THE NEW SYSTEM OF CRIMINAL PROCEDURE, PLEADING AND EVIDENCE IN INDICTABLE CASES, AS FOUNDED ON LORD CAMPBELL'S ACT, 14 & 15 VICT. c. 100, AND OTHER RECENT STATUTES; WITH NEW FORMS OF INDICTMENTS AND EVIDENCE. BY JOHN FREDERICK ARCHBOLD, ESQ. BARRISTER-AT-LAW. LONDON: SHAW AND SONS, FETTER LANE, Law Printers and Publishers. PREFACE. To Lord CAMPBELL the country are indebted for one of the greatest and best reforms in our Criminal Law, which has ever been made; and which is not only calculated to afford great and extraordinary facilities in the administration of criminal justice, but must, in its consequences, have a serious and most beneficial effect upon the state of crime in the country. Whoever is conversant with our old reports and our ancient text books on the Pleas of the Crown, must often have felt that both the Bench and the Bar were exercising all their ingenuity in devising little points and subtle distinctions, to enable the accused party to escape conviction. And it was so. But it was done from the purest, the most praiseworthy of motives :-by the Bar, from a sense of duty to their clients; by the Bench, from a feeling of humanity towards the accused. At a time when our criminal code was the most sanguinary of any in Europe, when every felony was punished with death, no wonder that the judges, in favorem vitæ, listened favourably to objections and nice distinctions, which, if now introduced for the first time, would not be entertained for a moment. And even when our criminal code by degrees was ameliorated, softened down, the practice, fortified by the authority of former decisions, decisions often by the whole of the judges or a great majority of them, continued and even increased, until a mass of little points was accumulated, which operated as a great and serious obstruction to the course of justice However pure and praiseworthy the motives from which this state of our criminal code originated, it was attended with most mischievous consequences. Juries looked astonished at finding a prisoner acquitted whom they considered to be clearly guilty, merely on account of some technical subtlety, which to their unlearned judgments must, no doubt, have appeared an absurdity. Prosecutors were discouraged from seeking to punish offenders, imagining that after expending their time and money in the endeavour, they would have the mortification of seeing the party acquitted from some cause entirely irrespective of the merits. And the offender himself, the hardened offender, acquitted on account of some "flaw in the indictment," as it was technically termed, exulted in his success, laughed at his judges, his jury, his prosecutor, and quitted the dock more determined than ever to continue his trade of crime; speculating on this state of the law for impunity, he grew more audacious in his exploits, until at last, after a course of crime for years, he was perhaps convicted, and punished. This was not a healthy or sound state of our criminal law; and the only wonder is, that the state of crime in the country was not very much worse than it is. The judges of themselves could effect nothing to remedy the evil; they could not emaneipate themselves from the authorities by which they were fettered, and which originated and perpetuated the mass of little subtleties by which the administration of the criminal law was impeded. Nothing but an Act of Parliament could effect it. And this Lord CAMPBELL framed, and introduced, and caused to be passed,-a task well worthy of the first Judge of the first Criminal Court in the country. By the statute 14 & 15 Vict. c. 100, the whole mass of little points and legal subtleties in indictable cases has been swept away, and hereafter criminal trials will be upon the merits, and the merits alone. Nor can or ought the accused to complain of this: if guilty, he has no right to be acquitted; if innocent, his best defence will be upon the merits. And in both cases, he will experience the same mild, patient, unimpassioned mode of trial, the same indulgence, the same facilities of bringing his ease before the jury in the best, the most advantageous manner, that has hitherto prevailed. And if there be a fair and reasonable doubt upon the merits, he will still find the jury inclined, and directed by the judge, to give him the benefit of the doubt. |