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most convincing manner the statement which I have just quoted. The prisoner was indicted for causing the death of a woman, by administering medicines to procure abortion. The learned counsel for the prisoner, Sir F. Kelly, in the course of the trial raised a question of law, and requested the presiding judge to reserve the point. The request was refused, the prisoner was found guilty and sentenced to be executed. Feeling the momentous importance of the issue to the prisoner, the soundness of the objection taken, and evincing a zeal in the discharge of duty, happily not singular, though seldom surpassed in the annals of the English bar, the prisoner's counsel eventually succeeded in inducing the judge to communicate with Lord Tenterden and Lord Lyndhurst, and to ask their opinion whether the point should be reserved or not. Fortunately they advised that the point should be argued. The execution was postponed, and the twelve judges, after hearing the arguments, decided unanimously that the question raised was fatal to the conviction, whereupon the prisoner was discharged.
I am told on the authority of gentlemen now practising at the criminal law bar-gentlemen who are among the leaders of that bar-that the injustice arising from granting discretionary powers to the court with respect to reserving points of law in criminal cases, is very great.
The following returns give some idea of the actual working of the law of appeal on questions of law in criminal cases.
The returns for 1857 show that the total number of appeals in criminal cases were thirty-six, out of which thirteen came up from the Quarter Sessions, twenty from the Assizes, and three from the Central Criminal Court. In fifteen of the above appeals the judgments in the courts below were reversed.
From this it appears that there were positively more cases of points reserved by the superior judges at the Assizes, than by the chairmen of Quarter Sessions, although the amount of criminal business in the sessions is greater than at the Assizes.
If it be said that the offences tried at the Assizes are of a more difficult and intricate character than those tried at Sessions (and that therefore the occasions for appeal are more frequent and urgent), the answer will be found in this remarkable fact, that the offences which form the majority of the cases reserved are those which actually arise within the jurisdiction of the Quarter Sessions-e.g., larceny and fraud.
In the year 1858, thirty-one appeals were heard in the Court for Crown Cases reserved; of which fifteen were referred from the Quarter Sessions, eleven from the Assizes, and five from the Central Criminal Court. Out of the above eight were reversed.
Cases of larceny and fraud formed the principal subjects of appeal.
In 1859, fifteen cases were referred to the superior court by way of appeal: of which six were from the Quarter Sessions, seven from the Assizes, and two from the Central Criminal Court.
In six of the above cases the original judgment was reversed. The cases heard on appeal chiefly related to larceny and fraud.
In the year 1860, nineteen cases were reserved at the Assizes and Sessions, for the consideration of the Court of Criminal Appeal; of those, fifteen were affirmed, three reversed, no judgment having been given in the remaining case; twelve came up from the Quarter Sessions, two form the Central Criminal Court, and five from the Assizes.
In the year ending September, 1861, twenty-two cases were brought to the Superior Court of Appeal, three of which were reversed. Thirteen of the above were from Quarter Sessions, seven from Assizes, and two from the Central Criminal Court; embezzlement and larceny form the subjects in which the greater number of appeals were granted.
These statistics appear to show:-1. That the offences in respect of which points of law are reserved are generally, and for the most part, those which come within the jurisdiction of
the Sessions as well as of the Courts of Assize. 2. That by far the greater proportion of those offences are tried at sessions, and yet the greater proportion of the questions argued on appeal in respect of them are reserved by the superior judges of Assize. 3. That in general the points reserved have been quite deserving of the consideration of the Court of Appeal. 4. That the prisoners tried at Sessions (forming the great bulk of prisoners) are not in so good a position to have the charges preferred against them investigated and decided according to strict law.
To continue this outline of the law of appeal in criminal cases, permit me to observe further that the Court of Queen's Bench will even now, under certain circumstances, grant a new trial in all indictable offences, and that upon disputed questions of facts as well as of law. Where in lictments originally found in the Queen's Bench, or are removed thither by certiorari, the prisoner upon conviction is entitled, ex debito justitiæ, to move for a new trial. It was for a considerable time doubtful whether the appellate jurisdiction of the Court of Queen's Bench extended to felonies, as well as to misdemeanors. That question was set at rest in the case of the Queen v. Scaife, Smith, & Rooke, 17 Q.B., 238.
