The Sun.
London, England, 1867-09-30 00:00:00

Social Science Congress

The sections of the Social Science Congress
commenced their sittings on the 19th inst., at Bel-
fast. The business of the day was opened by an
address from Mr. Justice O'Hagan, president of
the Section of Jurisprudence. An illustration of
the really Catholic spirit which pervades the mem-
bers of the association is afforded in the fact that
the address was delivered in the Elmwood Pres-
byterian Church. The rigid Puritans entertained
not the slightest scruple about appropriating the
sacred edifice for this occasion to the benevolent
purposes of science, nor did the learned judge and
his co-religionists feel any prejudice against
assembling in a place set apart for the propagation
of a different faith. The church, we are told,
was densely crowded by a fashionable assemblage.
Lord Dufferin occupied the chair.
The address was a learned and eloquent prelec-
tion on " jurisprudence, and the amendment of the
law." Mr. O'Hagan pointed out the signal service
rendered by the Association in making the recog-
nition of the importance of jurisprudence promi-
nent and impressive. He noticed the defective
system of study which until recently was pursued
by professional men, who thought it work enough
for a laborious life to approach a mastery of our
own laws and procedure, and so had their faculties
as pleaders or conveyancers sharpened to preterna-
tural acuteness, and were varied and profound in
their case learning, but had no care for the learning
which elsewhere was deemed essential. He re-
ferred to the examinations and lectures which have
been established in England and Ireland to supply
this want, and observed that though we have
made progress there is still a startling difference in
this respect between these kingdoms and the con-
tinent of Europe. It behoves us, then, to go on
with the work which we have well begun. After
citing the example of illustrious lawyers whose
labours should stir to honourable rivalry, and
tracing the connexion of the laws of England with
the Roman jurisprudence, and the action of the
Roman code in Courts of Equity and Admiralty,
Ecclesiastical Courts, and Courts-Martial, and
quoting the eulogies by learned authorities of the
method and precision which distinguished the
_writings of Roman jurists, he proceeded to notice
the value of such habits even in the department of
Parliamentary conduct which has to do with the
preparation of our Statutes to urge the necessity
of codifying our laws. He made an eloquent
appeal to the young students to exalt and adorn
their portion of the profession by enriching their
intellects and improving their moral culture. He
then alluded to the question of the assimilation of
the laws of England and Ireland, expressing his
approval of the principle, but observing that we
should not assimilate merely for the purpose of
assimilation. He noticed the remarkable fact that
Ireland possesses a register of deeds since the
sixth year of the reign of Queen Anne, while Eng-
land remains without any such general register.
He glanced at Lord Cairns's Record of Titles Act,
the effect of which he said he was not at present
in a position to judge. Another legal institution
in which Ireland had anticipated England was that
of the County Courts. He suggested that the
equitable jurisdiction given to the English County
Courts should be extended to this country.
Another remarkable instance of Ireland outstrip-
ping England was in the matter of public prose-
cutions. Upon this subject he observed :
I was surprised, when I had the pleasure of
meeting the Association in Dublin, in 1861, to hear
that a very distinguished visitor from England—a
man equally eminent in law and letters—declared
he had never known of our possession of a system
of public prosecution in Ireland. It was an illus-
tration of the truth, that some of the people of
these kingdoms are better acquainted with the
customs of ancient tribes and the doings of foreign
nations, than with the condition of their own fel-
low-subjects, to whom, though divided from them
by a narrow channel, they are bound by identity
of language, intelligence, and interest, making it
their common duty and manifest advantage to cul-
tivate that knowledge of each other, which, among
civilized men, breeds kindly feeling and stimulates
to mutual service. We have, in fact, had a public
prosecutor for a very lengthened period. The
Attorney-General of the time discharges the duties
of the office ; and he is assisted by a large staff of
counsel and attorneys, who act under his direction
and control, at the Commission Court in Dublin,
the Assize Courts, and the Courts of Quarter Ses-
sions. The more important criminal cases are all
submitted to him, in the first instance, that he may
consider as to the propriety of proceeding with
them, and give such directions as he may deem
proper. And only when he declines to prosecute
are private persons allowed to intervene. Even
so, he retains his right to prevent them from pro-
ceeding, by entering, at his discretion, a nolle pro-
sequi or any indictment they may be permitted to
prefer. These are the general outlines of our
system, on the details of which, of course, I do not
enter. It is capable of much improvement ; but,
upon the whole, it works efficiently for the accom-
plishment of impartial justice, and to the general
satisfaction of the community. England has no
public prosecutor. The Attorney-General, save
in cases in which he is specially engaged, has no-
thing to do with the management of criminal trials.
The duty of prosecution is cast upon the injured;
and the Executive Government does not charge
itself with the responsibility of prompting them to
activity, restraining their excesses, or assisting
them to just and reasonable conviction. " The
most exalted functions of the Crown and the most
sacred rights of the subjects, are left to the discre-
tion of attorneys and policemen." These strong
words are not mine. They were spoken by Mr.
Phillimore, when he introduced into Parliament a
Bill to supply the want which he earnestly deplored.
And this condition of things is allowed to continue
although the appointment of a public prosecutor
has been urged for many years by the best and
wisest men in England—including her last three
Chief Justices—and has had the emphatic sanction
of a Royal Commission in 1844, and a Parliamen-
tary Committee in 1856. I know that the prin-
ciple of action involved in such an appointment
has been, more or less, the subject of controversy.
I have myself been obliged, in the House of
Commons, to defend the Irish practice against an
able Anglo-Irish friend of mine ; but it seems to
me very plain that that practice, at least, and its
general scheme and operation, is worthy the best
attention of jurists in England, with a view to its
absolute or modified adoption there. The supreme
law of social safety is the warrant, as it should be
the bounding measure, of the infliction of punish-
ment, by man on man. That infliction is not de-
signed to compensate for individual wrong, or satisfy
individual vengeance. The " lex talionis "of the
Hebrews is obsolete ; and we hold in horror the
" vendetta "of the south. We punish crime only
that we may prevent the repetition of it, and work
the amendment of the criminal. Vindictive justice
does not belong to human law. It cannot penetrate
the depths of the soul, and gauge the worth of
human actions by reaching their hidden springs, in
the tangled motives and the various training which
make men what they are. It must be guided, in
its conflict with fraud and violence, by a regard for
the results to the community which requires pro-
tection, and to the offender who needs reform.
Such are the principles which, in my judgment,
should govern all penal jurisprudence. They are
recognized by our ancient law, which institutes
prosecutions universally in the name of the Sove-
reign, as the representative of outraged society, and
makes the accused responsible, not to his accuser,
but to the State. The course of our criminal pro-
cedure, pursued in the light of these principles,
should be stately, calm, and passionless. The
prosecutor should act in a judicial spirit. He
should be impregnable to any influence of fear or
favour. He should labour to discover truth and do
justice, without any wavering from the clear line
of duty, to undue pressure on the one side, or
imbecile tenderness on the other. He should be
conscious of his great responsibility in dealing with
the interests of liberty and life, and beware, while
he deals with them, of displaying temper, or in-
dulging self-will, or making those sacred interests
the subject of an unseemly wrangle for forensic

