The Sun.
London, England, 1859-09-09 00:00:00

'COMeT- OP-CRIMINAL

TO THE EDITOR OF THE DAILY NEWS.
Sir,—lt is now a period of three years since I ad-
dressed the public, through the medium of your
journal, on the subject of a grave defect in our cri-
minal jnrisprudence. A long familiarity with
of
courts law, and with the machinery to which we
resort for the detection and punishment of crime, as
well as for the establishment of innocence when ex-
posed to unjust accusation, had previously, impressed
me strongly with a conviction of this defeat ; and I
bad endeavoured, both by published writings, and
in the discharge of my judicial duties as a Recorder,
to arouse public attention to it. The defect of
which I speak is the want of a supreme judicial tri-
13unal wherein the issue of criminal trials may .be
=e-considered in the event of fresh evidence coming
to light after the verdict, or of the verdict itself not
according with the evidence, or of circumstances
generally transpiring which may render desirable a
review of the proceedings. At the period of which
I speak—namely, in 1856—three foreigners were
tried and condemned for murder at Winchester.
The youngest. of these, a youth' of 18, solemnly pro-
tested his innocence ; his was not the hand which
dealt the fatal blow, and one of the elder prisoners
protested from the first that he himself was guilty,
but that his younger companion had acted entirely
under his compulsion, on fear of personal violence to
himself. This doubtless in a felonious act would be
no justification whatever generally ; but neverthe-
less it and be taken as a mitigating circumstance, as
the French law calls it, " une circonstence attenu-
ante," in awarding punishment. The authorities
of the gaol, and especially the humane chaplain, ad-
dressed themselves to the Holm-office with a view of
obtaining a reprieve for the young Man ; the day of
execution was rapidly approaching ; the Assizes on
the Western Circuit had been somewhat protracted.
The month of August had arrived, and the Secre-
tary of State was not in London. A formal reply '
was received from the Under Secretary, and the
' law was left to take its course. I contended in the
letter I addressed to you on that occasion that had
there been a Supreme Court of Criminal Appeal,
this young man's life would most probably have
been spared. I mentioned at the same time
another case which had occurred not long pre-
viously, where a poor woman, exasperated by a
long course of brutal usage, of personal violence,
and of threats, took at last a deadly revenge upon
her husband, and expiated her guilt upon the
scaffold.
The case of Dr. Smethurst, unfortunate as it
may be in giving a shock to the administration of
justice under the present imperfection of its fabric,
is most fortunate, as more powerfully than ten
thousand -arguments, it must certainly lead at the
first possible opportunity to an alteration in the
law. Far be it from me to impign the wisdom,
sagacity, upright intentions, and sense of justice
which animate the able men who preside over the
Home-office, both in the capacity of Secretary or
Under-Secretaries. What I maintain is, that no
single individual, however eminent his talents or ex-
alted his position, ought,to be charged with the
gravest of all responsibilities, namely, that of
deciding on the life of a fellow-creature. What
are to be the data of such decision ? The
notes of the judge who tried the cause, and
who naturally must be biassed in favour of his
own opinion, or the brief of the counsel for the
prosecution, who can seldom be expected to enter-
' tain the most favourable views towards a prisoner.
No wonder that with such materials for a calm re-
consideration of the q.uestion the Secretary of
State, even if he were a jurist, which is not always
the case, should be distracted and torn asunder
with difficulties and doubts. I have seen it Bug-
, gested that such a tribunal as I have advocated
should belong equally to the accuser as to the 'ac-
cused. God forbid that that sacred principle of
our law, " Nemo bis vexari debet pro eadem
musk" should ever be infringed:, Better that a hun-
dred guilty persons escape than that the liberties
of men should thus be jeopardised, and that perse-
cution should-stand in the place of prosecution. But,
exclaim the opponents of criminal appeal in cases
of conviction, the prerogative of the Crown will be
interfered with. Never in the annals of our history
has the prerogative of mercy rested in better or
purer hands than it does now; but there is a regal
qualification, higher than even that of mercy—
namely, justice to which the meanest and most
humble of her Majesty's subjects has a right. If a
prisoner has been unjustly condemned, to offer him
a pardon can never cancel that injustice, for a par-
don is of grace ; his claim is of justice, as a debt.
