The Sun.
London, England, 1844-05-31 00:00:00

he went to the Judge's private residence is
the middle of the night. He was received
with all the courtesy which , distinguished the
Learned Judge, but his application was in vain. la
short, after five fruitless applications, when the man wee
about to suffer death, he (Mr. Fitzroy Kelly) and waited,
for the sixth time, on the Learned Judge, again
urged, or rather insisted, in terms which would cer-
tainly not have been justifiable under any other circura- •
stance, on the propriety of writing to the Lord Chief Jus-
tice of the Queen's Bench, or the Lord Chancellor, to
have their opinion as to whether there was anything in
the point which he urged. At length the judge coo'
sented, and he communicated with Lord Tenterden or
the Lord Chancellor. Both of these learned individuals
thought the point ought to be reserved—(Hear, hear)-7-
and eight hours before the period fixed for the roan
f°l,'
execution, he was respited. The point was, on the ;
lowing term, argued before eleven of the judges, among"
5,3
whom was the Learned Judge who tried the man, so
they were all unanimous that the point should have been
reserved, and that the indictment was not stistainablefe
.-:"
(Hear, hear.) Here was a case in which a man's li
had been saved by mere chance ; then let him not be
told that the judge would, on every occasion, reser!:
a point for argument, if there was anything io
however eminent or learned that judge might be.-;
(Hear, hear.) The man was now living, a
person, and a good member of society. Such was th
state of the law when there was a verdict of guilty te-
state
turned, and when, to every impartial bystander, tW:
reasons urged by the prisoner's counsel might
be
sufficient, still the, judge might be inexorable, and the
unfortunate accused, although innocent, as in Chalk
r
case, might suffer the punishment of death. Boweve`f
contrary the conviction might have been to the law, °
refortneoe
the land, yet still it rested upon the fiat of the kluge
whether the prisoner might not suffer punishment, or
even death itself.—(Hear, hear.) He asked if this state
of things should be allowed to continue in a conotri_
where the law was fairly administered ? But evene
where the Learned Judge was disposed to entertain to
objections urged, the remedy—if remedy it could he
called—was of a most unsatisfactory character. Wirt,
was the course when a man had been convicted o
crime, and when the objection of his counsel had bee,,
reserved by the judge for argument ? First, the jOdgei
entertaining the objection at all was a matter of "nu";
gence, and not a matter of right. So that the
,Prie°fie
might be indebted for his life, not to the law, but to tot
kind and merciful discretion of the judge. He dia., tit
speak in any manner disrespectfully of the bench, 1.1°:„$
was a well known fact in Westminster Hall, that se'',
of the judges would entertain objections which other_
would absolutely refuse—so that it was altogether
matter of accident, whether or no the prisoner, inn
hey
or guilty, should have the point which his counsel ott
honestly raised in his favour argued at all or not J'ielj
even, as he said before, where the point was easery
what was the proceeding ? The judges met togettit
not in open court, as on objections in a civil cases,
in some private room in Sergeant's Inn, or elsewber,:
and there counsel was heard, and heard, he- mos; that
after a most irregular manner. It often happene°
counsel for the Crown was not employed on these occasi°,,ot
and it sometimes occurred that the prisoner wee iee
able to fee counsel. Then in this private roll' to
judges met, and the point was' decided which we,' $
grant liberty or inflict death on a fellow-creature.
ip
civil case, on a like occasion, all the customary forniend,
our courts of judicature would be gone through,gthe
what was still more valuable, the arguments °' tea
counsel and the reasons of the judges would be salted
ao
before the public ; but in this case the judges gesleote
reasons at all, but it was made known in some liriast
or conventional manner to the prisoner's coanse' `.tee
the result of the judges' deliberations was_whetherkea
man's life was saved, or whether it was to b"_„,l,. of
away. Thus no addition could be made to thew c-re.