victory. Such conduct of criminal causes the public
prosecutor can secure ; but, if they be committed to
the management of individuals—who may be poor,
or corrupt, or revengeful—it will be sought in vain.
The poor man may not have the time or the means
to prosecute effectually. The corrupt man will
compromise with his adversary. The revengeful
man will violate honour and falsify fact to glut his
malignant hatred. And so, the law will not be
enforced at all, or enforced unjustly. Surely the
system under which such results are possible is a
reproach to the great country which has so long

endured it if it deserves the condemnation pro-

flounced on it in the speech to which I have already

adverted as " unwise, preposterous, and indecent."

I have ventured to invite notice to our Irish prac-

tice in this respect as furnishing a safe and well-
tried model for imitation ; and it is not less worthy
of that notice because a practice in many respects
similar has long prevailed in Scotland with great

public advantage. Ours may, perhaps, have more
adaptation to England from the substantial identity
of the English and Irish criminal law; but it might
profitably be modified by the adoption of some-
thing like the Scotch machinery of the Procurator
Fiscal's office for the conduct of the early stages of

penal procedure. We rely too much upon the
coroner ; he is an ancient and venerable officer,
but " crowner's quest law " has been ever in disre-
pute, and my experience is that the preliminary
investigations which he institutes in this country
tend often and in various ways to the ultimate
defeat of justice. I have no time to discuss the
grounds of this opinion. Ido not mean to extend
it to the disparagement of many of the functions
of the coroner, with which I have nothing here to
do ; but, lauding our Irish practice, I think it
right to qualify my commendation by indicating
the improvement which it may usefully derive
from the example of Scotland.

Having adverted to the Landed Estates Court,
the Irish Bankruptcy code, and the resident magis-

: -
tracy as suggestive of beneficial assimilation, he
expressed his regret that, while the revision of the
English Statute Law proceeds with vigour and
success, this needful work has not yet been effectu-
ally begun in Ireland. On the other hand, he
congratulated them upon the successful commence-
ment of the publication of the ancient laws of Ire-
land. He observed :

