The Express.
London, England, 1864-02-24 00:00:00

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LONDON, WEDNESDAY, FEBRUARY 2&

THE time has gone by for discussing the pro-
priety of some new Court of Criminal Appeal.
. The trials of SMETHURST, MIACHLA_N, WRIGHT,
and TOWNLEY furnish conclusive proof that the
appeal upon questions of law which is now allowed
is not sufficient. In every one of these cases there
has been substantially an appeal upon the facts.
The HOME SECRETARY has been compelled, often
rirely against his will, to sit as a judge of appeal,
and to confirm or overrule the decision at which the
judge and the jury who tried the case bad already
arrived. in short, an appeal as to the facts now
exists. The Home Sacerraar is the presiding
judge, and the Home-office is the place where it
assembles. It is vain to ignore its existence.
Such a court is a necessity. A civilized country
can no more dispense with such a jurisdiction
than it can dispense with the jurisdiction in
equity. Judges and juries are confessedly fal-
lible. Ample provision is made for reviewing the
conclusions at which they may arrive in cases of
contract and in actions for civil injuries. It is
simply absurd to suppose that life and death,
liberty and servitude, are not quite as important
as unpaid hills or a tainted character. And it is
obvious, therefore, that the same principle upon
which the right of appeal rests in the former case
may be used with additional force to justify it in
the other. The only question now is as to the
beet form in which an appeal in criminal cases can
be allowed.

The Bill introduced by Sir Frrzaov KELLY,
which now awaits the second reading, is an attempt
to supply the required court. The chief objections
against) the anomalous jurisdiction which is ex-
ercised by the Home-office are, that it is exercised
upon no definite principle, that it is exercised in
secret, and that the Hosts Secasr•av is not com-
petent to act as a judge of appeal. To try any
man for his life, or even to try the right to any
property, before Inch a tribunal, would not be
tolerated for an instant. But society has its rights
as well as the accused person, and the one is
entitled to as much protection as the other.
As things now stand, however, whilst the
chances of escape for the criminal are at • maxi-
mum, the security of society is almost ignored.
Now Sir F. KELLY'S Bill does certainly provide
for some of the defects of the present system.
Under its provisions, upon the certificate of •
barrister that the case deserves further investiga-
tion, an application may be made to any of the
Courts of Westminster-hall, or to three judges of
the Court of Criminal Appeal—who may sit at any
time of the year. The object of this application
may be either to set aside the verdict, or to orde7
a new trial. The result, if successful, in the first in-
stance would be to obtain• rule nisi,whichwould be
discussed before the full Court of Criminal Appeal.
The result of that discussion would be, either to
reject the appeal, or to order a new trial upon the
whole, or some particular facts It is intended, of
course, that this Court of Criminal Appeal should
have jurisdiction even to reverse the verdict, and
to give such judgment as may acorn expedient.
And amongst other things it would have power to
order a new trial on any collateral question, such
as that of insanity.
These may be very useful provisions, but
they do not meet the real difficulty. Notwith-
standing the decision of such a court the Hone
SECRETARY would still possess the power which he
now possesses to grant a pardon or to commute a
sentence of death into penal servitude for life.
This is the power of which the Home Szcarrsav
should be deprived, but as to which the Bill of Sir
F. KELLY is ominously silent. The Home SECRE-
TARY ought to be furnished with a statutory answer
to those importunate friends of convicts who be.
siege the Home-office and clamorously . insist upon
mercy. He ought to be able to say there is no
power in any Minister of State to advise the
SOVEREIGN to grant • pardon, or to overrule
the verdict of • jury and the decision
of a judge. Every case must be referred to cer-
tain eminent men, who are bound to con-
sider it in open court, and to take evidence with
respect to it. If there be any facts which can
throw light upon the guilt or innocence of the con-
victed man, let them be laid before that tribunal.
But there is anotherobjection to Sir F. KELLv's
B;11. It is seriously proposed that the certificate of
some barrister-at-law shall be required before any
application is made under the statute. Even
if all barristers-at law were honest and
learned, such a security is absolutely useless. The
solemn verdict of a jury under the sanction of a
judge ought not lightly to be set aside. But if
any two of the jury, or if the judge who tried the
case, or if the Hosts Ssearrsav should think the
case deserving of further consideration, the HOME
SECRETARY might under such circumstances Se
bound to refer the matter to Commissioners nomi-
nated for the purpose ; and the advisers of the
Crown might be bound to follow their opinion.
These Commissioners would at once assemble '
and hold their court without delay. There would
be no such tedions proceedings as are contem-
plated in the Bill now before as. They would of
course be clothe'l with all the powers necessary for
compelling the attendance of witnesses. In short,