the common law of the realm—no decisions er!,idee
corded, or reasons published, which might be ,g"d eo
hereafter in like matters. In fact, at present weedut' the
digested body of criminal law at all ; and it renoir, ees
master mind of the individual who had now underjloe
it, to reduce our criminal law to an intelligent codie%, the
other course left open for a person convicted tioae'
criminal law was still more objectionable-- if
by application to the Secretary of State. do
there was a strong case made out for interferetLicel the
Secretary of State referred to the judge who trivc-
man, and in most cases the Secretary of State tee
guided by the opinion of the judge. Thus Tavel;
man's life depended on the will of a single in too
But suppose the Secretary of State went further, tof
demanded the evidence ...to consider ; hence the See ,r 1
of State was certainly placed in a position of a ~ efr
sponsibility. Well, then, he received a copy C wit elk
denee from the judge's notes—he must receive so rto
deuce as was laid before him—he had no P°,.oje 00
demand any other—it might be false, but be u_ti,fr
power to examine parties on oath—no means or PP root
ing himself whether the statements made were eocis
or incorrect ; and yet upon these slender gll'en.cref''
must come to a decision upon the life of a fellow
eod
ture.—(Hear, hear.) But in most cases the Seel:eats'
of State rested satisfied with the judge's bare rePr„°' cos'
time and acted accordingly.—(Hear, hear.) '-f"e oftes
sequence of these things was, that the guiltY,Lteti,
escaped, and the innocent often suffered.--
• evi
hear.) It was to provide a remedy for tbeseotee•
that he submitted the present measure to the m,bera
Where there was an erroneous verdict, or where ;s for
was a misdirection of the judge, or good gr°nnjer the
supposing either, he proposed by this Bill to rene ~a
mode of appeal the same in criminal as in civil caL,e vie
at least as nearly so as possible, taking their
difference into consideration. He proposed that in vt" or
criminal trial, whether at the Central Criminal Cour.oo,
before the going judge of assize, or at quarter se''llrbir
or any other criminal tribunal, to enable the prisel,v.„oso
his counsel, when there was a verdict of guilty, tell to
in any of the superior courts at Westminster Olde,
show cause why the verdict should not be set,„fer'
why there should not be a new trial, and why
diet not guilty should not have been returned, °firth°
the judgment should not be reversed ; and wheueve ,
court was satisfied, either upon affidavits osiloper
review of the evidence, or upon a belief that itrliesi•
evidence had been received upon the trial, or prilieri
Bence rejected, or where witnesses were brought °,lOOO
suddenly, and whose testimony the prisoner emil!u_eo, or
satisfactorily disproved if due notice had been WI jail
where the Learned Judge had misdirected thuof
in point of law, or in an erroneous summing to
facts, in all or any of these cases, se 1-efn
actions, he proposed that it be at the diseretioo_xet'
Court to granea new trial, or to order that the l'ets'iiti
guilty be set aside and a new verdict of not 5 ee
recorded. He also proposed that there sloni that, °
power to move for an arrest of judgment, end ight bet,
in civil cases, appeal to the House of Lords Too, bur
made, which he presumed would very seldom der proPe,
nevertheless, resort should be had to it uou,e'to caste
restrictions. The mode by whieh he proposeu sesol0„.
