to be known, which cannot be made intelligible to minds of ordinary capacity, is beyond our comprehension. Instances, indeed, occur in the evidence before the Committee, intended to be illustrations of the inability of the unaided legal mind to comprehend mercantile transactions, which we confess, as they stand, appear to us to fall far short of any such result. One instance is this: A merchant orders scales and beams of a manufacturer, the latter supplies cast-iron beams, which the former says ought to have been of wrought iron. In the opinion of the witness, it is impossible for the County Court judge to know whether the trade generally uses cast-iron or wrought-iron beams. We should have thought nothing could have been easier than to show the custom of the trade and its knowledge by the manufacturer if it existed. "With a merchant on the tribunal," continues the witness, "he would say at once, cast-iron beams is nonsense; it will not do.'"* That is, that (though grammatically faulty), he would take judicial notice of a custom without requiring evidence, and this, in some instances, may be an advantage, but, as a general rule, leaves a case at the mercy of the prejudices of the judge, and leaves in uncertainty what shall amount to a trade custom and what not. Another disputed case given is that of an order on a manufacturer for saws, with a stipulation that the order was to be executed "at his best discount." The manufacturer invoiced the saws at 80, the merchant contended that 85 per cent. ought to have been taken off. Judge and counsel expressed regret that there should be so much dispute over so small a matter as 5 per cent. But mercantile men, it seems, were astonished, for they saw at once that it was a question, not of 5 but of 25 per cent. Well, if so, surely evidence could have been brought to show to an average mind that what appears in the ordinary construction of language as 5, by the ordinary custom of trade is expanded into 25.

In such cases the cost of procuring evidence is avoided, it is true, by the judicial recognition of a custom without proof, but the risk is not avoided of creating uncertainty, and doing injury to persons outside a trade, by imputing to them knowledge of a custom which may only be a recent usage. The practice of the French tribunals as described by the French Consul at Liverpool is instructive in this particular. He says (Q. 736), They (the judges) always go by the Code de Commerce, and they add to it their own practice, because every day brings new usages in commerce which are admitted in these causes." s." This mode of administering justice would be a revolution indeed from the present practice of our courts, and yet such a course seems inevitable if merchants are to sit upon them.

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* Question, 1263.

To import into a contract the general and unvarying incidents of uniform usage is of every-day occurrence in our courts; but to establish as law the new usages which every day brings is measuring the law merchant by the merchant's foot, and introducing more confusion where light and simplicity are wanted. Diminution of cost, speedy decisions, tribunals always ready to administer justice, are objects to attain which every effort is praiseworthy, but they will be dearly purchased at the risk of upsetting well-established legal principles, and of still further obstructing a scientific arrangement of our law; and it is this risk which we believe must be run if the proposals of the Committee with regard to these tribunals of commerce are carried out.

There is, however, another serious objection to the proposals of the Committee. They recommend that the County Court judge of the district should be the president of the new court; that so far as law is to guide the decisions of these tribunals, it is to be furnished by the County Court judge. Now, it must be remembered that the mercantile tribunal is intended to be the court of first instance, exclusively for all commercial Setting aside the possibility of the additional work pressing too much in point of quantity for the existing County Courts, and thus breaking down a system which has hitherto worked well and given general satisfaction, it is intended to relegate to an inferior tribunal the decision of questions which for intricacy and general importance are conspicuous among all questions brought into Westminster Hall.

It cannot be denied that the calibre of County Court judges is inferior to that of the judges of our present superior courts; and if the former are capable of dealing satisfactorily with legal questions of the highest moment, it must be admitted that the position of the latter is a mistake, and the expense of supporting them may well be avoided in this economical age.

But this is a conclusion to which not even dissatisfied mercantile suitors have yet arrived; in truth, the mistake is in the proposal which ignores the principles on which the County Courts were established, and in accordance with which their jurisdiction has of late years been extended. On these principles the jurisdiction of the County Court, though exclusive, is limited in amount, so that questions of small value, and, therefore, presumably of small importance, are alone decided there; but if you make this jurisdiction compulsory and unlimited, you must either place over the County Courts men selected from a different grade, or you condemn the extravagant constitution of our superior courts.

In disagreeing with the proposals of the Committee on Tribunals of Commerce, we are not to be understood as saying that the dissatisfaction said to be existing in the mercantile

community is a fiction, or that, if existing, there is no good ground for its existence. We believe that cost and delay are very serious evils to all suitors, and to mercantile suitors more especially, perhaps; and if these evils were remedied, and a simple system of procedure adopted, we are strongly of opinion that we should hear very little as to the difficulty of bringing the question in dispute properly before the court, or of ignorance in the court as to the special customs of particular trades. These are evils which can be, and we hope will be, dealt with in the legislation which must follow on the labours of the Judicature Commission, and it will be well to await the effect of their removal, rather than risk present failure, by introducing into the constitution of our courts changes at variance with their history, and calculated, as we think, seriously to impede improvements in the frame and arrangement of our law.

