§ Mr. Fitzroy Kelly ,
according to notice, rose to move for leave to bring in a Bill to allow of Appeal in Criminal Cases. Of the expediency, the justice of such an amendment in the law, he thought no unprejudiced person could entertain a doubt, and when he had stated the means by which he proposed to carry it into effect, simple, easy, inexpensive, and involving no danger to the rights of any member of the community, he trusted he should secure for his plan the sanction of the House and of the nation. It was a most remarkable thing, that in a country like this, so renowned for the excellence, purity, and efficacy of its judicial institutions generally—where, in every case of a civil nature, whether affecting lands, or houses, or merchandize, or character, or money, the administration of justice was the subject of universal admiration, the Criminal Law should be deficient in one great element of justice. In civil cases, if a party was dissatisfied with the verdict of a jury, or with the charge of a judge, he had an appeal from that verdict or that charge, and could carry his case from one court to another, until it reached the highest tribunal in the land. Yet, if a man were criminally indicted for an offence affecting his property, his liberty, nay, his life, and were found guilty, however strongly he himself, the bystanders, and the whole public might be convinced of his innocence, yet if the judge who tried him was satisfied with the decision of the jury, and saw no reason to disapprove of the charge which he had addressed to them, the verdict, however manifestly erroneous, the charge, however glaringly wrong in point of law, must stand, and the unhappy prisoner must abide his lamented fate. He may suffer in character or in property, he may be imprisoned, he may be transported, he may lose his life, and there is no remedy for him. In almost every civilised country throughout the world such a remedy was open to convicted persons, in criminal as well as in civil cases; in the one case as in the other, persons who considered themselves aggrieved by the verdict of a jury or the summing-up of a judge, had the power given them, by appeal, of seeking to have that erroneous verdict, that mistaken summing-up, rectified, and justice done to him, as against it. But here, however palpable the error of the judge 12 or of the jury, however convincing the weight of evidence which circumstances might bring to light after the passing of sentence, however decided the opinion of all other lawyers against the legal accuracy of the judge's summing-up, yet if the judge himself remained satisfied with the verdict, and with his own charge, in criminal cases the convicted person, however innocent, had no chance of escape from his sentence. This great evil, this great reproach, he proposed to remedy, by a very simple measure, namely, by assimilating, as nearly as possible, the practice of the Criminal to that of the Civil Law, giving, as nearly as possible, the same remedy to persons in criminal cases against an erroneous verdict or a wrong charge, as the English law gave in civil cases. It was in the highest degree surprising, considering the constant efforts which had been made by the Legislature to improve the administration of the law in this country in all its other branches, that it had not applied some remedy to this gross defect in our Criminal Law. Indeed, he could not conceive that this omission would so long have continued a just reproach to us, had it not been that the Members of the Legislature were not of that class of persons which for the most part became liable to criminal prosecutions. Had their characters, their property, their liberty, their life, been, in proportion, so often in jeopardy under the operation of the Criminal Law, as the property, the persons, the character, the lives of the classes below them in society, assuredly this most unjust incongruity would long since have disappeared from our criminal jurisprudence. It was only within a very recent period that the improvement had been introduced of allowing counsel to prisoners charged with criminal offences: it was most just that this improvement should be followed up by that other most essential feature in the due administration of justice, the giving convicted persons a remedy against the errors of juries and of judges. When the fallibility of human judgment, when our proneness to error was taken into consideration, there was unhappily too much reason to fear, that of the sentences which deprived our fellow-creatures of their property, of their good names, of their liberty, of their life, a no slight proportion were sentences founded in error, and therefore resulting in fearful, in fatal injustice, were 13 sentences under which innocent persons suffered a most iniquitous punishment. He could mention, among very many instances in which, by this discreditable anomaly in our laws, irreparable injury had been done to innocent persons (and some such instances had happened within his own experience), instances where, after sentence had been passed, circumstances had been brought to light, and proved beyond a reasonable doubt, which rendered it clear as day to all unbiassed minds, that the person condemned was innocent of the offence imputed to him, yet where the erroneous impression of his guilt remaining firmly impressed on the mind of the judge who had tried him, the sentence has been abided by, and the innocent man has suffered death simply and solely for want of