This difficulty will, doubtless, be sorely felt at the
present time; for, if Miss Bankes died a natural
death, the " corpus delicti," as we lawyers term it,
fails, and Dr. Smethurst is entitled, as of right, to
his discharge. But, it will be urged that, if a supreme
tribunal be erected, the authority of juries will be
impaired, and they will not be so careful in future to
arrive at a correct conclusion when they know that
their decision is not always final and conclusive.
The common feeling and experience of human nature
rather point to the other side. Never are men so
anxious to discharge their duty faithfully to society
and to their fellow-men as when their actions and
conduct are directly responsible to others, and when
they are sensible that the judgment they have passed
is liable to be reversed. On the other hand, there
would be this security in the knowledge of the pos-
sibility of ulterior discussion, that in very grave
offences submitted to them, they would not be so
disposed to go out of their way in favour of acquit-
tal, almost against their conscience, as they would
be if they felt that their decision could not be re-
voked. The last objection I shall mention to a
court of criminal appeal is, that it would give the
rich man an undue advantage over the poor man.
This objection might prevail in countries where
venality and corruption exist ; but in our own land,
of which one of the highest boasts is its unsullied
and purely-intentioned administration of justice, the
voice of public opinion would denounce and over-
whelm any attempt, if such should be made, to
blacken and defile its source ; while a generous
hand would always be held out to extricate the
needy and friendless, if innocent, from the conse-
quences of a wrongful conviction.
It only remains to consider what form of tribunal
would best answer the required purpose ; and here
we cannot do better than resort to that wonderful
monument of genius and wisdom, the Code Napo-
leon,, for our model. The Cour de Cassation in
France presents in its form of structure the simplest
and most admirable institution of ultimate appeal,
implying by its name that it breaks to pieces and
annuls thejudgment of the inferior court. Unlike the
appellatejurisdiction proposed by Mr. M'Mahon in
the session of Parliament just terminated, whereby
a strained analogy was sought to be enforced be-
tween criminal and civil causes, and an appeal was
given to the ordinary and permanent judicature of
the Court of Queen's Bench, the Cour de Cassation
- is composed of two distinct courts, an inner and an
outer, the judges of which sit by rotation, except the
President, giving their assistance at fixed intervals
in each court. The Cour de Cassation in neither
of its departments investigates facts, but its
functions are to see that the law has been properly
admininistered the court below, and that the facts
as already elicited justify the sentence. If the
outer or preliminary tribunal (the French name
I do not recollect at this moment), composed
as it is of several judges, considers that
sufficient 'grounds have been established for
re-opening the judgment, the case is remit-
ted to the inner and superior court, where it is
dealt with in the last instance. In almost all cases
where the judgment is not confirmed, a new trial is
ordered to take place, but never before the same
tribunal where it first occurred. In France the
Institution of the Cour de Cassation is one attended
with considerable expense. The judges composing
it receive salaries large for France, but not as com-
pared with those paid to'the judges of the English
superior courts.
In this country the establishment of a court of
criminal appeal need not be attended with any ex-
- Penae at all. The fifteen judges might sit in rota-
tion, in such a double court as the Cour de Cassation
-without any increase of their salaries, the Lord Chief
Justice °f England being perpetual president of this
high tribunals-0:d without any great apprehension
that their labours would be much increased. The
present sitting of the Court of Appeal in matters of
law justify no such apprehension. But, even if we
did not constitute a court after .the model of the
French Cour de Cessation, the powers
of the ex-
isting Court of Appeal might be extended and en-
larged, so as to embrace the functions now defec-
tively devolving upon the Home-office. Whatever
be• the court established, not the least of its duties
wcmld be to award public compensation to persons
ors )ngfully convicted, and whose innocence should
be ; ifterwards satisfactorily made out.
