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been to constitute the Queen's Bench the only court of criminal appeal.
I may be permitted before concluding this review of the various schemes which have been proposed relating to the law of criminal appeal, to refer to the observations of Mr. Stephen, the Recorder of Newark-on-Trent, in his recently published work on the criminal law of England. The remedy which that learned author proposes is the following: "To constitute a court of law charged with the duty of doing openly and judicially what the Home Secretary at present does in secret. It might be enacted that if it appeared to the Secretary of State for the Home Department, that after the conviction of any person for any crime, new evidence or new reason to doubt the truth or accuracy of the evidence actually given had been discovered; or if the judge who tried the cause were dissatisfied with the verdict, the Home Secretary might call together a court, to be composed of the judge who tried the cause, one other judge, and the Home Secretary himself; who should call before them any witnesses they pleased, and examine both them and the prisoner (if they thought fit) in open court; and also, if they thought fit, hear arguments by counsel, and finally deliver judgment, either confirming, quashing, or varying the verdict of a jury as they thought proper. In order to protect the constitutional authority of the jury, it would be necessary to provide expressly, as a condition precedent to the summoning of the court, that the Secretary of State should certify that new evidence had been discovered; or that the judge should certify that he was dissatisfied with the verdict."
It is understood that the establishment of a court of appeal in criminal cases would not in any way interfere with the exercise of the Royal prerogative of pardon. That prerogative belongs to the Crown of right, and is absolute. No appellate procedure ought to supersede it, first, because it forms an important element in the nice distribution of constitutional rights between the Crown and the subject; and, secondly, because the free
interposition of the royal mercy in certain critical and exceptional cases, can alone give adequate relief against the injustice which a strict administration of the law might otherwise effect. It is now well understood that the exercise of this sovereign power depends altogether, in point of fact, upon the recommendation of the Home Secretary. Nothing can be more unsatisfactory than the present procedure at the Home Office in investigating the facts of a case after conviction. No doubt great pains are taken, and the most earnest endeavours are used for the purpose of obtaining the best information as to the intrinsic merits of the case, and of arriving at a just and proper conclusion. A great outcry was raised a few weeks ago against the Home Office, and it cannot be denied that the administration of justice was brought into great scandal. I do not propose to refer with any particularity to the convictions of Townley and Wright, or to make any comment upon the respite extended to the former or upon the execution of the latter. What is remarkable, and, indeed, deplorable, is this, that all the proceedings from beginning to end, in both instances, appear to have been conducted according to the strict requirements of the law, so that no blame can fairly attach to any one individual-and yet the result has caused a widespread dissatisfaction. We witness at this very moment the humiliating spectacle of a dissatisfied and angry public taunting the administration of justice with a servile leaning to the rich and a sullen indifference to the poor. I cannot join in the extravagant censure with which the Home Office has been recently aspersed: the mischief is to be attributed to the procedure and not to the functionaryfor I take it that the same results, if they had been attained by a public, deliberate, judicial investigation, would have been received with a respectful acquiescence, if not approbation. The Home Office, which was originally only a medium of inquiry for the information of the Sovereign, has now grown into a Court of Review, without rules of procedure or welldefined powers. Its investigations are secret. Statements
which would be rejected in a court of justice, on the ground of not being evidence, are received, and no opportunity is afforded to contradict or explain them. The inquiry is conducted by some person or persons who have no public responsibility. It is doubtful whether there is any jurisdiction to administer an oath on making an affidavit to be submitted to the Home Office. False statements may be made, and are in point of fact made with impunity; and, lastly, the whole investigation is ex parte, no notice of the application being ever given to the prosecutor. Statements are frequently sent to the Home Office relating to facts which are alleged to have occurred after the trial, which, if true, seem to change the whole complexion of the case. The truth of such statements are tested in a flimsy and imperfect manner, and yet upon those very statements the deliberate verdict of a jury may be cancelled. Instances have occurred where persons have been in court during a trial who have not ventured to give their evidence, and yet have afterwards made affidavits of facts which ought to have been properly inquired into in public court.