that appeal which he would have had against a decision which in a civil matter should have passed against him for 40s. He would just mention one case in illustration of what he had staled. About nine years ago a man named Chalker was indicted, along with another person, for the murder of the gamekeeper of Miss Lloyd, in a wood at Hentlesham Hall, near Ipswich. The trial came on before a learned and eminent Judge now no more. Evidence was adduced that Chalker was in the neighbourhood of the wood at the same time that the deceased was there; there was some evidence of his having been detected poaching; of there being blood on his clothes; of his having been seen near the spot where the murder was committed shortly before and shortly after the discovery of the body; in fact, there was a great deal of circumstantial evidence, more or less strong; and the learned Judge, who, from a very early period had taken a decided impression against the prisoner, from the evidence, summed-up, fairly and impartially, indeed, yet at the same time most ingeniously bringing together every part of the evidence which appeared in his own mind to convict the prisoner before the jury. The prisoner was condemned, and sentenced to death. His fellow prisoner, who was acquitted, solemnly declared that Chalker was as innocent as himself of the murder. It was the universal impression of the whole neighbourhood—the clear conviction of all who knew the man, that he was innocent. The learned counsel who had defended him was so persuaded of his innocence, that he devoted many days to 14 the preparation of a memorial, in which he set forth all the strong evidence he had collected together, manifesting his client's innocence, and he submitted this memorial to the Judge, satisfied that at least it would induce him to order a respite, for the purpose of having further inquiries made; but the learned Judge's conviction of the man's guilt, and of the accuracy of the verdict and of his own charge, remained as strong as ever. He declared himself perfectly satisfied as to the guilt of the prisoner, and he consequently refused to interfere. He (Mr. Kelly) was not aware that there had been in that case any application to the Secretary of State for the Home Department; but if there had, the course adopted would have been to apply to the Judge, and when he supported by his decision the finding of the jury, it was not probable that any remission would take place. The result of the proceedings was, that the man against whom this conviction had been obtained was hanged, the Judge refusing to interfere, as he had satisfied his mind as to the guilt of the prisoner. It had, however, since appeared, that the man who really committed the murder for which that prisoner was hanged, had been present at the execution; but being afterwards unable to bear the load on his conscience which such a crime imposed, he confessed his guilt in India, where he had been sent as a soldier—he declared to his companions that he was the person who committed the murder, and that the man who suffered death for it was innocent. That was only one of the many cases which he might bring forward to show that innocent persons had frequently been capitally punished in consequence of having no power of appeal, and in fact, in consequence of there being no means whatsoever of remedy for a decision involving an innocent person. It might indeed be said to him that such cases as this must be always of rare occurrence, and that where there were real and substantial grounds for doubt as to the guilt of the prisoner, no judge would refuse an inquiry, and that the judge in such a case could reserve the point raised for the decision of the judges. To that he answered that it was not true in point of fact, for the subject had no right whatsoever to compel the judge to reserve a point, and he could state from his own experience, that the most learned and eminent judges might refuse to reserve a point, when it 15 might appear afterwards that the point was a good and valid one. He could state a case from his own knowledge in which that took place. Some years ago, a man was indicted in the county of Huntingdon for a capital offence, and convicted before a learned judge now no more. So soon as the evidence closed, he, who was counsel for the prisoner, submitted that although the man had committed a misdemeanour and was guilty of a grievous offence, yet he could not be convicted of the offence charged in the indictment for the capital felony. This he submitted before the finding of the jury, as well as after that finding, but the judge in each case peremptorily refused to reserve the point. He did not rest satisfied after having been twice refused, for he absolutely went five times to the judge in order to attempt to induce him to reserve the point. He waited on him in his own private room, and once went in the middle of the night, and so strongly represented the case, that the judge, who had on each occasion received him in the kindest manner, intimated that it would be unworthy of him to persevere longer in those attempts to induce him to reserve the point. The judge having thus so long peremptorily refused to reserve the point, the time arrived when the man was about to suffer the sentence of death, when he (Mr. Kelly) again waited on him, and besought him, and implored him, and indeed, insisted, that if the learned judge would not reserve the point himself, he could at least write to the Chief Justice of the King's