Closely alongside the question df a court of cri-
mirial appeal lies that of a public prosecutor—a re -
qui rentent more clearly manifested than ever by the
def ectivre and doubtful character of the medical evi-
dence or the late trial. Although the demand for
such an official has been latterly loud and general,
and frequent failure of justice ensues from
.. the.
prey ant system, yet session after session is allowed
to pa ss by, and not one of the law officers of the
crow n, much less private members thirsting for dis-
tinct ion, either has leisure or thinks it worth
thhie
s
while to deserve the thanks of the country by
introd'uction of a measure for the appointment of a
public prosecutor. While energy and oratory are
scrnanile-%-ed on a turnpike act or a gas bill, improve-
, molts wiLi.,l concern the lives and liberties of our
fell ow -subSocts, lying athwart the path of our sena-
, -tors, are lucked aside and neglected.
Th sire is the department of justice, voted at least
tic-0 ; rears ago unanimously by the House of Com-
mons, still ae subject of discussion, perhaps result-

-
ing fronksome departmental jealonay_amongiitate
functionaries, at a period when the country re-
quires vigorous action. Opposition there is none,
except it be on the score of expense ; but as regards
that head, even if the nation begrudged, which it
does not, some few thousands a year for the amend-
ment and perfecting of its jurisprudence, an ample
sum for its maintenance and support tnightjv
rescued from the superfluities of soap and stationery
in the public offices. Now that Europe is at peace,
and there is something pretty like unanimity on the
subject of electoral reform, we expect our states-
men to employ their' abilities and their leisure in
reducing to practice those professions for the
national welfare which have been their passport to
power, but to which unless th faithfully act up,
they will very soon forfeit the ey
national confidence.
—I am, &c„ J. E. EARDLEY WILMOT.
Sept. 6.
-

terms of their Convention. Italy herself seems to
relieve them, and to invite anew arrangement, more
suitable to the comparative dignity of Cmsars and
municipalities. If anything is to be done, it must
be done immediately. France and Austria will
soon be too good friends to quarrel about Italy, and
too wise to have anything to quarrel about.

BRITISH ( OLUMBIA.

(From the Correspondent of the Times.)
VICTORIA, VANCOUVER.S ISLAND,
• July 25.
For a period of two or three weeks people here
were in a state of despondency which threatened a
" panic." The quantity of gold I,rought down from
Fraser River had lessened. Miners were leaving
for San Francisco. Trade was dull, and many per-
sons, taking their impressions from the San Fran-
cisco newspapers, rather than from what was going
on around them, began to fancy that tke mines had
really "caved in ;" that Fraser River had turned
out to be a " humbug," and that a general exodus
would leave both colonies to their normal savage
condition, unless "something should turn up."
All this time Victoria has been steadily improv-
ing and increasing ' • and, fortunately, " something
has turned up" to allay the fears of the croakers.
We now hear, on rßliable testimony, corroborated
by the arrival of gold by every steamer from British
Columbia, that the miners are as prosperous as they
ever were ; that new goldfields are being found ;
that the miners who went to San Francisco (whither
it is very natural they should go for a spree, or to
see their friends) are coming back again to pursue
their labours in our mines ; and, as a consequence,
that trade has revived. Now all is hope, trust, and
good spirits.
Far up in the interior gold has lately been dis-
covered on Quesnats (corrupted into Canal) River,
a tributary of the Fraser, into which it falls about
30 miles north-west of Fort Alexander, one of the
Hudson's Bay Company's stations on the Southern
confines of New Caledonia district. This point is
about 500 miles distant from Victoria, and is the
extreme one to which the miners have penetrated.
The accounts of the yield of this new scene of
labour are exorbitant,-30 dols. a-day to the man,
while some reach 200 dols. A Government official
just down from the neighbourhood reports:—
"Several miners told me that the 'dirt' averaged 50 to
60 cents. to the pan. Mr. A. S. Bates showed me a mass
of retorted gold worth 67 doLq.,;which was the result of one
day's work by two men who considered themselves unlucky.
