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COURTS OP APPEAL *
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IRISH CHARACTER AND ENGLISH COUNSEL. character tho Irish is
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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 be found in our administration of justice . In no country save our own is the first sentence in criminal cases final , noi * 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 . Napoxeon 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 instice 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 inore 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 l-espective 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 and 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 succe ' ss 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 ,
-and he only so long as I speak to him . " Wealth under such a I regime is of infinitely . less value than among us , and-it is infinitely j less a token either of great or good qualities . It was in consequence i ¦ of taking a man ' s possessions as a test of his merits that we find the Anglo-Saxons instituting so minutely regulated a , scale for the I valuation of lives and oaths . ~ - " Bearing this in mind , we shall not be surprised to see that pro-• jrerty is so carefully protected by our English law , / that its transfer is so jealously guarded , and that so many privileges arc . attached to its possession . If an unjust demand is made Upon us , find the matter is brought to trial in a court of justice , we can first , protect ourselves against any supposed prejudice on the part of thejury , by , j 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 yU I _ C * O » C llllV V ••¦ * tlliU J UWV'AI * > A 4 VUJ . in W A- ^* v » . » » v****— ••¦«¦• w ^^ ---. « . « - _
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 have been admitted ; that tfie ~ ju ( Jge misdTr ^ c"t ^* tIre ^ rry -a ^ -tcr ~ 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 Court of Chancery , before the House of Lords , or even before the Queen herself in council . But then this must be a matter of property , or of theology . If we arc accused pf 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 understand the nature of the evidence on which they convict us .
tioners , thait 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 ! . 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 j 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 an 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 ¦ tlie 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 \ oto . 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 we would make the
appeal to depend on the consent of the judge who tried the case , and 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 , in which a wealthy man , though decidedly in the wrong , might desire to be tried again ,. aiid it would seem hard , if 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 which formally appeared before the
courtT ' - *—— ¦ ¦ ^ : - ¦ — .,, ¦ ¦'" ¦ ¦ , — At present , we all know that a prisoner may be acquitted , ana yet the stigma of crime may weigh upon him for the remainder of his 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 if 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 ot Appeal would do much ; and were there no other reason than 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 highly of the liberty of the subject iu Prance , but so long as a " Court of Cassation" exists in that country , and is wanting m ours , so long is there , at least , one point in which they are our superiors .
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 . Smethtjhst . At the time that this person was accused of murder , there had been several frightful instances of poisoning , and the public mind was greatly excited . It was folt that life was becoming less secure , that deadly drugs were being brought into use , by the means of which the vital spark might be extinguished without any probability of tho agent ' sdetection . One euch substance had been discovered , which had defied all attempts to analyze it ; all that was known was that it was a green il of so acrid and corrosive a charnoter as very rapidly to produce
an agonizing death , and yet it wns 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 wna therefore found not guilty ; but the national foaling-was not satisfied ,, It , was felt to be more than ever necessary to break down the barriers behind which orime had entrenched itself , to array science iu opposition to murder , and to teach the most accomplished criminals that they were not to hope for impunity in their attempts to make * me the handmaid to the other . It was just at this juncture that 'the trial of Smethtjusx 1 occurred—we have no intention of recalling : the incidents of Ihe death which gave rise to it . , We shall simply recall to the reader ' s memory two facts . One was , that all the moral evidence , viz ., that derived from tho consideration of motives and character , was about equally balanced , while the medical evidence comprehended the distinct declaration of several experienced practi-
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OF all types of European surely strangeat , if the term type can be applied to any thing so anomalous ; its very characteristic is a Protean irregularity . Look at the brothers Butleu of tho thirty years' war , famous and infamous—one the dusttirdly assassin , in company , with his fellowcountryman Gebaldine , of the great General Waxstein ; the other , and younger of tho brothers deciding the day of Noruhngen in favour of the Imperialists , not losing an inch of ground in a battle of twenty-three hours' duration , with sixteen thousand slain around him : base murderers , brave warriors , close of km in this in
eccentric Irish family . Saints or soldiers , there is the eame- - consistency , making veritable history look like fiction . We see them enlightening the early gloom of northern Christianity by their scholars and missionaries , the greatest men of their time , then concocting legends unexampled iu their ubsurdity . vynen we Bollanmsts began their great collection of hagiogranhy they maae here a special exception , acknowledging that they c «> uld not be altogether responsible for tho truth of . the lives ot the Irish saints , too says Soutiiey in one of his Quarterly Review essays . In anotUei of his works he has himself given us such specimens , that / the m * credulity of the Bollandists ceases to surprise us . We have a
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JTune 2 , 1860 . J The Leader and Saturday Analyst . 519
Courts Op Appeal *
COURTS OP APPEAL *
Irish Character And English Counsel. Character Tho Irish Is
character tho lnsu is IRISH CHARACTER AND ENGLISH COUNSEL .
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Citation
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Leader (1850-1860), June 2, 1860, page 519, in the Nineteenth-Century Serials Edition (2008; 2018) ncse2.kdl.kcl.ac.uk/periodicals/l/issues/vm2-ncseproduct2350/page/11/
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