Bench, and ask his opinion as to whether the point were good. That was the sixth application which he made to the learned judge, and on that occasion he at length succeeded, after more than an hour, in inducing him to write to Lord Tendered and the Lord Chancellor, asking their opinion of the point, and to that inquiry he received a reply from those learned judges, recommending that the point be reserved; the time at which the answer, with this recommendation, arrived, being only eight hours before the man would have been executed, if it had not been for that inquiry. A respite was accordingly sent just eight hours before the time appointed for carrying the sentence into execution. The point having been thus reserved, was argued before eleven judges in the subsequent term, and they unanimously decided that the objection was valid, and that the judgment ought to be reversed; the learned judge before whom the case 16 was tried having been one of the judges who came to that decision. That case was one of those which showed that, however merciful, or learned, and experienced a judge might be, it did not follow that he would always reserve a point which was submitted to him, even when it was a sound and valid objection. Now, he believed that nothing but the very strong course which he had adopted on that occasion would have induced the learned judge to write to the Chief Justice and the Lord Chancellor, and the result of the peremptory refusal to reserve the point would have been, that the sentence for the capital offence would have been carried into effect upon the prisoner. The course which he took, however, produced a contrary effect, and the man who was so near suffering the punishment of death, was now alive, a reformed man, and he believed a useful and honest member of society. Under the present system, no matter how clearly convinced of his innocence all the persons in Court might be, with the exception of the jury—no matter how unanimously of opinion the Bar might be that the law as laid down by the learned judge in directing the jury was laid down erroneously and through mistake of the judge—yet if the man were convicted, no remedy was provided—there was no appeal for the prisoner, the fiat of the judge was final, and the man might innocently suffer death or transportation, or any other punishment to which he was sentenced, without being allowed an opportunity of establishing his innocence. If he had adduced the case of an innocent man put to death, and of another man who had nearly suffered death, from this want of a power of appeal, and if he begged of the House to recollect that, supposing the decisions which affected those men's lives had been on matters in which a question of 40s. or 5l. was at issue, there would then be an appeal, was not that, he would ask, enough to induce them to apply some remedy to this state of things? Was that a state of things which ought to be allowed to continue in a country that was justly proud of her institutions? He had shown the evil that might arise from the refusal of the judge to reserve a point of law which was raised by the counsel for the prisoner. But the evil was not confined to cases where the judges refused to reserve the points urged for the prisoner; as even in cases where they agreed to reserve the point—where they were disposed to entertain doubts of the prisoner's guilt, 17 and to tale a lenient view—even in such cases the remedy afforded to the prisoner was exceedingly unsatisfactory. Suppose a man were indicted for an offence and convicted, and a legal objection being taken to the conviction, the point was reserved for the opinion of the judges, and the sentence was respited until the decision on the point so reserved; yet the remedy which was given to the prisoner was not a matter of right, but merely a matter of indulgence. He would ask the House were the subjects of this Realm to hold their lives depending on circumstances like these, where the remedy against an erroneous conviction was not a matter of right but a matter of indulgence? Such a state of things ought not to be permitted for one moment to continue, merely because those who suffered from it were principally of the poorer classes of the community. If the judge refused the appeal, as the law stands at present, there is no power to compel him to grant it, and when granted the prisoner was not entitled to it by law, but was indebted for it to the mercy of the judge. It was very well known to members of the Bar, that under the system which now prevails, one Judge would peremptorily refuse to reserve the same objection which another judge would reserve, so that it would in many cases altogether depend on the judge before whom a prisoner was tried, whether, perhaps, an innocent man were to suffer death or not. He could not, for his part, conceive anything more objectionable than the mode in which the objection was allowed under the present system—it was a mode of dealing with the objections not as of a right, but of indulgence, and no man ought to be placed in a situation where his life was to be affected in that way. The mode of proceeding, even after the point was reserved, was highly objectionable: it was not decided upon by the judges in a court of law—it was reserved in point of form to Her Majesty, who referred to the judges, and they met, not in open court, to decide upon it, but in the Exchequer Chamber, or formerly in Serjeants'-inn; and, having decided on the point at their discretion, they assigned