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common law, that no man shall be put into jeopardy of his life oftener than once upon the same charge. The authority of the common law we certainly feel no great disposition to question; but it may be fair to ask, of what common law? If by common law be here meant what is usually opposed to statute law,--orihat great body of consuetudinary rules which fornięd our jurisprudence, before parliaments are known to have sate, or at least to have sate to any purpose,—we ask whether it was not another great and sacred principle of the same law, that all saits, civil and criminal, should be decided by sticks and swords ?-And again, that no accused person should be acquitted, who on being thrown into a pond, did not instantly sink ?-And again, that a person was innocent of every possible crime, if, on being dared to it, he could swallow a crum of bread without being choked ?-But, if by the common law is meant the whole of our municipal code as it now stands, then we would beg leave to observe that this very code, while it sanctions the inadmissibility of second criminal trials as a rule, yet allows their lawfulness as an exception; and, if we are to argue, not from reason, but on the bare vaked ground of authority, the allowance in the one case seems as good as the sauction in the other.
Besides this reference to the authority of the common law, the writer has another objection to second criminal trials; for he considers them as violating the trial by jury. He very ingeniously argues, that the trial by jury in some sense succeeded to the trial by ordeal, and was intended as an appeal, not merely to the judgment of man, but to that of the Deity; and, on this ground, he accounts for the use of the response, ordinarily put into the mouths of persons arraigned, who, on being asked how they will be tried, are directed to reply,' by God and their country. The derivation has great probability ; for it seems very natural to suppose that our ancestors adapted both the trial by battle, and that by jury, to their favourite notion of an ordeal. But when the author proceeds to infer that it would therefore be impious to renew a criminal trial, because it would be to ask the divine judgment a second time, and when, on this account, he would retort the charge of impiety on the opponents of the trial by battle, he is, of course, only indulging in a sarcasm ad hominem. For surely such a sentiment, gravely held, would be unworthy of the good sense and acuteness which the work elsewhere exhibits.
In proceeding to deliver our own sentiments on the alternative question of abolishing appeals of murder, or so modifying them as to convert them into new trials, the first remark that occurs is, that the abolition of the wager of battle would alone reduce the appeal nearly to what is suggested. By our present practice, the defendant in an appeal of murder
may wage battle, unless the presumption against him is violent. That is, he is not obliged to put himself on his trial before a jury, unless the judges of the King's Bench are of opinion that the primâ facie evidence of his guilt is vehemently strong. Now abolish the absurd mummery of the wager of battle, leaving to the defendant in favorem vitæ his advantage of exemption from trial, unless the judges are of the opinion just mentioned as to his guilt; and enact further, that no appeal shall lie, unless (as in Thornton's case) the party has previously been acquitted of the same charge on an indictment; and by these means the appeal will become in effect a new trial granted by the court on the ground that the prisoner was improperly acquitted. We do not mean to say that a few more changes would not be necessary; as, for example, the granting the power of appeal to all other persons as well as to the heir; the exemption of the appellant from the penalty of imprisonment in case of an acquittal; the conferring on the crown the power of pardon in case of a conviction, which power the crown now does not possess in this proceeding, appeals being considered as private suits; together with other modifications of less moment. All we mean to say is, that the appeal might be new-modelled as required, with a very considerable retention of its present forms and modes of procedure,
If such a change were effected, it cannot be denied that some of the chief objections to this anomaly in our criminal jurisprudence would be removed. The appeal of murder would no longer bewhat it altogether was originally, and what it still is liable to beindividual revenge borrowing the arm of the law. It would no longer subject those who might have honourably resisted the attack of public prosecution to a fresh struggle for life against the attempts of private malice. It would, to be sure, be a new trial after an acquittal; but a new trial granted only in extreme cases, and instituted by the highest judicial wisdom.
In civil cases, it is well known that our judges grant new trials almost daily. If a verdict has been given against evidence, if some piece of evidence material to the issue was improperly admitted or excluded,-if excessive damages have been given,-if the judge who tried the cause misdirected the jury, and they erred in consequence of such misdirection,--the case is again sent to be examined and decided on by the country. It comes to a fresh jury, who, stimulated by the very circumstance that a mistake is supposed to have been before committed, which it belongs to them to correct, may be supposed to hear with peculiar attention, and to determine with peculiar care. Nor does any thinking person doubt that this revising power in the superior courts forms a most salutary and important part of our civil jurisprudence, VOL. XVIII. NO. XXXV.
In a certain degree, the same revising power already exists in the practice of our criminal as well as our nisi-prius law. Where any just exception lies to an indictment, judgment in technical language) is arrested; in which case, the party is liable to a new trial, though not sent to it as a matter of course. In the lighter criminal cases, if a verdict of guilty is given in direct opposition to the evidence, a new trial may be granted. In cases of a graver nature, if the same thing happens, or if the verdict has been rightly given but circumstances of mitigation appear, the crown, the fountain of justice, may interpose a pardon. But let it be observed that, in all these cases, the reversal of judgment operates only on a prisoner improperly or harshly convicted. For the opposite case of an improper acquittal, (except sometimes in actions on penal statutes, or where, under the form of a criminal proceeding, a civil right is in fact tried,) our legal practice affords no remedy wbatsoever.
