Imatges de pàgina

not be wise to resist, considering how important it is to have public opinion on the side of the adıninistration of justice. Now if we are to have new trials on convictions as wet

as on acquittals, it is very plain that convicted persons ought not to undergo the sentence of the law, until a certain time had been allowed them to move for a new trial. If it be asked how much time, the answer is, exactly as much as it is thought proper to allow for the bringing an appeal against persons acquitted. The same length of time must be given in each case; and the convict must in the meanwhile be respited.

The inconveniencies of such a system it requires no great sagacity to perceive. The trouble,--the delay,--the expense,-the temporary indecision,—are all very plain, and very undesirable. But norie of these evils, nor all of them together, form a decisive objection to the plan, if it can be shewn to answer the objects of justice in the end. It is very true that promptitude is of great importance in judicial proceedings. But promptitude is a relative word. It only means that we are to decide as fast as we can decide correctly; otherwise we merely sacrifice the end to the means. The great object is to be right at last. In the small matters, indeed, that come before the courts day by day, dispatch is generally of such moment to the suitors, that it may be better to decide quickly, even at the peril of occasionally making mistakes. But it is not so in those awful exigencies which are to dispose of the life and character of a human being. Here, other virtues are required than those of alacrity and expedition. Here, we must be cautious, deliberate, and circumspect; and perhaps should rather feel afraid of doing wrong than eager to do right.

But it may perhaps be said that it would be hard to oblige those who have once endured the torment of a capital trial, to undergo that cruel ordeal a second time on the same charge. Undoubtedly this would be bard; but the first question is, whether it is necessary. It should be remembered that if the plan were properly carried into effect, the hardship complained of would never be intricted except where there was a very strong presumption of guilt. The power of granting new trials would rest, not with private individuals, but with the judges, acting on the maturest consideration. It would therefore never be exercised, except in very strong cases; and surely it is better that persons covered with appearances of guilt should be exposed to the hazard of a trial for life twice, than that the lives of the rest of the community should be exposed to the danger of assassination.

In short, objections drawn from public and private convenience can never be considered as conclusive against a system which is intended for the furtherance of public justice. But, on the other hand, if the system fails of effecting that end, if public justice is

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not furthered after all,—then great weight may be due to these objections. And, in fact, we think the utility of this plan very doubtful, and that it might possibly be not only useless but injurious.

In settling the merits of such a plan, the points to be considered are, whether it would make innocence more sure of acquittal and guilt of punishment, than they now are? As to the first of these, we believe that innocence is very sure of acquittal already. Our juries are not apt to be sanguinary:--the civilized part of mankind are never apt to be sanguinary, unless they are under some strong personal excitement. The law holds (says Blackstone) that it is better that ten guilty persons escape than that one innocent suffer.' Tbis maxim, which we believe to be as wise as it is humane, (for it is founded on that regard for individual security which lies at the root of all social order,) has long been completely established in the practice of our juries. Fatal exceptions, it must be acknowledged, have sometimes occurred ;-- there are instances in which the innocent have suffered the last penalty of the law. But this is owing to the imperfection of human nature, from the influence of which even the best judicial system cannot be wholly free. Aud besides, the science of criminal law, like other sciences, is progressive. Such distressing examples as those alluded to are not likely to happen again; for we bave been instructed by the effect of our mistakes. This remark may be illustrated by a case which is probably familiar to many of our readers. I would never (says Sir Matthew Hale) convict any person of murder or manslaughter, unless the fact were proved to be done, or at least the body found dead, for the sake of two cases.'— The two cases to which he refers are very curious, especially one of them. A young girl, who lived with her uncle, (who was also her heir at law,) was overheard to say, 'Good uncle, do not kill me!' Very soou afterwards, the child disappeared; and the uncle, being committed ou suspicion of having murdered her, was admonished by the judges of assize to produce her against the next assizes. When the next assizes came, the uncle produced a child whom he declared to be his niece, and who certainly resembled her extremely; but who was proved by witnesses well acquainted with the person of the real niece to be not the same. On these presumptions, the uncle was found guilty, condemned, and executed. But, some years after, the real niece, who had been induced to run away by the ill treatment of her uncle, and had been received and brought up in a distant part of ibe country by a benevolent stranger, appeared, and, being now of age, laid claim to her inheritance. Her identity was established on the clearest evidence, and her claim allowed. This is a shocking story indeed; but it is very clear that such an occurrence could not now take place. In the present state of the country, a 2 Ilale's P. C. 490,

child absconding in this manner could hardly bave lain bid; nor could the persons who harboured her have failed to hear of and to prevent the fatal effects of her disappearance. But at all events, so long as the important rule which Sir Matthew Hale has deduced from this very case continues in force, (and we believe it is now always observed,) there exists a very strong security against the recurrence of so dreadful a inistake.

For the reasons already given, therefore, and perhaps for others that may appear in the sequel, it seems that appeals of murder are not wanted for the sake of the innocent. The next point is, whether they would increase the chances of detection to the guilty.

The office of a jury trying a murderer is among the most painful to which an ordinary member of society can be exposed. Between indignation at the crime, and the fear lest, through a mistaken verdict, another innocent life should be destroyed, their situation is most difficult. To act well in such a situation, men cannot be fortified with too strong a feeling of responsibility. It needs an intense sense of obligation to keep the judgment steady amidst so much excitement. At present, juries sitting on cases of this nature know that their decision is to be final. If they convict unjustly, a fellow-creature may fall a sacrifice to their mistake. If they acquit improperly, they let loose a murderer on society. In either case, though in a different way, blood may be said to lie at their door. The feeling of this heavy responsibility keeps down the influences of mere passion or sentiment over their minds, and severely impels them along the path of duty.

