The Sun.
London, England, 1866-09-05 00:00:00

SPIRIT OF THE PUBLIC JOURNALS,

TIMES.—The Home Secretary in this country has
to discharge one very responsible and important
office. He constitutes our only Court of Appeal in
criminal cases. In France this office is entrusted
to a C 010: de Cassation, and it has frequently been
proposed to supplement our own judicial system by
a similar provision. Such an institution, even ac-
cording to the analogy of our own law, appears but
reasonable. In cases where property only is at
stake a suit may often be prosecuted from court to
court till it is finally referred to the highest legal
authority in the kingdom. - In civil cases the power
of appeal is provided even to excess, and it cannot
but seem a great anomaly that the decisions of
criminal justice, which have far more serious con-
sequences, should be wholly exempted from any re-
gular legal revision. A man may be convicted of a
capital offence, and condemned either to death or
to a civil death in a long term of penal servitude,
and, however unjust the verdict, he has no oppor-
tunity of having it judicially revised, and, if neces-
sary, reversed. A technical flaw in the proceedings,
as in the case of Charlotte Winsor, may be referred
to a superior court ; but for the grossest misinter-
pretation of evidence, or the most palpable preju-
dice on the part of either judge or jury, there exists
in the ordinary course of law no redress whatever.
For the supply of this glaring deficiency we are
obliged, in cases of material injustice, to resort to
the clumsy expedient of applying through the
Home Secretary for the clemency of the Crown.
Such a course obviously fails to answer the strict
demands of justice. At the utmost it only removes
the consequences of the conviction, without redress-
ing the injustice of the conviction itself, and it often
fails even to do as much as this. The process is
generally slow, except in cases where the sentence
of death has actually been pronounced, and the
prisoner may be subjected to all the indignities and
hardships of a felon before he can receive the par-
don which implies thatthey were wholly undeserved.
But the more unsatisfactory such a method of appeal
may be, the more necessary is it that it should be
rendered in practice as efficient as possible. The Home
Secretary repsents the only authority which is su-
perior to a British jury in criminal cases, and it-is
incumbent on him to compensate by his vigour
and decision the want of a more competent and
satisfactory tribunal. If the energetic performance
of this duty could ever be expected of a Home Sec-
retary, it would be from the member of a Govern-
ment whose' party have strenuously resisted any
amendment of our anomalous system. If Mr. Wal-
pole considers that a Home Secretary is quite com-
petent to perform the duties of a Court of Appeal,
he should be especially careful in his own person to
assume the whole responsibility of the office. The
public, therefore, have great reason to complain of
the course Mr. Walpole has adopted in the now
notorious case of 44 the Queen v. Toomer," and he
has succeeded in supplying a most conspicuous illus-
tration of the advantages of our present system.
The principal facts of the case were recapitulated in
a letter which appeared in our 'columns on Monday
from a fellow-townsman of Toomer. This unfor-
tunate prisoner was convicted at the last Abingdon
Assizes of committing a rape upon a Miss Partridge,
and was condemned to 15 years' penal servitude, a
sentence which he is now undergoing. The strongest
considerations were adduced from the evidence to
show that whatever might be the offence which
Toomer had committed it could not possibly be re-
garded as a rape. The case was referred to in the
House of Commons, and a memorial was in due
course forwarded to the Home Secretary from the
neighbourhood in which Toomer lived. There was
a unanimous feeling that a gross injustice had been
committed, and this was urged, not in opposition to
the evidence adduced at the trial, but on the face of
it. Upon the case thus being referred to him by way
of appeal, Mr. Walpole first sends for the judge's
notes ; and then replies that he does not think he
ought to interfere with the conclusion which the
judge and jury deliberately deduced from the evi-
dence. It is not his office, he appears to urge, to re-
verse the decision of juries. If Mr. Toomer's friends
desire his intervention, they should refer the case,
he says, to another jury by indicting Miss Partridge,
the principal witness, for perjury,. and " if they are
successful in gaining a verdict, it will be open to
him to interfere." Irut suppose they are not suc-
cessful in gaining a verdict ; and suppose, for the
sake of argument, that the first jury have perpe-
trated a great injustice, and the second jury have
supported the injustice, does Mr. Walpole mean to
say that he has no power to redress the wrong thus
committed? If such a supposition were true, it
would follow that we have no superior authority to
appeal to at all, and if one blind jury follows the
lead of another there is no power in England to
correct their errors. But such a proposition is
absurd. Mr. IValpole, as we have said, stands in
the position of a Court of Appeal ; and the mere
fact of his sending for the Judge's notes indicates
that he possesses a power of revision. It is not his
office merely to execute the verdicts of juries ; it is
his business to revise them. What is alleged is that
a jury have plainly misinterpreted the evidence put
before them, and Mr. Walpole is appealed to that
their decision may be reversed. Of course if he is
candidly of opinion that no injustice has been coin-
mitted, he must leave matters to take their course,
but if in his judgment the evidence does not bear
out the verdict, it is his duty to say so, and to
quash the conviction. This is the inherent responsi-
bility of his office, and he has no right to throw it
upon the judge and jury, or, still worse, upon
another judge and another jury. It is as absurd as
if when an appeal Caine before the Lord Chancellor
he were to say that he could not interfere with the
deliberate decision of the Court below. A Home
Secretary is a bad Court of Appeal, no doubt, but
we have no better, and when a case is referred to
him we have a right to expect a distinct opinion
from him, on his own responsibility, one way or the
other; if not, he might as well abdicate his office.
It does not need a Secretary of State to in-
form us that a witness may be prosecuted for per-
jury. If Mr. Walpole has thus evaded the plain
duty of his office, he has equally misapprehended
the precise point which was referred to him. He
tells Mr. Toomer's friends that Miss Partridge may
be prosecuted for wilful and malicious perjury.
Every one can perceive the hopelessness of such a
prosecution. Not to speak of the susceptibility of
a British jury, it is obvious that the only direct
evidence which could be opposed to the statement
of Miss Partridge would be that of Towner him-
self, which would be worthless for such a purpose.
It is one thing, moreover, to cast a doubt upon the
strenuousness of her resistance, and quite another
to produce satisfactory evidence of wilfulness and
malice in exaggerating it. But in appealing for
Mr. Walpole's intervention no charge of perjury
against the witness was implied. Of course, if she
made a criminal charge at all, she designated the
crime as rape, but her statement of facts may be
admitted without assenting to her legal conclusions.
The question proposed to Mr. Walpole is whether,
assuming her evidence to be true, and an offence to
have been committed of such a nature as she al-
leged, it amounted to the crime of rape. It was
upon this point that the opinion of the public was
so decidedly pronounced, and we cannot understand
how any impartial person can have hesitated to sup-
port their universal conclusion. Here is a young
woman who, having been induced to come to the
house of an unmarried man upon false representa-
tions, consents, nevertheless, to remain, and to live
on terms of intimacy with him. He soon makes
his purpose plain, but she does not attempt to es-
cape. When he has committed the offence with