no reasons for their decision. It was argued by counsel, no doubt, but that was not done as a matter of right, for like the reservation of the point, it was only as a matter of indulgence. If a verdict were given against a man involving a sum of 5l. or 10l., he might have a counsel, as a right, to argue in a case of appeal; but where a point was saved in a criminal case, 18 where the question at issue involved the life of a human being, there was no right to be heard by counsel. The proceedings took place in a very objectionable manner: sometimes counsel did not appear for the Crown, and sometimes the prisoner was not able to employ counsel—it was argued before the Judges, as he had already remarked, not in public court but in the Exchequer chamber. The Judges decided civil cases in the open court, in the Queen's Bench or in the Common Pleas, and the Judges in civil cases gave their judgments seriatim, and the public were able to understand the grounds of the decision; but in these criminal cases no similar course was adopted. The Judges delivered their decision in a private room, and it was only in a private manner that the announcement was made as to whether they recommended a pardon or the carrying into execution the sentence. In civil cases the Judges assigned their reasons for the decision, but in criminal cases, where a point was reserved for decision, they never assigned their reasons for the decision to which they had come. The consequence of that was, that while the law as regarded civil matters was looked to with confidence, there was no such assistance from decisions in criminal matters, and it required the mighty grasp of a master mind to reduce the Criminal Law into anything like a code. There were no reasons assigned for any judgments of this kind in criminal matters, and thus all the advantages were lost which had been derived from the mode of delivering judgments in civil matters. He had already shown the evils that might frequently result from absence of a right to appeal in criminal matters, when the judge refused inquiry, thus letting all rest upon the decision of the judge; but there was another portion of the subject to which he would call the attention of the House. If, after conviction, matter was brought forward which induced the Secretary of State for the Home Department to believe that the person so convicted was innocent, and that, in consequence of that belief, he applied to the judge before whom the case was tried, it would be seen that the whole case would rest on the decision of the single judge; for if the judge expressed his approval of the conviction, the sentence was generally carried into effect, and it should be a very strong reason indeed which would have the effect of inducing the Secretary of State for the Home Department to interfere against the opinion of the Judge. There was still another objection, namely, 19 that when an inquiry took place the ground on which the objection was made was laid before the Secretary of State for the Home Department; the evidence was laid before him, but he had no means of ascertaining if the evidence on which he was called on to interfere was exaggerated or not. He could not satisfy himself thoroughly as to its correctness or incorrectness, and he was, obliged blindly to judge from such circumstances as the respectability of the person making the statement, and thus it was, that a question affecting the life or liberty of a fellow creature was dealt with. There was a fearful responsibility attached to the Secretary of State for the Home Department in such matters. In one case there might be brought before him evidence which he might conceive sufficient to justify him in recommending a pardon, whilst, in another case, the evidence might not be sufficient in his mind to justify such an interference with the conviction, and, therefore, he would let the law take its course. Thus it would be seen that the life of an individual would be placed in dependence upon the decision of the Secretary of State or the Judge, and he had shown that, however merciful a judge might be, or however desirous to do justice he might be, such a system was one that was calculated in some cases to permit the escape of the guilty, whilst it allowed the innocent to suffer punishment. He was desirous to provide a remedy for these evils to which he had directed the attention of the House, and it was in order to provide that remedy that he ventured to propose the Measure which he was now about to submit to the House. He had stated to the House the course which was allowed in civil cases of appealing against an erroneous finding of the jury, or against a mistaken direction of the judge to the jury. The plan he proposed was to render the practice in criminal cases as nearly similar to that in civil cases in this respect as was consistent with the character of each. He proposed that in any indictment before the Central Criminal Court, or at the Assizes, or Quarter Sessions, or before any court having authority in criminal cases such as he had referred to, where there was a verdict of guilty, the prisoner might have a power to move by his counsel in the superior courts at Westminster-hall, for a rule to show cause why the verdict should not be set aside, or a new trial granted, or a verdict of not guilty returned, or in case of the 20 law having been erroneously laid down by the judge, that the judgment should be reversed. He saw no reason why, if the verdict of the jury were against