Suggestions for the Amendment of the Law of Appeal in Criminal Cases, 1. The Foreign Enlistment Act.-59 Geo. III., c. 69, 47. The Policy of Patents, 315. The Roman Element in England, 325. The Trial of Armand, 97. Twiss and Wheaton on International Law, 289. What is the Value of a Ship? 76, THE Law Magazine and Law Review: OR, QUARTERLY JOURNAL OF JURISPRUDENCE. No. XXXIII. ART. I.-SUGGESTIONS FOR THE AMENDMENT OF THE LAW OF APPEAL IN CRIMINAL CASES.* THE practice of granting new trials, though not altogether unknown, was seldom resorted to in this country before the middle of the seventeenth century. So long as jurors continued to be mere recognitors, their functions were testimonial as well as judicial, and their verdict was of course paramount and final. It would appear from a statement by Glanville that, at all events in the reign of Henry II., jurors of assize, and the ordinary jurata patriæ were empannelled for the finding of facts on their own personal knowledge, and not upon independent evidence laid before them.† As to the character and particularity of the personal knowledge which each juror was bound to possess, the rule was not very strict or well-defined; it being understood that where direct evidence was unattainable, the jury were to give their verdict ex credulitate or ex conscientia. * A Paper, by Mr. G. Harry Palmer, read at a Meeting of the Jurisprudence Department of the National Association for the Promotion of Social Science, February 1, 1864. + Glanville, lib. 2, c. 7. VOL. XVII.-NO. XXXIII. B The practice of enforcing a jury naturally suggested itself as the best mode of carrying out the ideal infallibility, with which it was sought to invest this popular tribunal. It consisted in a careful elimination from the panel of recognitors of those who, from ignorance of the circumstances or other cause, turned out to be dissentients, and in the substitution of a corresponding number of competent jurors whose verdict would be unanimous. Here, then, was a tribunal, uniting in itself functions which were at once testimonial as well as judicial, and from which, if the conditions above alluded to could have been strictly carried out, appeals would have been useless and unnecessary. Unfortunately, it was found that this tribunal, although theoretically faultless, had its drawbacks. Great difficulty was experienced in procuring twelve men who were witnesses to the facts, and whose verdict was unanimous. Sometimes direct evidence could only be obtained from women or children, who of course could not act as jurors; while in other instances the circumstances were witnessed by only one or two observers. Thus the practice of enforcement gradually fell into disuse, and new elements became incorporated with the original conception of a jury trial. In the twenty-third year of Edward III. a most important innovation was solemnly sanctioned, viz., the adjoinment of witnesses to the jury, for the purpose of aiding them by their testimony, but having no voice in the verdict; and whose evidence might indeed have been entirely set aside by such verdict. The change thus introduced raised the responsibilities and status of jurors. They were no longer mere depositaries of knowledge, but the higher and more intellectual task of deducing conclusions from the testimony of others now devolved upon them. Hitherto an erroneous verdict logically implied corrupt perjury (for the jurors were sworn to decide upon their own knowledge), and their punishment was by attaint. But when they became judicial officers of the court, a wrong verdict implied only error of judgment, for which it would be obviously unjust to inflict a punishment. This naturally led to a great revolution in legal procedure, viz., to the establishment of Courts of Appeal, and the granting of new trials. This privilege-a tardy concession to the demands of a people no longer barbarous-was confined for centuries to civil procedure. Appeal by way of motion for a new trial, or writ of error, or by a bill of exceptions, gave the dissatisfied litigants ample opportunity to test the validity of judicial decisions respecting the existence of a debt, or the meaning of a contract; but the finality of a verdict upon ant inquest by jury was scrupulously left undisturbed as regards all indictable offences. Within a recent period, and after a hard struggle, the legislature conferred the right of appeal even in criminal cases, where the subject of it was a question of law. This is the nearest approximation that has yet been made towards the complete assimilation of the Law of Appeal in civil and criminal proceedings. And permit me, in this place, to call attention to one provision, in the present Law of Criminal Appeal, which has been severely criticised by those whose experience and learning bespeak for their opinions a respectful consideration. I refer to the discretion now vested in the judges with respect to points reserved. It cannot be denied that the manner in which this discretion has been exercised has not given satisfaction. The anticipation of Mr. Justice Coleridge, expressed in his evidence before the Select Committee of the House of Lords, appears to have been fully verified. "I am not so much afraid of the wholly unprofessional magistrate," observed Mr. Justice Coleridge, "who might perhaps refer improperly, as I am of the half educated lawyer presiding (a case of not unfrequent occurrence), who might, I think, sometimes also refuse to refer improperly. I am inclined to think that if the prisoner's counsel will certify, under his hand, that he believes there is error of law in the decision objected to, and will undertake to argue the point, the chairman ought to be bound to state the case. In civil cases, it is remarkable how small a proportion those in formâ pauperis (where such certificate is necessary) bear to other cases, and how small upon the whole the abuse is of the permission to sue." The greater portion of the criminal business of the country is conducted before the inferior judges of Quarter Sessions, and it is worthy of observation that those judges appear to show more reluctance to reserve a question of law than the judges of the Superior Courts, although it may, without offence, be supposed that the former have not a more extensive or accurate knowledge of its principles than the learned judges who preside over the higher tribunals. This is very natural. A judge imperfectly informed as to the law, often hesitates to reserve a question which may be important and new, under a fear lest it turn out to be a wellestablished point with which he ought to have been familiar. It must also be admitted that many who are most anxious for the proper administration of justice, in their diffidence and anxiety sometimes consent to state cases for the consideration of the Court of Appeal which ought to have been peremptorily refused. The result is that the reservation of questions of law which are of importance and difficulty, is very much a matter of chance.* Upon this point the illustrations given by Sir Fitzroy Kelly, in his evidence before the Select Committee of the House of Lords, are very apposite. "I have myself, within my own experience, known some such fearful instances of injustice on the refusal by judges of great eminence and learning, and of great humanity, to reserve points which have afterwards been determined to be fatal to the conviction which has taken place, that I think the people of this country are entitled to demand that an appeal should be matter of right and not matter of discretion with the judge." The case of Russell, the Huntingdon gaolor, bears out in a *This subject is ably argued in a pamphlet addressed to Sir George Cornewall Lewis, then Home Secretary, by W. Ribton, Esq., Barrister-at-Law. |