But if it were settled that their decisions in such cases should be final no longer, as their sense of responsibility would necessarily be weakened, so they might be apt to maintain a less firm guard on their feelings. Let them know that, if they should chance to be misled by a generous ardour against crime, or a humane prejudice in favour of the accused, their mistake will be open to the correction of another jury ;-would this produce no effect on the state of mind in which they listened to the evidence, and drew their conclusion from it? In some instances would not a feeling of severity—in many more, would not one of false, or at least niisplaced humanity-be too readily indulged? It is true that the obligation of an oath would remain ; and far be it from us to underrate the effect of such an obligation on the minds of our countrymen. But, in es like those we are now speaking of, cases in which the exercise of severe reason is peculiarly needed, and which yet, by a strange fatality, peculiarly move the passions, surely no motive cau be considered as superfluous. It is fitting therefore that the obligation on the juror's conscience should be heightened by the strongest possible conviction of the seriousness and solemnity of the duty which he is called to discharge.



If these views be just, it follows that the idea of there being an opportunity for a new trial miglit occasionally lead juries to convict too hastily; but much oftener perhaps it would teinpt them to flinch from the performance of a painful duty, and to be too basty in acquitting. They would acquit in the anticipation of a new trial; but it is very material to observe, that the new trial might not come after all. Even in civil cases, vew trials are not grantedit is manifest that they could not be granted—in every instance in which the judges disapprove of the verdict given; for this would be to substitute the opinion of the judges for that of the jury---a substitution the more absurd as, in nicely balanced cases, the jury, who hear and see the witnesses, must be much more competent to decide on the effect of their evidence than the judges sitting in Westminster-Hall, who know it merely from report. It is only therefore where the verdict is glaringly, or very probably erroneous that the matter is sent down to a new jury; and, if this be the practice in cases purely civil, much more would the court be inclined to observe the same caution and delicacy in directing a person acquitted on a charge of murder to be re-tried on the same charge. Besides this, it would be necessary, we presume, that the new trial should be moved for by some appellant or prosecutor; but is it certain that such a person would always be found? Would not indolence, or a want of means, or the invidious nature of the task, deter even those who were dissatisfied with the verdict from taking steps to set it aside ?

It is therefore at least possible that this change in our criminal practice miglit relax the severe attention of juries, under the idea of a remedy being provided for their mistakes, without at the same time incurring the application of that remedy. In mentioning, however, this objection to the plan, we rather wish to suggest it for consideration, than to propose it as decisive. On a subject so important and serious dogmatism is peculiarly to be avoided; but we may be allowed to observe that, before any great change is introduced into the conduct of our criminal jurisprudence, a strong case of expediency should be made out. It is not enough that grounds for the alteration should exist, or even should appear; they must be palpable, in order that we may be secure of that co-operation from public opinion which is always conducive, and sometimes is essential, to the success of judicial reforms. Happily, however, this advantage is sufficiently ensured to us by the popular nature of our constitution, which makes it impossible to introduce any great innovation into our legal practice, without subjecting the measure in its progress to the closest inspection, both in an assembly which concentrates and reflects the good sense and the feeling of the people at large, and in one which either embodies, or immediately commands, all our living resources of judicial wisdom and experience.


Art. XI.- Narrative of a Voyage to Hudson's Bay, in His

Majesty's Ship. Rosamond, containing some Account of the North-eastern Coast of America, and of the Tribes inhabiting that remote Region. By Lieut. Chappell

, R. N. 8vo. London. 1817. THE THE arctic regions are at this moment, from many circum

stances, so peculiarly interesting, that we took up the present volume in the hope of meeting with some new or striking observations on the geography, hydrography, or meteorology of a part of the northern seas which of late years has not been much visited by men of nautical science: but we have been disappointed; and we cannot help thinking that the author has been extremely ill advised to publish with such slight materials. In the Voyage to Hudson's Bay' there is literally nothing worth communicating to the public at large; nothing in the slightest degree connected with professional subjects, unless it be the discovery (which is not a new one) that the Admiralty charts of Hudson's Bay are very defective, and those of the Hudson's Bay Company much better, but reserved for their own exclusive use. Lieut. Chappell, however, is as close as the Hudson's Bay Company, for not a hint escapes him in what the badness of the one or the goodness of the other consists. Indeed, he might just as well have written his little volume on a voyage to the South Seas as to Hudson's Bay, for any thing nautical which is to be found in it respecting this bay ;-the · Voyage,' in fact, was confined to a passage to Fort York and back, a voyage which has been made annually for the last hundred and fifty years.

With regard to the Esquimaux, of whom personally he could know little or nothing—of the Hudson's Bay Coinpany's establishments, which he never saw—of tribes of Indians, in the interior, whom he never visited -of Lake Winnipeg, which he never approached within five hun dred miles,—and of many other matters of which he treats, but in which he had not the smallest concern-we do not think it worth while to trouble our readers with any observations upon them, more especially as by looking a little farther to the northward we shall meet with metal more attractive.'

Among the changes and vicissitudes to which the physical constitution of our globe is perpetually subject, one of the most extraordinary, and from which the most interesting and important results may be anticipated, appears to have taken place in the course of the last two or three years, and is still in operation. The convulsion of an earthquake and the eruption of a volcano force themselves into notice by the dismay and devastation with which, in a greater or less degree, they are almost always attended: but the event to which we allude bas been so quietly accomplished, N 4


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