which she charges him she condones it, and con-
tinues to live with him. She then discards the
precaution of having a servant to sleep with her,
and leaves her bedroom door unlocked ; and it is
not until she has spent a whole night with the man
she accuses that she brings this charge against him.
It has not been sufficiently observed that the jury
themselves recommended the prisoner to mercy on
the ground that the prosecutrix had been " indis-
creet," and it is impossible not to suppose that the
sentence was made designedly severe with the view
of drawing public attention to the case. There is
nothing to be said in palliation of Toomer's con-
duct, but it is ridiculous to call his offence rape,
and it would be a monstrous cruelty if he were left
to endure 15 years' penal servitude. It is this plain
injustice which Mr. Walpole is called on to remedy,
and he will neglect his duty if he omits either to
reverse the verdict or to say plainly, which we think
impossible, that he considers it just.
lIERALD.—" To the north-west of Italy there is
a great Power called France, to the north-east of
Italy a great Power called Austria ; what I want is
a check on the ambition of France." These were
the words of Mr. Roebuck when he returned- to
address the electors of Sheffield after a tour in
Austria, when the civilities of archdukes and the

smiles of archduchesses subdued his anti-Imperial
and democratic sentiments. Mr. Roebuck, how-
ever, was the advocate of Austria not because he
sympathised with her greatness, but because her

