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June 2,1860.J The Leader and Saturday An...
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COURTS OF APPEAL. IN our recent remarks ...
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IRISH CHARACTER AND ENGLISH COUNSEL. OF ...
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June 2,1860.J The Leader And Saturday An...
June 2 , 1860 . J The Leader and Saturday Analyst . 519
Courts Of Appeal. In Our Recent Remarks ...
COURTS OF APPEAL . IN our recent remarks on the case of Mr . Hatch , and on criminal trials in general , we alluded to one of the remedies proposed for the evils that are still to he' found in our administration of justice . In no country save our own is the first sentence in criminal cases final , nor ought it to be so here . But it is one of the peculiarities of our constitution that property is more valued than character , liberty , life or limb . Napoleon I . called us a nation of shopkeepers , but it would not be very difficult to show that it was precisely because we are so that we were enabled to overthrow his colossal power . We must look once more at the administration of justice among our Anglo-Saxon ancestors , before we can comprehend the real spirit of those which prevail at the present time . Then ,
the rich man became a thane , and the thane ' s life was held to be more valuable than the ceorl's , the ceorl ' s than the serf ' s ; and in like manner that of the king , the earl , the sheriff * and the bishop had each its respective value ; but as the life increased in value , so the testimony increased in credibility . The oath of the earl outweighed that of all the serfs on his estate , and the gradual rise in the importance attached to a man ' s evidence was in exact proportion to his rise in the social scale , and the presumed amount of his stake in the country . The effect of this at the time was to infuse into the -constitution a strong admixture of the aristocratic element to counterbalance the democratic tendencies produced by local self-government , and to balance with a wonderful amount of accuracy the various interests of contending classes . But at the same time it had its evils , and these have continued to the present time , and are
found wherever the Anglo-Saxon race has settled itself , even though the institutions themselves have long passed into oblivion . Wealth arid station are more worshiped here and in America than in the most despotic monarchies , and for the very reason that they are attainable . They are marks of success , but a success obtained by -skill , virtue , commercial ability , by civic excellence . They are not merely the marks of royal and imperial favour . It could not be said here , or in America , as was said by the late Emperor Nicholas , * f No one is distinguished in my presence save he to whom I speak , and he only so long as I speak £ d him . " Wealth under such a regime is-of . infinitelyJess value than among us , and it is infinitely less- a token either of great or good qualities . It was in consequence of taking a man ' s possessions as a test of his merits that We find the Anglo-Saxons instituting so minutely regulated a scale foi— the valuation of lives and oaths .
Bearing this in mind , we shall not be surprised to see that property is so carefully protected by our English law , that its transfer is so jealously guarded , and that so many privileges are attached to its possession . If an unjust demand is made upon us , and the matter is brought to trial in a court of justice , we can first protect ourselves against any supposed-prejudice ' oh ' the . part-of the jury , by claiming a special one ; nor can the court refuse us this privilege ; but , as we have already seen , if our lives or our characters are at stake , we must perforce be content with a common jury . If the result of the trial goes against us , and there seems ground for objection , either that the verdict was contrary to evidence , that the court allowed evidence to be received which , strictly speaking , ought not
to ^ ligvirfrgen-ffdmitted-p ^ ha t ^ the law of the case , we can claim to have it tried over again . Facilities ' are given to furnish different courts , different judges , and we may finally carry our complaint before the Courtfof Chancery , before the Hoiise of Lords , or even before the Queen herself in council . But then this must be a matter of property , or of theology . If we are accused of poisoning , for instance , and know ourselves to be innocent , we must nevertheless consent , if twelve men cannot see their way to acquit us , to suffer death , even though it be notorious that not one of the twelve could imderstand the nature of the . evidence on which they convict us .