out this part of the measure was by giving as the 6e,;§
power, in all cases of conviction. to suspenu
It
tence until the appeal should have been
oli
decided.c $ di
absolutely necessary that the judge should bevsed `v
cretion cretion upon this subject. What he Pr°P° trio
that in all cases where a judge should had Priced
prisoner, and he had been found guilty, the Pce
should declare, before the sentence was P,„,0e1d.0,01
that it was his intention to appeal ; and be _"„nclineLol
power to the judge either to pronounce thee of the
sentence, to take effect on the termination ce tooe to,
if the conviction should be confirmed, or top °9lie P
sentence until the motion had been heard. ros of
posed to leave it to the judge either at once t°,i'stotiPee
tence, or to order the prisoner to remain in ~oise°,o,
to admit him to bail, either upon his own recee„eal ),
or upon good and sufficient bail, until the aPireject`ibi
tion had been decided, when, if this appeal i'verhetedit i$
the sentence should be pronounced. Und°`',(o tve'to
part of the measure was open to the objee'i.-
_twict,
would still be in. the power of the
effectsjudge ihe verytlo
perversely determined to carry into .oposs!rg
to refuse to respite the sentence. But it wshpl dr°, ol
to guard against mischief in all cases, and adge-00
thought the matter might safely be left to the Jo
the land; unless the thing were so clear thatane ro 4f
being could entertain a doubt about it, the gtition se'
in all capital cases, postpone the ex
were root
the sentence ; while, if the sentence the mold
cuted, except in cases of life and death, tjr
that could happen was that the prisoe ,of %alit
suffer imprisonment, or undergo the first stage; ae 0 els'
portation, until the ensuing term. But he be_ hoe, ioei
that, practically, if this measure passed into 0 frifo.ol,
tice would always be done. In cases where ;0s 'sal
objection was raised, the judge might here a',
tence; on the other hand, in cases 18',. fact, ono
serious doubt existed, either upon a matter °in aotritet
matter of law, or the verdict of the jury, °P°ooteueloo"
appeal being given it might be taken for gra, do
the judge would postpone or arrest the serttere °Wil, 0
he was at a loss to understand what reasoneh
could be made to this measure. It had bee% sr',
•an objection to the power of appeal under ste eisb„esh
stances, that it would give an advantage to to to art it
the poor ; that the rich would always be abl°,o . tbi'ther
and that the poor could not afford to d°,_ 0-ocleectolli
Would be in fact making one law for the tie', tiel
for the poor. He thought that objection "(Loh ecoul"
apply to the power of appeal in civil cases. 00106°0
tages were incidental to the nature of thioo eras
not be avoided. But, looking at the practiv,e,o. 001/1,
of the measure, he saw no reason for belie tn"ort e(11,0001
rich man would enjoy a privilege which wes not t°
possessed by the poor man. The judge,"„sraer ,)ile
to admit the rich man to bail. He inigutd -eidedt
remain in prison until the appeal were ,e beltro:
the poor man, if unable to obtain, bail, nilgrlis orvihic:
rated, at the discretion of the judge, uP°:O59
cognisances. Now, there was only one er t° 49,
he desired to give power to the
respite of his sentence at an earlierle`s,bod4,
it could be obtained in other upon cesc`i,
luded, of course, to indictments such 00,,
tal charges. • He proposed that in riserc:besl,'
if the judge before whom the Psoaechef(ll.l
tried refused to allow the appeal, the P2lO eon' eot
upon giving notice, have the right to u_ovision, $5lO
the recorder and two judges, and this Ptbe ernte, „s
extend to the judges of assize. It might i0105:1
re
objection to his measure that it would he.te the Porr!ei.
prison S.
the present state of the courts, and vveal erotig cart' 0
number of judges, to dispose of the 1311 were
_rejtil,
"which would take place if this measures
...re
He must take leave to say that if this nie.rthe 4 wt-0010,
adSej
made upon the Legislature, on the part of the .1_70.11
and expedient in itself, it was no answert
that it would create a necessity for some alio, ee, o'o
to ot sly', if #4,
ti(Hndatrh,uhseacra.u)se
Buta adhdeitdioidnalneoxt pie,*eAoubtecipocco,
necessity would be found to exist. Unit
appeal were to take place in every case,,id rotes ; o,o'ol
half the time of the court. But they "ivij cascria' 011
courts of law inundated with
then, should they anticipate such a res d redre 0 Pie
appeals in etot
ss eoc,
cases ? The Bill would be found to aner bto beeieoi°
cases of a criminal nature where irjustice a. ft
and in no case could it be seriously anus