the evidence, if there were cause to apprehend that the jury were mistaken in their verdict, and that there were grounds for grave doubts as to the guilt of the prisoner, or if it could be shown that the testimony of a witness for the prosecution was brought forward in such a manner as to come by surprise on the prisoner, and that he could prove that the testimony of such a witness was false—he saw no reason why in any of these cases, wherever the court was satisfied as to the justice of the application, that the motion should not be agreed to as at present, in civil cases, where the court is of opinion that the application is just and well-founded. He thought that there might be allowed in criminal cases the same power to the court, as nearly as possible, as that on which a new trial is now ordered in civil cases. He would propose also to give an appeal against the decision, if the judge admitted evidence in the trial that ought not to be admitted, or if he rejected evidence that ought to have been admitted, or if in summing-up the evidence, or during any other part of the case, he mistook as to a point of law. He proposed that in this case also the motion should be dealt with, as regarded the decision, exactly as in the civil cases at present, where the judges were satisfied that there ought to be a new trial, or the judgment reversed; and he should also propose, that in certain criminal cases, where the matter was of sufficient importance, there should be some power of appealing front one court to another, and even to the House of Lords, by means of a bill of exceptions or a writ of error, as the practice was now in civil cases. The exercise of such a power would, no doubt, be attended with great expense, and it might, perhaps, be rarely resorted to; but as there might be cases, the importance and magnitude of which would require some such course to be adopted, he thought it advisable to give in all criminal matters the same power of appeal in questions of law from one court to another as now existed in civil cases. Here it was, however, that the first practical objection to his measure presented itself. It might be asked whether, if he gave the power of appeal in all cases- whether, if he enabled persons to 21 make a motion to set aside a verdict, or to appeal against the judgment in capital cases, or in cases of great crimes, such a motion would not always be made, however groundless the objections. He thought if the matter were attentively and practically considered, no such evil would result from the adoption of his proposal. In carrying the measure into effect, he did not propose to give to the prisoner in all cases of conviction an absolute power of suspending the sentence that might be pronounced against him until he should have made his motion of appeal, and that appeal should have been disposed of. It would be absolutely necessary to leave it to the discretion of the judge to determine whether he would respite the sentence, or whether he would admit the prisoner to bail, or whether he would order him to remain in custody until the motion of appeal were decided. What he should, therefore, suggest, was, that in all cases in which a judge might have tried a prisoner who was found guilty, and who had given notice of an appeal, it should be in the power of the judge either to pronounce sentence accordingly, which sentence was to take effect on the determination of the appeal, if the conviction should be confirmed, or to postpone the sentence until the appeal should have been heard, or to pass sentence and to order its execution if he should think proper; because, were it otherwise, any one might, without the slightest ground, prevent a sentence from taking effect, by giving notice of an appeal, and in capital cases such a notice would, no doubt, be always given. He proposed, therefore, to leave it altogether discretionary in the judge, either at once to pass sentence and to order its execution, or to order that the prisoner should be kept in custody or admitted to bail until the motion of appeal should have been determined. That part of the measure would unquestionably be open to this objection—that it would be in the power of the judge, if he were perversely resolved on carrying the verdict into effect, to refuse to respite the sentence: and cases might occur in which after sentence had been pronounced and the penalty suffered, it would turn out on the motion of appeal that the judgment had been erroneous. But it was impossible to guard against mischief in all cases; and he thought that they might safely rely so far on the discretion of the judges as to conclude that 22 where a declaration of an intention to appeal had been made, whether upon a matter of fact or upon a matter of law, unless the case were so clear that no human being could entertain a doubt about it, a respite would be allowed, in capital charges at least. He believed, that if the measure were passed, justice would always be done. Where a frivolous sttempt was made to delay the sentence of the law by the declaration of an intention to appeal, the judge would of course discountenance such an attempt; and, on the other hand, where any serious doubt might have been suggested upon a matter of law, or respecting the propriety of a verdict, he took it for granted, that on a notice of appeal being given, the judge would always postpone sentence. He was at a loss to know what reasonable objection could be made to the measure. That advantage of the