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 conflict 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 disc ol vain
the wher, or in-
dulging self-will, or making
n r interests
the subject of an unseemly wra,, . for forensic