The most successful party was three Germans who had
taken out 6,000 dols. in less than 40 days."
For some time the discoverers kept the discovery
quiet, and the miners on the Quesnats were few.
Their success becoming known caused " a rush,"
and now there are several hundreds on the river.
The next most important mining discovery lately
made on the Fraser is that the "flats" and " banks'
which extend from the margin of the river inland
are auriferous, and afford good fields for " hydraulic
operations"—a great " interest" in the Californian
mines. The gravel is operated on by water brought
to bear on the face of a bank by a long hose and
nozzle, which disintegrates the mass and rushes it
into long sluices strewn with quicksilver, where the
gold is caught. " The hydraulic" is a great labour-
saving machine, and for that reason very popular
with the miners. The flats, banks, and benches
which supply gold-bearing soil which can be thus
operated on are extensive and looked upon as a
certain indication that the auriferous area is vast
to a degree hitherto unexpected..
Another proof of the great extent of the gold-
field is afforded by the discovery of gold on Bella
Coola River, on the coast of British Columbia, some
330 miles north of Fraser River. This discovery
has been made by a young English gentleman who
had an appointment in the Governor's office here,
and who took the' gold fever" in May last with a
virulence which ended in his starting in a canoe on
an exploring expedition. At last accounts he was
preparing to penetrate into the interior as far as
Chilcoaten, an Indian country, whose people are
friendly to the Hudson's Bay Company, and where
gold is reported to exist.
Then there is Queen Charlotte's Island, some few
hundred miles to the northward of this, which has
become the rage with gold hunters. An exploring
party started for the island some three weeks back,
and now 100 experienced miners have got up an
expedition to settle and mine thereon. The island
is known to be auriferous. The Governor favours
the expedition ; in fact, he can't help hiniself, for
the miners will go, favour or frown as he may, and
in this exigency a man of war goes up to show the
natives that the miners are under Government pro-
tection.
The good news from the Fraser River mines is
corroborated by Mr. Begbie, the judge of British
Columbia, who has just returned from his circuit in
the interior.
It is very gratifying to be able to state that Sir
Edward B. Lytton has agreed to advance by way of
loan £7,000 for the building of two light houses in
the Straits of De Fuca, near Victoria, the erection
of which will be forthwith proceeded with. The
Governor has asked the House of Assembly to pro-
vide means for maintaining the lighthouses when
erected, but the House has not yet had time to act
in the matter.
The want of lights was much felt, and a great
impediment to the navigation of the Straits and to
the entering the harbour of Esquimalt, which is
low and unseen at a short distance seaward. Sir
Edward could not have made a more useful appro-
priation.
Much discontent is manifested both here and in
British Columbia at the arrangement under which
the public lands of both colonies are disposed of,
and petitions have been presented and representa-
tions made to the Governer with the view of in-
ducing a change of system.
As an illustration of the system in Vancouver's
Island, I may state that a man who applies for
farming land, and pays one-fourth part of the price
down in cash—say, in May, June, or July, 1858,
has the opportunity of selecting his farm on the
3d of August, 1859 !
This system, such as it is, is fairly and honestly
worked, and answered very well when the only
purchasers of land were the officers and servants of
the Hudson's Bay Company, who were in no hurry
to have the survey completed; and who. while
they were waiting its completion, were enjoying
their salaries and perquisites snugly in their own
homes. A year or 15 months' delay did not mat-
ter to them. But just fancy the case of an immi-
grant—a stranger is a strange land, who had come
out to settle himself quickly on a farm—perhaps
with a wife and any number of children, having to
wait 12 or 15 months after the period at which lie
had paid his first instalment before he could get
possession.
A representation has gone home on the subject,
and of course the system will, ex necessitate, be
changed, so I need not expend any indignation
upon a matter for which, as usual, " no one is to
blame." ' •
In British Columbia the plan adopted of waiting
for the surveys before any land can be held for rais-
ing crops works:very badly also.