rich over the poor was incidental to the nature of things, and could not be completely removed. If it were said that the appeal would give an advantage to the rich over the poor, that the rich were able to afford it in all cases which the poor could not, and that it was thus practically making one law for the rich and another for the poor. If that argument were urged, then he should say that it would equally apply to the appeal in the courts of law, which was now granted in civil proceedings. The poor man in civil cases must often suffer from the want of money to proceed with an appeal, or to resist the appeal of a rich man against a decision. The advantage of the rich man over the poor man was therefore rather incidental to the nature of things than to this measure, and he could not see that if it were carried into effect, it would in itself possess any advantage for the rich man over the poor man. If a notice of appeal were given, for instance, on the part of a rich man, the judge need not admit him to bail, so he could have no advantage in that respect; whilst a poor man might be let out on bail, or on his own recognizance by the judge pending the appeal. There was only one case in which he should desire to give a power to obtain a respite of sentence against the opinion of the judge—he alluded to indictments on capital charges. He would provide that, when a person was capitally indicted, and there was a verdict of guilty, if the judge refused to respite the sentence until the appeal of 23 which notice had been given should have been heard, that person should have the right to appear by his counsel before two judges and the Recorder of London, if the case had been tried at the Central Criminal Court, and before the Court of Assize if the case had been tried at the Assizes, and those judges should have the power of respiting the sentence, if they thought proper, until the appeal was determined. He had heard it objected to the measure that the judges would not have time to deal with all the appeals to which it would give rise. But he should say in the first place, that if the measure were just in itself, it was surely no answer to the demand of justice made to the Legislature on the part of the public to say, that it would require some additional judges, and consequently some addition to the expenditure of the country. But he did not believe that such a necessity would exist if the measure were carried. If an appeal were granted in every case, it would consume half the time of the Courts of Westminster-hall to hear them; but it might as well be said, that because there was a power of appeal granted in civil cases, that, therefore, every man against whom a decision was given would appeal. That did not take place in civil cases—the Courts were not inundated with appeals, and why, then, after that experience, did they suppose that appeals would be so numerous in criminal cases? Indeed the fact of not allowing judgment to be suspended by the mere declaration of an intention to appeal, would be a great check on the unnecessary increase of appeals. With regard to the objection on the ground of delay, it could not be sustained, for if the application to set aside the decision were frivolous, it would be refused by the Court, and in this case the only delay would be that of making the motion for a rule to show cause. He was satisfied, however, that to answer there was to be no redress of an evil, because the mode of redress might cause some little delay, was a course which would not be adopted here. It was an answer which no Member of that House would be inclined to give. He was fully convinced that the power of appeal was one which was calculated to afford redress where injustice was done, while frivolous appeals were sure to be discountenanced, and he looked upon the measure which he was about to propose as sure to remedy 24 much of that injustice which he had described. Another advantage would follow from this measure, that House would no longer be made a tribunal of appeal in criminal cases. No Gentleman who had been a Member of that House for any length of time could be ignorant of the frequent discussions which had taken place on complaints made respecting the decisions of judges on matters of law. The various applications, for example, which were made to the House in the case of Frost after his conviction must be in the recollection of Gentlemen. And why was it, that persons who felt themselves aggrieved by the decisions of judges or juries appealed to that House or to the newspapers, and there canvassed the conduct of those functionaries? It was because they were denied justice by being refused an appeal. The law drove them to the worst tribunal that could be resorted to, and forced them to canvass in the public papers and in that House, the conduct of the judges. He had now stated the nature of the measure which he proposed to introduce. He had endeavoured to meet the objections that might be advanced against it, and had pointed out the advantages which he conceived would result from it. He believed it could be productive of no evil consequences whatever; it broke in upon no legal or constitutional principle—it invaded the rights of no one member of the community—it involved not the expenditure of a single shilling of the public money; and he believed it would tend to the advancement of the just and pure administration of the law. He, therefore, moved for leave to bring in a Bill to provide an Appeal in Criminal Cases.
