumption that there has been an abortive trial that makes it necessary to have a further trial and satisfy the requirements of justice."

W. HARRIS FALOON.

248

AND FUTURE.

THE independent existence in England of a distinct

ecclesiastical judicature dates from the reign of William the Conqueror. Previously, "under the pre-Norman kings, the Church and the State had been practically identical, alike subject to the supreme power of the Witan, by whom Kings, Earls, and Bishops were elected and deposed, and laws spiritual and temporal enacted. The Bishop and the Ealdorman sat side by side at the gemôt of the Shire or Hundred, deciding all causes ecclesiastical as well as civil."* One of the most important of the changes introduced by William was to separate the jurisdiction of the Civil and Ecclesiastical Courts.

By his royal ordinance no Bishop or Archdeacon was allowed to hold pleas of ecclesiastical matters in the Shire or Hundred Court. All such matters were to be tried by the Canon or ecclesiastical law before the Bishop, and at the place appointed by the Bishop. Further, all sheriffs and other lay persons were prohibited from interfering in spiritual matters. We see that there was a distinct demarcation of the areas in which the civil and ecclesiastical

judicatures were to act. To maintain his authority as Sovereign over the Ecclesiastical Courts, however, William laid down three Canons of the Royal Supremacy, which

were

Ist. That no Pope should be acknowledged or papal letter be received in England without the King's consent. 2nd. That the King's barons and officers should not be excommunicated or constrained by any ecclesiastical penalty without his permission.

3rd. That the decrees of National Synods should not be

* Taswell-Langmead's "Constitutional History of England," 2nd Edition, P. 70, et seq.

binding without the King's confirmation. William also imposed a further check on the dignitaries of the Church by changing the tenure of their estates. These were formerly held in frank almoign; henceforth they were changed into baronies, to be held of the King by military service. This change, of course, aimed at maintaining the King's power over the Church, and at giving him indirectly more control over Church Courts.

From William I. we pass to the reign of Henry II. and to the Constitutions of Clarendon, A.D. 1164.

By these Constitutions the jurisdiction of the Ecclesiastical Courts was further regulated.

They established: (1.) That all clerks accused of crime were to be summoned in the first instance before the King's justices, who should decide whether the case was to be delegated to the Civil or Spiritual Court. If remitted to the latter, an officer of the Crown was appointed by the Crown to watch the proceedings. If the accused clerk was found guilty, he was not to be protected by the Church(cap. vii.) Thus the distinction introduced by William was continued. We note that the King's Court first decided whether the cause was to go to a Civil or Spiritual Court. The judgment was passed by the Spiritual Court, but it was the King's Court that passed the sentence and inflicted the punishment.

Such spiritual matters as suits of advowsons and presen tations were to be dealt with exclusively in the King's Court.

All pleas of debt went before the King's Court.

In suits between laymen and clerks as to land, the Chief Justice was to decide, and to refer the suit either to a lay or ecclesiastical tribunal-(cap. ix.)

In trials of laymen for spiritual offences, held in the * For the ecclesiastical supremacy of William in Normandy, see Freeman, Norman Conquest, III. 185, 319, 382.