Herein lies one of the great defects of our jurisprudence , —it places jurors in a position of responsibility for which , they are manifestly unfit , and it precludes any remedy for their incompetence '; it takes care of the pence , but it neglects , comparatively speaking , the dearer interests which may be affected . Let us in order to illustrate this take the case of Dr . Smethubst . At the tune that this person was accused of murder , there had been several frightful instances of poisoning , and the public mind was greatly excited . It was felt that life was becoming less secure , that deadly drugs were being brought into useby the means of which the vital spark
, might be extinguished without any probability of the agent sdetection . One such substance had been discovered , which had defied all attempts to analyze it ; all that was known wns that it was a green oil of so acrid and corrosive a character as very rapidly to produce an agonizing death , and yet it was impossible to say whether it was a spontaneous product of disease within the body , or whether it had been administered from without . Under such circumstances it was impossible for a jury to convict , and the accused was therefore found not guilty ; bujb the national feeling was not satisfied . It was felt to bo more than ever necessary tobreak '" downr thebarriers
behind which crime had entrenohod ituelf , to array science m opposition to murder , and to teach the moat accomplished criminals that they were not tq hope for impunity in thoir attempts to make one the handmaid to ' the other . It was" just at this juncture that tne trial of Smethujist occurred—we have no intention of recalling the incidents of the death which gave rise to it . Wo shall simply recall to the reader ' s memory two facts . One was , that all the moral ^ evidence , viz ., that derived from the consideration of motives-and . character , was about equally balanced , while the medical evidence comprehended the distinct declaration of several experienced
practitioners , that they had seen all the symptoms exhibited in the case of the deceased produced by purely natural causes , and that they did not believe there had been , any murder at all I Still , the general feeling of insecurity so strongly influenced the jury that they found the prisoner guilty , and he was actually sentenced to death with the full intention that the sentence should be carried into effect ! Now , in such a case , what was to be done ? It soon became clear that the execution of the unhappy man would be a mere judicial murder , and that the uncertainty from which the popular sentiment was suffering would merely take another direction instead of being relieved . The doubt had been whether any life could be secure from poison ; the doubt would be whether any life could be secure from the hangman , and of the two the latter was by by far the most dreadful . A free pardon was granted , therefore , to
the man , who was immediately , on the ground of his disreputable character and conduct , arraigned on another charge , found guilty , and punished accordingly . Many serious reflections could hardly fail to be awakened by a series of circumstances such as this . ^ The simple facts , divested alike of clap-trap and forensic technicalities , were these : an individual is accused of murder ; he is convicted on insufficient evidence , and by a judge who allowed himself to be biassed against the prisoner ; he is sentenced to death , —when the public voice declaring , with ah energy that could not be disregarded , that the trial had not resulted in a just verdict , the accused is virtually acquitted on the charge for which he had been previously arraigned , and straightway punished for another offence , because his life would not bear a severe investigation . Surely this is a sad blot on our criminal jurisprudence .
The most intelligible remedy that can be provided for such evils , is the establishment of a Court of Appeal . In almost all other countries such a court always exists , and it is a safeguard of the most valuable character . But , say objectors , if-such . a . court were instituted in England ; we should have every case tried twice over . No man would be satisfied with a verdict of - " guilty , '' and the expense and waste of time incurred in re-hearing trivial cases would be intolerable . There is , no doubt , considerable reason in this ; and if a Court of Appeal were to imply that all petty cases were to be twice heard we should object to it at once and in toto . But the idea of an appeal does not involve this . A prisoner tried for his life should have a right to demand a rehearing , but in all other cases \ ye would make the tried the and
-appeal to depend on the consent ofthejudge who case , of the Chief Justice of the same court . It might also be left to the same authorities to grant an appeal on the engagement to pay the expenses of the trial , for undoubtedly instances might not unfrequently arise s in which a-wealthy man , though decidedly in the wrongr-migiit desire to be tried again , and it would seem hard , it he were able and willing to pay for the indulgence , that it should be denied him . The trials which would and ought most frequently to be reheard , are those in which the evidence is conflicting , and at the same time of a chemical or medical character . Such evidence can rarely be understood even by a special jury at the first hearing , and on the second trial there would be opportunity offered to weigh all the information which would not fail to be given through the public press , as well as that whic h formally appeared before the
At present , we all know that a prisoner may be acquitiTdTTnTd yet the stigma of crime may weigh upon him for the remainder of hia life . It may be that this evil arises from the natural malignity of which divines so frequently assure us . And if a man have enemies , they will always avail themselves of the opportunity to do him mischief . They will say— " Where there is smoke , there must be fire . He must have been very much to blame , even it he did not do all that has been laid to his charge . " A free pardon does little or nothing to neutralize this ; the sentence of a Court of Appeal would do much ; and were there no other reason thair this , wo should be rejoiced to see such an institution established m this country We are not in the habit of thinking or speaking very hio-hly of the liberty of the subject iu France , but so long as a " Court of Cassation" exists in that country , and is wanting in ours , so long is there , nt least , one point in which they are our superiors .
Irish Character And English Counsel. Of ...
IRISH CHARACTER AND ENGLISH COUNSEL . OF all types of European character surely the Irish is the strangest , if the term type can bo applied to anything so anomalous ; its very characteristic is a Protean irregularity . Look at the brothers Butlek of the thirty years' war , famous and infamous—one the dasturdly assassin , in company , with his fellowcountryman Gebaldinb , of the great General Walstein ; the other and younger of the brothers deciding the day of Nordhngen in favour of the Imperialists , not losing an inch of ground in a battle of twenty-three hours' duration , with sixteen thourtand slam around him ; base murderers , brave warriors , close of kin in tins eccentric Irish family . Sainta or soldiers , there is the same incouaiatency , making veritable hi « tory look like notion . We SCO them enlightening the early gloom of northern Christianity by their scholars und missionaries , the greatest men of their time , 11 . ^ ., « : » n . iA . u » i ^ a linnvnmnled in their absurdity , wuon cno
Bollandists begun that great collection of hagiogranhy thej made here a special exception , acknowledging that they could not be altogethor responsible for the truth of the lives of the Irish sain s . So Say * Southey in one of his Quarterly Mevtew essays . In another of hia works he has himself given us such specimens , thtf the incredulity of the Boliandists ceases to surprise us . We have a
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Citation
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Leader (1850-1860), June 2, 1860, page 11, in the Nineteenth-Century Serials Edition (2008; 2018) ncse2.kdl.kcl.ac.uk/periodicals/l/issues/cld_02061860/page/11/
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