§ Mr. Godson
seconded the Motion, and observed that the principle was already in operation in favour of those who could afford to pay for it; for an indictment for misdemeanor could be removed from the sessions or the assizes to the Court of Queen's Bench, and tried on the civil side, the whole proceedings being conducted as in civil cases. Thus, in cases of misdemeanor, offences which persons of high station were more likely to commit than felonies, an appeal existed; and if in misdemeanor, why not in felony? In proportion as the punishment was heavy, so ought the means of ascertaining the truth to be ample; and if there was an appeal in cases of misdemeanor, it ought also to 25 be in charges of felony, and even in that which was the highest of all—murder. There would be other opportunities of considering the measure, and he should reserve till a future time any further observations which he might feel it his duty to offer respecting it.
§ Sir J. Graham
said, that even if a person of less eminence than the hon. and learned Gentleman, who had introduced that Motion, had made the proposition which he had brought under their notice, and if that proposition had been made in a speech infinitely less able than the one to which they had just had the pleasure of listening, he should not have felt it consistent with his duty to resist the preliminary Motion for leave to introduce the Bill. The hon. and learned Gentleman, with the weight of his long experience, had said, that in his opinion the cause of truth, of justice, and even of mercy, required the existence of an appeal in criminal cases. Now, he had listened with great attention to the speech which had been made by the hon. and learned Gentleman, and he had been struck with an observation in that speech, which had raised a doubt in his mind with respect to the policy of the Motion. The hon. and learned Gentleman had observed with great truth that the administration of justice in this country had raised its character among the nations of the civilized world, and that in latter times the utmost attention had been bestowed to improve the administration of justice generally, and of criminal justice more especially; and the hon. and learned Gentleman had further remarked with truth that the anomaly— for an anomaly he admitted it was—the absence of appeal in criminal cases had existed for centuries, and that no law reformer had, down to the present time, proposed that an appeal should in such cases be given. Now, he did not say, that that fact was in itself decisive against the present Motion, but he thought it justified caution on the part of the House in at once coming to a conclusion so positive as that announced by the hon. and learned Gentleman. He believed that he was not in error in stating—and he was only mentioning those points in order to show the effect which the statement of the hon. and learned Gentleman had produced upon his mind—he believed that he was not in error in stating, that the defence of the proposal of the hon. and learned Gentleman mainly rested upon the analogy which he sought 26 to establish between civil and criminal jurisdiction, with reference to appeals. He should say, however, that to an unlearned mind that analogy did not appear perfect. He could see, or he thought he could see, a very great difference between civil and criminal cases. Without waiving, for one instant, the question of justice, the matter really to be considered in that case as coincident with considerations of justice—the paramount consideration was, what course in these matters was most conducive to public good. Now, in civil cases, to the public it was a matter of comparative indifference whether between two litigant parties considerable delay should intervene before the adjustment of their suit. But that was not so in criminal cases. He conceived that it was of the last importance to the public that punishment should follow quickly upon crime. The object of punishment was example. Public example was the real, and the only legitimate object of punishment; but punishment lost half its efficacy if it were long delayed after the perpetration of crime, and he did say, that whereas delay was no object to the public in civil cases, they had the deepest interest in criminal cases, that no delay inconsistent with justice should take place. The hon. and learned Gentleman had stated, that he was satisfied that frequent errors were committed in criminal cases. Tribunals were no doubt fallible, and he was far from saying that in criminal cases errors did not occur. But his experience had led him to a conclusion opposed to that at which the hon. and learned Gentleman had arrived; and although justice in criminal cases did occasionally miscarry, yet he believed that the criminal law was in general fairly administered in this country— that crime rarely escaped and that innocence was very rarely punished. He believed, that upon the whole that was the more accurate statement of the fact. Neither should it be forgotten that the appeal sought by the hon. and learned Gentleman was not a single appeal, but was in the nature of a double appeal. He could well understand the strong arguments urged in favour of an appeal on matters of law. It was certainly true, as the hon. and learned Gentleman had stated, that those matters were decided by one fallible judge; and there might be other objections applicable to the decisions of a judge on points of law which were not applicable to the verdict of a jury. That verdict was the decision of 27 twelve impartial men upon a matter of fact, those men being sworn to do justice, and being guided, although not absolutely