The question therefore under consideration is, why there should be no remedy for this evil, as well as for the former Juries may acquit, as well as condemn wrongfully; and why should we not have the means of repairing their errors in the one case as well as in the other? But, if a revising power in such cases is to be exercised at all, it can only be by giving the judges a jurisdiction to send the party, when they see fit, to be tried before another jury. For it never would be borne, that, after a person accused had been acquitted by his peers, any other authority than that of his peers should reverse bis acquittal and pronounce him guilty. Therefore the proposed question comes to this, whether the court shall have power to grant new trials in cases of an acquittal for murder? · Before we enter on this question, we cannot help saying that it would not be easy to give the court this power in cases of acquittal, without giving them a like power in cases of conviction. If we are to increase the risk of detection to the guilty, there is no reason why we should not increase the chances of escape to the innocent. It is indeed true that persons are very seldom convicted of a heavy offence without good grounds; for, if there is any doubt about the charge, juries lean to the side of mercy. And, even where an improper couviction takes place, the sentence is not executed; for the friends of the party represent the case to the privy council, and a pardon is gained. Still, if it were formally enacted that an acquitted prisoner might be sent back to undergo a new trial for his life, the public would hardly be satisfied unless the act also said that a condemned prisoner might, in certain cases, demand a new trial for his deliverance. And, though it might not be very reasonable in the public to expect this, yet very plausible arguments might be used for asking it;-arguments which perhaps it would
not be wise to resist, considering how important it is to have public opinion on the side of the administration of justice.
Now if we are to have new trials on convictions as well as on acquittals, it is very plain that convicted persons ought not to undergo the sentence of the law, until a certain time had been allowed them to move for a new trial. If it be asked how much time, the answer is, exactly as much as it is thought proper to allow for the bringing an uppeal against persons acquitted. The same length of time must be given in each case; and the convict must in the meanwhile be respited.
The inconveniencies of such a system it requires no great sagacity to perceive. The trouble,—the delay, the expense,-the temporary indecision,—are all very plain, and very undesirable. But none of these evils, nor all of them together, form a decisive objection to the plan, if it can be shewn to answer the objects of justice in the end. It is very true that promptitude is of great importance in judicial proceedings. But promptitude is a relative word. It only means that we are to decide as fast as we can decide correctly; otherwise we nerely sacrifice the end to the means. The great object is to be right at last. In the small matters, indeed, that come before the courts day by day, dispatch is generally of such moment to the suitors, that it may be better to decide quickly, even at the peril of occasionally making mistakes. But it is not so in those awful exigencies which are to dispose of the life and character of a human being. Here, other virtues are required than those of alacrity and expedition. Here, we must be cautious, deliberate, and circumspect; and perhaps should rather feel afraid of doing wrong than eager to do right.
But it may perhaps be said that it would be hard to oblige those who have once endured the torment of a capital trial, to undergo that cruel ordeal a second time on the same charge. Undoubtedly this would be hard; but the first question is, whether it is necessary, It should be remembered that if the plan were properly carried into effect, the hardship complained of would never be inflicted except where there was a very strong presumption of guilt. The power of granting new trials would rest, not with private individuals, but with the judges, acting on the maturest consideration. It would therefore never be exercised, except in very strong cases; and surely it is better that persons covered with appearances of guilt should be exposed to the hazard of a trial for life twice, than that the lives of the rest of the community should be exposed to the danger of assassination. . In short, objections drawn from public and private convenience can never be considered as conclusive against a system which is intended for the furtherance of public justice. But, on the other hand, if the system fails of effecting that end--if public justice is
not furthered after all,—then great weight may be due to these objections. And, in fact, we think the utility of this plan very doubtful, and that it might possibly be not only useless but injurious.
In settling the merits of such a plan, the points to be considered are, whether it would make innocence more sure of acquittal and guilt of punishment, than they now are? As to the first of these, we believe that innocence is very sure of acquittal already. Our juries are not apt to be sanguinary:--the civilized part of mankind are never apt to be sanguinary, unless they are under some strong personal excitement. The law holds (says Blackstone) that it is better that ten guilty persons escape than that one innocent suffer.' This maxim, which we believe to be as wise as it is humane, (for it is founded on that regard for 'individual security which lies at the root of all social order,) has long been completely established in the practice of our juries. Fatal exceptions, it must be acknowledged, have sometimes occurred; there are instances in which the innocent have suffered the last penalty of the law. But this is owing to the imperfection of human nature, from the influence of which even the best judicial system cannot be wholly free. And besides, the science of criminal law, like other sciences, is progressive. Such distressing examples as those alluded to are not likely to happen again; for we have been instructed by the effect of our mistakes. This remark may be illustrated by a case which is probably familiar to many of our readers. I would never (says Sir Matthew Hale) convict any person of murder or manslaughter, unless the fact were proved to be done, or at least the body found dead, for the sake of two cases.'-The two cases to which he refers are very curious, especially one of them. A young girl, who lived with her uncle, (who was also her heir at law,) was overheard to say, “Good uncle, do not kill me! Very soon afterwards, the child disappeared; and the uncle, being committed on suspicion of having murdered her, was admonished by the judges of assize to produce her against the next assizes. When the next assizes came, the uncle produced a child whom he declared to be his niece, and who certainly resembled her extremely; but who was proved by witnesses well acquainted with the person of the real niece to be not the same. On these presumptions, the uncle was found guilty, condemned, 'and executed. But, some years after, the real niece, who had been induced to run away by the ill treatment of her uncle, and had been received and brought up in a distant part of the country by a benevolent stranger, appeared, and, being now of. age, laid claim to her inheritance. Her identity was established on the clearest evidence, and her claim allowed.* This is a shocking story indeed; but it is very clear that such an occurrence could not now take place. In the present state of the country, a * 2 Hale's P. C. 290,