This state of things is anomalous, and cannot be tolerated much longer. There is no doubt that a time will come when the law of appeal in civil cases will be adopted as a model for the administration of the criminal law. To quote the eloquent and statesmanlike language of that great law reformer, Sir Samuel Romilly :-" It should be recollected that the great object of the penal laws is the protection of the innocent; the punishment of the guilty is resorted to only as the means of attaining that object. When the guilty escape, the law has merely failed; it has done no good, but it has done no harm. But when the innocent becomes the victim the law not merely fails, but it injures the persons it was meant to protect-it creates the evil it was to cure. Appeals are not to be advocated from mere motives of clemency, nor opposed for fear of the guilty escaping: they are to be supported by a far higher motive, the desire to make justice certain,"
VOL. XVII.-NO. XXXIII.
ART. II.-A USE UPON A USE.
LORD BACON gave to his intelligent readers the following judicious advice, which is by no means obsolete at the present day :-"Now let me advise you of this, that it is not a matter of subtlety or conceit to take the law right, when a man cometh in by the law in course of possession, and where he cometh in by the statute in course of possession; but it is material for the deciding of many causes and questions.'
This important distinction is worthy of the most careful consideration. A few concise remarks are now offered to the attention of the diligent student.
The statutes of 1 Richard III. c. 1, and 27 Hen. VIII. c. 10, being in pari materia are to be construed jointly, and this mode of interpretation is consistent with the intention of the makers of these enactments. The motive which induced them to frame the statutes, whether it were for the preservation of uses or for their extirpation, is at best but a remote clue to the interpretation. In either event, the means taken to bring about the end designed, is undisputed. The makers of both enactments intended, whatever may have been their conjectures as to the effect of it, to bring the use within the jurisdiction of the common law, in other words, to convert it into a beneficial legal estate. The statute of Richard took the initiatory step by investing the cestui que use with concurrent power over the estate with the feoffee to his use, and thus transformed the equitable into a legal estate. This statute proved inadequate to the end proposed, in so far as it failed to give cestui que use exclusive ownership of the estate. It even left sufficient power in the feoffee to enable him to destroy the estate of cestui que use. The statute in fact created a division of the estate at law into two independent parts, the seisin and the use, which it was the object of the statute of uses, in furtherance of the original design to invest the cestui que use with the legal estate for his own exclusive benefit, to consolidate and make one,
Where, however, the use was limited to a person who already had the seisin, the purpose of the legislature was anticipated by the act of the parties, and as the two parts thus united made one whole estate no room was left for the operation of the statute. A use united to the seisin filled up the measure of the estate hence the maxim that a use cannot be limited
upon a use. Lord St. Leonards denies the existence of any such prohibition prior to the statute of 27 Hen. VIII. Gilb. Uses, Sugden's ed. 347, n. (1) Sugden on Powers, 7th ed. 162, et seq.
His lordship ascribes the origin of the restriction to what he conceives to be an erroneous construction of the statute. But whether the interpretation given to the statute be right or wrong depends upon the question or issue; to wit, whether a use could or could not be limited upon a use prior to the statute. The signification of the term "use," which was employed, though not defined by the statute, must be sought in the preexisting law. If the maxim did not obtain in the antecedent law the statute would have gone through the series of uses limited, and executed the final use, as Lord St. Leonards consistently contends that it should have done. If, on the other hand, the maxim did obtain, the statute would have been, as the judges held that it actually was, exhausted by the execution of the first use. This decision upon the statute, therefore, is an authoritative declaration of the ancient law upon this point, and this his lordship virtually admits by finding fault with the construction given to the statute.
His lordship does not seem to appreciate the fact that the use was the complement of the seisin, making by its junction with it one integral estate, into which another use could no more be put than three halves could be compressed into one whole. A use, it should be borne in mind, is the beneficial ownership of the estate. Now two several beneficial ownerships cannot by any possibility co-exist simultaneously in the same estate; they are necessarily exclusive and adverse to each other, and when one prevails the other is defeated. The