led, by the learning of the judge. They had thus the common-sense view of the matter, aided by judicial learning, experience, and acuteness. There were, therefore, as it appeared to him, many arguments applicable to an appeal against the dictum of a judge, which were not applicable to an appeal against the verdict of a jury. The hon. and learned Gentleman would excuse him if he also stated that some of his remedies were altogether inconsistent with the arguments he had used. And first, with respect to the appeal from the dictum of the judge. If he had rightly understood the hon. and learned Gentleman, it was his intention to leave it to the discretion of the judge to decide upon what cases the appeal should be allowed to have effect. Practically that was the case at present; for it rested with the judge whether he would reserve the point for the opinion of his brethren. The hon. and learned Member had said that when a point was reserved, no reasons were assigned when sentence was passed. In a great majority of cases, where a point was reserved, sentence was not passed until an opportunity had been given for the consideration of the point reserved by the twelve judges; and when sentence was pronounced after the opinion of the judges had been given, if that opinion should be adverse to the party accused, he (Sir J. Graham) was led to believe that in this case the judge, in passing sentence, invariably assigned a reason. He was unwilling to occupy the attention of the House at this stage of the Bill, the more especially as the attendance of Members was so thin. He regretted that so few should have attended at the discussion of a measure of so much importance, and felt ashamed to confess himself unprepared for its introduction. Moreover, he had unfortunately led his hon. and learned Friend the Attorney General to believe that the Motion would not come on that evening, by which means his hon. and learned Friend had lost a large portion of the hon. and learned Gentleman's observations. Supposing other obstacles overcome, one great practical difficulty remained which the hon. and learned Gentleman had not got rid of—namely, the appellate tribunal. He was perfectly ready to admit, that in a question where justice and truth were concerned, all considerations of expense ought to be entirely 28 disregarded; but the fact could not be concealed, that they must have an appellate tribunal, composed of judges of the highest eminence, and the question presented itself, that without an addition to the present number of judges, it would not be possible to obtain an appellate tribunal. This being the case, the question was, whether it was expedient to add to the number of judges? For his own part, he confessed that he entertained a very strong opinion on this point, feeling convinced that nothing but the strongest necessity ought to induce the House to consent to any addition. He was satisfied that fifteen was as large a number —speaking with the highest respect of the learned profession to which they belonged—as the bar of Westminster Hall could supply; and the question of an appellate tribunal, therefore, involving a very large addition to the number of judges, must be approached by the Executive Government with the greatest possible caution. He had thought it necessary, in assenting to the introduction of this Bill, to guard himself and the Government to which he belonged with the greatest circumspection as to the course which it might be their duty to pursue on a future stage. He felt this to be a question of immense importance. The hon. and learned Gentleman had referred to a case which happened nine years ago, in which great doubts existed as to the justice of the conviction at the time when the verdict was found, but respecting which all doubts had been subsequently removed by the declaration of a soldier in a regiment in India, that he was the party guilty of the crime. He felt bound to state, that his experience in the administration of criminal justice had led him to the conclusion that a vague statement of that kind, made by a soldier in a distant country, earnestly desiring an opportunity, for some reason or other, to return speedily home, of a participation in a crime of this nature, did not afford anything like conclusive evidence that the party making the statement had really been guilty of the crime. Nothing was more frequent than those false assertions, and he could not think the statement of the hon. and learned Gentleman at all admissible as certain and conclusive evidence that the crime had been committed by the party confessing. He was not prepared to go further into this discussion on the present occasion. On the part of the Government he gave his willing assent to the introduction of the Bill, and he could not but express his satisfaction that a ques- 29 tion of such high importance should have been taken up by one so competent to deal with it. It would be his duty to consider the measure of the hon. and learned Member with the deepest attention, especially the practical provisions by which he proposed to carry into effect those principles which he deemed necessary for the proper administration of the criminal law.
§ Mr. Kelly
explained, that he had not intended to make the power of Appeal dependent upon the consent of the presiding judge; but to empower the judge at his discretion to cause sentence to be recorded and executed. The effect of which would only be — except, of course, in cases of capital penalty—that the prisoner could be confined, or transported, before the Appeal, his right to prosecute which was absolute, had been brought to a conclusion.
§ Leave given.