IT

V. APPEAL IN CRIMINAL CASES.

T is the habit of Englishmen to boast of the excellence of the laws of this country, and of the amount of liberty, freedom, and security they enjoy under the beneficent influence of such laws. There is some reason for this, for there can be no doubt that in most respects we enjoy as much genuine liberty here, as in any other country under the sun. The boast, therefore, is not an idle one, nor without some foundation in fact, but it does by no means conclude that our laws are perfect, and that our liberty is incapable of being extended, and our rights rendered more thoroughly consonant with justice. Unfortunately for us our laws are an ungainly mass of enactments, and not a regular and comprehensive code. They are the growth of ages, and have not yet been digested. Hence our Statute books, though having undergone of late a winnowing and sifting, are still full of enactments which have no applicability in the present day, while many provisions which long ago should have been added thereto are still conspicuous by their absence. Of course there has been a great amount of useful law reform during the present reign; but there are still in our system of jurisprudence some glaring defects, which derogate much from the above boast, and are hardly compatible with true liberty, and there are yet numerous anomalies which disfigure the whole system. As a nation we are much too complacent, we forma notion that our laws are good, indeed, better than the laws of other countries, and become actually blind to the

blemishes which exist, and to a certain extent heedless as to reformation.

But of all the anomalies which exist in our laws there is none more unworthy of us, or more indefensible, than the difference which exists between our civil and our criminal law with regard to the right of appeal. It might reasonably be imagined that in a country like this, where so much is thought of the liberty of the subject, that every guarantee of a fair and thoroughly satisfactory and impartial trial would be accorded to the accused in all criminal cases, and possibly in a manner even more thorough than when the rights of things merely are in question. But, strange to say, it is not so. In civil cases the right of appeal is absolute, whereas in criminal cases there is virtually no right of appeal. It is therefore not to be surprised at that intelligent foreigners who study our institutions and our laws should have arrived at the conclusion that property is far more important and more precious in our sight than life and liberty. How this state of affairs came about is difficult to be understood, unless it is that our legislators have always been, as they are now, of the wealthy class, and the proprietors of land and other property, and who perhaps naturally thought that there was a greater necessity to protect their possessions than there was for securing the fair trial of criminals, who, as a rule, were not of their class. If the state of the law on the subject of appeal be not due to the cause we have here indicated, its continuance at any rate cannot be attributed to any other influence. And in this opinion we are not alone, for we have on our side the high authority of the present Lord Chief Baron of the Court of Exchequer, who once said in Parliament, that "he could not conceive that this omission to apply some remedy to this gross defect in the criminal law would so long have continued a just reproach to us, had it not been that the members of the Legislature were not of that class of persons which for the most part became liable to criminal prosecutions. Had their characters, their liberty, their life, been in proportion so often in jeopardy under the operation of the criminal law as the persons and lives of the classes below them in society, this most unjust incongruity would long since have disappeared from our criminal jurisprudence."

In all civil actions, even though the matter in dispute be not worth more than 5s., there is an unquestioned right of appeal, and there is no hindrance whatever to a most thorough and searching trial. So that if either party to an action at law, or a suit in Chancery, fancies he is aggrieved by the verdict of a jury, or the judgment of a court, he can re-open the case by appeal, and move from the lower tribunal to a higher, and step by step carry his case to the highest appellate

court in the land, until he have strong and substantial justice done him. If he shows grounds why his appeal should be allowed, he may have both the law and the facts taken into consideration, and the verdict set aside, or a new trial accorded to him. There is no difficulty in the way. Every facility is offered, and the only thing to be done is to show a sufficient reason for interfering with the decision of the court against which he appeals. What is a sufficient reason rests with the court before which the appeal is brought, subject, however, to a mass of authorities. Misdirection by the judge, improper admission of evidence, the rejection of admissible evidence, the fact of the verdict being against the evidence, the perjury of the witnesses, the discovery of fresh evidence after the trial, which evidence could not have been adduced by the appellant on the first trial; these, with many others, have been held sufficient reasons in civil cases either to set the verdict aside, or to grant a new trial. And no one will for a moment maintain they are not good and valid reasons.

In

In criminal cases, however, where something more valuable than property is at stake-where the liberty and may be the life of a being is in issue-this privilege is almost entirely denied. We say almost entirely, because in some cases there is a conditional right of appeal. A distinction is drawn in the criminal law between such cases as amount to felony, or high treason, and those which amount only to misdemeanour. treason and felony, by far the most momentous, as the question involved is often one of life or death to the accused, there is no right of appeal, unless we consider as such the reservation of points of law for the Court for the Consideration of Crown Cases Reserved; a concession which was tardily made by the 11 & 12 Vict. c. 78. This Act is by no means what it should be indeed, it falls far short; but of this later on.

With regard to misdemeanours, or the minor offences recognized by our criminal law, a right of appeal is allowed, and a new trial may be obtained under certain circumstances; that is, where the indictment has been either originally preferred in the Court of Queen's Bench, or has been removed thither by a writ of certiorari. Where a bill of indictment has been found and the trial has taken place at the Assizes or at Sessions, there are no means of obtaining a new trial except where there has been a mistrial, and a writ of error would be granted, and in the case of Rex v. The Inhabitants of Oxford (13 East, 411), the Court of Queen's Bench declined to allow a certiorari to be issued to remove an indictment and the proceedings thereon at the Assizes after verdict had been given, and before judgment had been pronounced, in order to found an application for a new trial upon the judge's notes of the evidence, on the ground that the verdict was against the evidence, and contrary