That was an indictment for robbery with violence, removed by certiorari from the Hull Borough Sessions, and tried before Mr. Justice Cresswell at the York Assizes. A rule nisi was obtained in the ensuing term for a new trial, on the grounds of improper reception of evidence and misdirection. The rule was made absolute, and the Master of the Crown Office was consulted by the court as to the form of the rule, it appearing that there was no precedent for a new trial in a case of felony. The subsequent history of this remarkable case is no less curious than instructive. The rule was made absolute in Trinity Term 1851, whereupon the case was sent to York for trial before Platt, B., at the Summer Assizes, 1851. The trial was postponed at the instance of the prosecutor till the next Assizes. At the Spring
Assizes the prisoners came up to be tried before Alderson, B., but the learned judge, upon finding that the record had not been sealed, refused to try. The prosecutor, without informing the prisoners, then applied to Pollock, C.B., at Chambers, and attained an order for a writ of puredendo, under which the case was sent back to the Hull Quarter Sessions, where a verdict was returned against the three prisoners, although on the original trial one of them had been acquitted.
It would appear, then, that the prisoner who may be fortunate enough to have the indictment preferred against him in the Queen's Bench, or who may have succeeded in obtaining a certiorari, enjoys the exceptional privilege of appeal against the verdict of a jury upon questions of law and fact. The objections to this form of proceeding are obvious. It applies to very few cases, and can scarcely be available to poor defendants. Questions of law frequently arise unexpectedly in the course of an inquiry, and the discovery comes too late for the purpose of obtaining a certiorari; and even when from the beginning it is seen that the result will turn upon mere legal subtleties, the preliminary expense of obtaining the writ compels the majority of prisoners to take their trials in the ordinary way.
There remains one other mode of appeal in criminal cases. A prisoner, as the law now stands, is not strictly and irrevocably bound by the refusal or omission of a judge to reserve a point in his favour. He has, indeed, a remedy, but it is, in point of fact, almost useless, on account of the difficulty and expense of procuring it. The relief I allude to, is the supreme appeal by petition to the Crown, which is referred to the Lord Chancellor. The Crown, through the Lord Chancellor, will, on a proper case made, direct the body of the judges to hear the point argued. In the case of Wait (11 Price, 518), the Lord Chancellor having considered a point referred to him, directed the twelve judges to hear the same argued. The same was done in Fauntleroy's case.
Having now considered what the law of appeal in criminal
cases actually is, I venture to submit that in several important particulars, besides that to which I have referred, it is capable of amendment.
Whether a criminal trial be regarded as a litigious proceeding, in which prosecutor and prisoner are the parties, or as an inquisitorial act on the part of the State against one of its members, I think it beyond all question or argument, that the accused is entitled of right to be tried in a manner best adapted to elicit the truth of the matter. He is entitled, by the mutual rights and obligations of citizenship, upon showing reasonable cause for being dissatisfied with the decision of one tribunal, to have his defence laid before another. This is a matter of right, not a concession, because justice, even at the cost of delay or inconvenience, is the first and paramount consideration. In civil proceedings, such as proceedings for enforcing a contract, where only a few pounds may be involved, this right is now freely admitted. Unless we assume the infallibility of our legal tribunals, it follows logically that reasonable facilities should be afforded for testing the soundness of their decisions. Does it not appear strange that while a defendant, dissatisfied with the verdict of a jury, where the controversy is about a few pounds, has the indubitable right of appealing against such a decision, he is practically prohibited from seeking a similar relief where his very life may be in jeopardy? In civil proceedings the objection as to the delays, expense, the waste of public time, &c., arising from protracted litigation, have long taken a place subordinate to the principal and supreme consideration—justice. On the one hand, frivolous litigation ought, by every prudent means, to be checked; on the other, every fair opportunity should be afforded to eliminate the truth and vindicate the innocent. As an abstract question of right, therefore, there can be no doubt that every citizen, having just reason for being dissatisfied with the decision against him, whether in civil or criminal matters, is entitled to an appeal upon questions of law and fact.
But it cannot for one moment be denied that serious