The Brehon law had prevailed in Ireland for
ages before the coming of St. Patrick. Like our
common law, it was not composed of written
statutes, but of the decisions of the Brehons—
the judges of the land at that remote period.
My friend, Dr. Ferguson, has published :an admi-
rable paper, full of ingenuity and suggestiveness,
" On the Rudiments of the Common Law, discover-
able in the Published Portions of the Senchus
Mor ;" and I have no doubt that speculations and
researches such as his, in reference to the entire
body of the Brehon Code, will be productive of
very rich results. To the study of that ancient
system, which for so many years held sway in Ire-
land, some of us, children of the soil, will be at-
tracted, as by " ancestral voices" from the buried
past. When the Queen's Colleges were established
each of them had a small endowment for a pro-
fessorship of Iris!). In two of them that endow-
ment has been diverted to other purposes, and
the professorships are abolished. As to the third,
the same course is contemplated. The time was
strangely chosen for such a questionable act,
when Englishmen such as Mathew Arnold and Pro-
fessor Morley are labouring with generous enthu-
siasm to assert the dignity and celebrate the
achievements of the Celtic race ; when Germany
produces an unmatched Irish grammar, and Con-
tinental scholars, recognizing the wisdom of the
Council of Liebnitz (Op. iv., 131), who urged the
cultivation of the Irish language—lingua; Hiber-
nicx—for the general purposes of European lite-
rature, found in the pursuit of Celtic studies the
necessary and efficient means of advancing ethno-
logical and philological inquiry. Irishmen have
been justly reproached as " incuriosi sitorunz," but
that reproach would not have found confirmation
in a change so needless, so injurious, so little in
harmony with the spirit of a self-respecting people
and the tendency of cultivated thought throughout
the world. I trust that the publication of the
Brehon laws, and the attention it must attract to
Celtic literature and jurisprudence, may contri-
bute to make plain and undo quickly the mischief
of this retrogressive step. We may labour, in all
proper cases, to assimilate the laws of the three
kingdoms, giving for that purpose from every dis-
trict what light and help we can reciprocally fur-
nish ; but we should maintain for all the integrity
of their independent judicatures, in the assurance
that they will not less enjoy the benefits of a com-
mon code, if it do not aim to subordinate any
one to any other of them, or unduly exalt a part,
at the expense of exhaustion and depression, to
the rest. On this matter I can speak freely, as I
speak without personal interest. In my position
men bid farewell, not always joyously, to hope and
fortune, and my warning counsel has no taint of
self-seeking or indirectness when I say that, for
Ireland at least, it is essential to maintain a high
judiciary and an educated bar, if she would pre-
serve anything of the informed opinion, the pro-
ductive energy, and the public spirit, without
which a people stagnates and sinks into contempt.
The sections assembled after the delivery of the
address and discussed numerous topics.

SPEECH OF THE BISHOP OF ORLEANS

AT MALINES.

After congratulating his hearers on the zeal
which the Congress has excited among its members,
Mgr. Dupanloup said he considered it as the focus
from which the flames of the sacred fire of the
Church radiating in every direction, had spread
from country to country and people to people, to
the villages in France, to the depths of Germany,
into Spain, to Italy, to Switzerland, across the
billows of the broad ocean, to North and South
America, and even to the desert East, to cheer
and to inflame. It was only just now, said he,
while perusingthe two volumes of the last Congress,
that my mind was refreshed with all I saw there ;
how many high and important topics had been dis-
cussed ; what deep questions had been settled ;
what vital counsels had been taken ; what re-
solutions and what useful institutions had been
formed. I say, when I reflect on all this, lam
struck with wonder and gratitude. Yes ; addresses
and congratulations are offered you on all sides.
Your advice, your help, your co-operation is
sought ; your example is imitated ; and the fire of
your zeal has set on fire the hearts of other nations,
and the good work—the bonum opus—you have be-
gun, will, and has already become, a grand and
sacred edifice, and what is more, will expand into
an immortal crown for yourselves individually and
your nation which shines pre-eminent in this work.
I heard a friend, a native of Hungary, pay you
lately, in the name of his noble country, the homage
of his grateful admiration. Let us give thanks to
Him who is the Giver of light and all good and all
fertile inspiration, and after Him to you, gentle-
men, the persevering organizers of this assembly,
to your most worthy and most eminently-pious
Cardinal, His Grace the Archbishop of Malines,
your excellent pastor who, in his wisdom, has
found courage enough to uphold your work, in
concert with many, and in spite of more. (Long
applause.) The presence of the Bishop of Namur
prevents me from expressing all the devotion and
homage I feel for him. At Liege, now twenty-one
years ago, I took up arms under his banner, and
followed in his example and under his auspices.
Years have fled ; they have aged one, but they
have only more and more developed his zeal, his
eloquence, and his devotion. Now that I have dis-
closed my first thoughts to you upon your noble
work, I am not going to entertain you with words
to excite your fervour, or to influence your hearts,
already so well disposed to every Christian feeling.
No, really it is not necessary to excite your en-
thusiasm ; I ought rather to damp your ardour—at
least as regards those who address you, since, I
remember your zeal led you so far once as to deprive
a speaker of his watch that he might not perceive
how long he was before you. (Laughter.) I will
not do as I did three years ago. I will not abuse
your good nature. (" No, no." " Speak on ; speak
as long as you are able," from all sides.) Indeed,