The Royal Engineers, of whom the late Colonial
Secretary expected so much, have as yet made no
surveys nor done much work of any kind, although I
am informed the men and their officers arc willing
to make themselves useful. A few of them and some
Marines are at present at work in improving the
road of the Lillooett Valley, near Douglas—an ob-
ject of great utility if attained, as this is the best
route into the interior.
We are anxiously hoping that' the Government
will soon make some postal arrangement for these
two colonies. At present the arrival of our mails
is a matter of uncertainty. For instance, the Eng-
lish steamer Forwood, which plies regularly between
Victoria and San Francisco, arrived here two days
ago without the English mail, although it was lying
in the Post-office at San Francisco. The postmaster
refused to deliver it to the captain of the Forwood
because" he had promised it to one of the Pacific
Mail Company's boats, to sail several days later. It
has not yet arrived, and when it does we shall pro-
bably have but two hours to read our correspondence
and answer our letters, if we don't submit to lose a
post.
A statement of your Paris correspondent in the
Times of May 31, that some sailors had volun-
teered from merchant vessels at Marseilles for ser-
vice in her Majesty's navy, reminds me of a similar
incident, but on a larger scale, on this coast. The
other day 60 sailors left San Francisco by the
steamer for Panama, on their way to England for
the same patriotic object. They argued that the
bounty being £lO, was equal to 50 dols., which was-
the fare to New York ; once there, they would
work their Eassages for England, and be in time
for " the war."
The men of her Majesty's ships in port at this
place are t lso most anxious to get home " to be in
time for whatever may happen." Depend upon it
the principles of the peace party are not popular
with the non-electors.
Her Majesty's ships Pylades, Tribune, and Satel-
lite are in port. The Plumper is surveying on the
northern coast of Vancouver's Island. It is reported
that the Admiral is on his way up from the south,
and that as his own ship_ is going home to be
changed into a screw, he will hoit, his flag on hoard
the Tribune on his arrival.
Everything is quiet and peaceful both here and in
British Columbia—no rioting and very little crime
among the miners, who, doing well, are on the
whole tolerably well contented with their condition,
The weather here is perfection—warm, with an
occasional light sea breeze and a cloudless sky,
during the day, and pleasantly cool at night. For
this last month there has not been a moment's

interruption of this most agreeable and salubrious
state of the atmosphere. -
Owing to the lateness of the spring, the crops are
a little backward, but promise well. Now that the
amenity of the climate is becoming known, and the
productiveness of the soil of this island is being
ascertained by the luxuriance of the growing crops
and the gorgeousness of the vegetation, farming
lands are coming into great demand. This demand
may, likely enough, run into a mania for a timel
for, as a general rule, all who come here like the
place and desire to remain permanently. Even such
poor fellows as came out expecting Government ap-
pointments, and who are disappointed in their
expectations, like everything except their disap--
pointment. It may be well to state that this is an
expensive place, in which the earnings of educated
men not in actual trade can hardly support them,
and that Government appointments are not to be
had. The other day the Governor ordered the dis-
missal of all the civil staff in British Columbia for
reasons of economy. This measure has thrown a
good many out of employment ; but the grounds of
their dismisial were imperative to enable the colony
to support its own civil expenses without aid from
England. Henceforward the military staff will
perform the duties of the displaced officials. The
Customs department was not interfered with, but
all the others were weeded. Of course the measure
renders the Governor, for the time, unpopular with
a class ; but this does not much disturb his equani-
mity. •
, It will do no harm to mention that the currency
of the two colonies is carried on in American coin.
The pound sterling passes for 5 dols., which gives
it an advantage of about Bd. over the legal value
assigned to it by the United States Customs Law,
so that immigrants will do well to brim.. their
English coin along with them, instead of changing
it before they leave, which will save them trouble,
and result to their advantage in the exchange when
ey get here.