greatness was a check on the ambition of France.
What Mr. Roebuck's views are of the present crisis
we must learn at another Cutlers' Feast ; but no-
thing can be more remarkable than the change that
has taken place on the Continent since these words
were spoken. A great empire has, iii the language
of the First Napoleon, ceased to exist. It has been
replaced by a still greater Power, which has sprung
out of the chaotic elements of Northern Germany.
No change in dissolving views is more remarkable
than that which has, in an instant, replaced the
House of Hapsburgh by the House of Hohenzollern.
There was great force in 11 I r . Roebuck's observa-
tion, and the argument which he applied to Austria
is equally applicable to what we may fairly call the

eOl.
w Prussian kingdom. It is undoubtedly in
the
interest of Europe and of peace that there should
be a counterpoise to the weight and authority of
France. It is this instinctive feeling of the nation
which has induced our countrymen to look on idun-
moved while treaties have been torn up, and our el
and ancient ally has been spoiled of her possession!
and her prestige • the increased power of Prussia 1811
the defence of England. Not against the Frenc
Emperor ; for, in spite of all that Mr. Kinglake may
write or say, the Emperor we firmly believe whin
he again declares his empire to be peace. But even
Emperors are mortal, and if the Emperor is Peaced:
ful, France is not always in that mild frame of Eaul
But we may be well assured that Prussia Will not
combat less energetically against the opinions r
presented by the drapeau rouge, should it ever s.
unfurled again, than she has combated, against Au.re
tria. Before Bismarck urged her against the eln,.Pc; it
he conquered the democracy at home, and he did
by borrowing the arms of that formidable foe. re
n'y a qu'un moyen," says a great writer, " de vain`",!.
la Democratic re,,nante, c'est de lui emprunter lee
armies ; le travail, et le talent." Certainly theseis
arms have not been wanting to Count Bismarck. ,
is well to talk of a needle gun, or the celerity OL,
marches, but these are the least part of the eeni,u,,,i
nation of merit which has achieved such unparallexu,
and instantaneous success. It has been most truly
remarked that since the French Revolution, seri!,
den and so great a change has not been rote us
the map of Europe. Old reigning houses, illust“%t
titles, free and independent cities, depende f
nationalities, have all vanished like the allui °
Xerxes.

Ho counted them at break of day,
And when the sun set, whore wore they ?"
Flavit Bismarck et dissiputur. We seem to awak4.B
1,0
from a short sleep, and find—like the tailor b7O
" Arabian Nights" ourselves transplanted ie;
another land. It is Germany ; but the living
many of yesterday no more. Princes may be seleo;
like Belisarius, wandering about, and begging 00
an obolus, but, unlike Belisarius, their brig-0
preceded their misfortunes. The awakening
now. More enlightened counsels, a more diger!
ing policy, a Bismarck among their stateswteseu!
might have saved many of these small Statio
No needle gun, or even no personal valour, ea.ago
have achieved such results had Prussia net
enlisted, fighting on her side, the weakne:be
and internal dissensions of the States whiet,"d
has now and for ever incorporated into her gang,
dom. When Mr. Roebuck pays another visit te Gbh
many he must make Berlin, and not Vienna/lig,
head-quarters. As we have said, from an Beg.or
point of view, and after all that is the point of ewe
from which we must regard foreign affairs--all to
are glad to see that is the desire of Lord StanieJto
do so—if there is required a counterpoise t,.,° he
power of France, it matters not whether it is isikej
found at Berlin or at Vienna. It was well relna,rtho
by one of our most eminent diplomatists
battles of Solferino and Magenta were as danger-
ton us as if they had been fought in the wealds of 1%3;
and that was because to weaken Austria at„,„e.
time was to strengthen France. It is not "d,
serving to assert that, had the Austrian arnlY sal
wanted to Berlin, and gathered together allthe Olio
States to stamp them as her own, as Prussisned,
done, the result, as far as England is coueeteic
would have been the same. We are only goingATlv
to the old theory of the balance of power. fight
by good fortune, instead of having ourselves to
for that object so essential to the peace and eeil,be
dente of Europe, it has been obtained for us by the
energy of the man whose will has destroyed ter,
remnants of old feudal Germany, and whose ae eak
mination will collect the scattered atoms of
Governments into one great and powerul nationa