use of machinery already understood and which works well; and if such procedure were adopted in the main, the only question requiring some adjustment would be upon what materials the motion should be allowed to be made-a subject upon which I will say a few words presently.

When a prisoner is committed for trial in this country, some oneusually the person who has been robbed, outraged, or injured, or some one more or less personally interested in the matter-is 'bound over to prosecute.' That is to say, he gives a bond to the Queen to appear himself and to procure the attendance of the necessary witnesses, and he must in general see that counsel are instructed, the case sent up before the grand jury, and so forth. He is thus bound under a penalty to undertake and carry through a process which is almost sure to cost him more than the allowance made to him for his expenses. In other words, he is fined for the performance of the public duty of prosecuting a criminal. We will suppose a successful appeal either upon law or facts, but in either case in respect of a miscarriage for which the prosecutor is in no way responsible. Is he to be bound over afresh to prosecute, and to have the fire inflicted for the performance of his duty doubled? or will the tax-payers be content that the expenses of the second trial shall be really defrayed out of the public funds? And how is it to be secured that, upon the hearing of the appeal, the prosecution shall be represented and adequate care taken that justice shall not be defeated? No such difficulties arise in civil causes. Each party has pecuniary and personal interests at stake, which are quite sufficient to insure that both sides shall be properly represented; a lukewarm litigant is a rara avis, unless the probability is transparent that the decision will go against him, and if such a phenomenon be developed, he does no harm to any one but himself. It is wholly different in the case of a criminal prosecution. The paramount end to be achieved is the protection of the public interest and the punishment of a public wrong, and a prosecutor has, or ought to have, no personal or pecuniary interests to serve by prosecuting.

To whom should the right of moving for a new trial belong? To the prisoner, of course, but should it be conferred on the Crown also? I have already mentioned that where a case really criminal is removed by certiorari into the Queen's Bench Division of the High Court, the Crown and the defendant alike have the right of making such a motion in case of misdirection, but the defendant only on the ground of a wrong verdict on the facts. Is that analogy to be followed? Nobody doubts that of the persons put upon their trial the vast majority are really guilty, and I fancy most lawyers would agree that, upon the whole, the number of guilty persons who escape is much greater than that of innocent persons convicted; and on merely logical grounds there is no reason whatever why cases of

improper acquittal should not be subject to review, and, if necessary, to retrial, as well as cases of improper conviction. But here again it is of little use to argue against sentiment. There is a strong and pretty universal feeling, which may be roughly rendered by saying, that when a man has once been tried he has had enough of it, and that he ought not to be put in jeopardy again. There is in England a curious kind of tenderness, not exactly towards crime, but towards people whom crime, or the suspicion of crime, has deprived of their liberty and reduced to a position in which the odds are against them. It is not the less powerful because it is not always reasonable; and I doubt if English people in general are as yet prepared to give up the old maxim which their forefathers established in times when no man knew but that it might some day or other stand him in good stead, that no one should be twice put in peril for the same alleged offence. On the other hand, if the right be purely one-sided, one anomaly will be cured by creating another, and whilst innocence will have a protection, of which under our present system it sometimes stands in grievous need, our legislation will wear at least the aspect of giving to crime a chance which it denies to the public.

A question of much practical consequence and of some practical difficulty is, upon what materials the case which forms the subject of appeal shall be brought before the court. In civil cases the notes of the judge who tried the case are the primary, and until lately they were theoretically, at all events, in the superior courts, the only recognised and authoritative materials allowed. By the Judicature Act, the use of any other materials (such as shorthand notes) to which the court may think it safe in the particular instance to resort, is permitted to the Court of Appeal, and the consequence must be that in the Divisional Courts the same practice must sooner or later prevail in theory, as it has long done, more or less, in practice. No one who has had any experience in the matter can doubt the wisdom of the change. In the case of a criminal trial the reasons for a similar concession are far stronger. No civil cause is tried by an unpaid and untrained magistrate, and to take a note at once accurate, fair, and concise, requires a great deal of practice. Neither, as regards the prisoner at least, should there be any arbitrary limit of time within which a motion for a new trial should be possible. Before the Judicature Acts great injustice was occasionally done in civil causes by the fixed and narrow limits within which such motions must be made. Many a verdict has been procured by fraud or by improper practices which it was impossible to run to earth within the short space of time allowed for moving the court to review the trial. The time once elapsed (and at many periods of the year it did not extend beyond four days from the date of the trial) the mischief was irremediable. In criminal cases the liability to miscarriage from

causes such as those to which I have just alluded is probably upon the whole greater; and where conviction takes place, the chances of successful detection within a limited period tenfold weaker. There is a well-known case in which the innocence of a person convicted of a heinous offence was so clearly made out, that he received not only a free pardon from the Queen, but a solatium in the form of a grant from Parliament; but he had suffered many years of transportation before his innocence was established. Whether, if an appeal were allowed to the Crown, a similar latitude as to time should be granted is a very different question. Probably it would be felt that, unless fraud could be brought home to the person tried and acquitted himself, the sense of insecurity which would ensue if, after any considerable length of time the matter could be reopened, and the dread and misery that such a state of things would inflict upon many persons who had done nothing to deserve it, would far more than counterbalance any advantages which might occasionally result from the possibility of reopening the question decided by the acquittal.

I do not believe that a Court of Criminal Appeal would have a great deal to do. The doubtful cases are few as compared with the cases free from all doubt. The complicated and difficult cases are few as compared with the simple and easy cases. There is one essential difference between criminal and civil trials. In civil trials the matters for which each party is going to contend are pretty well known, but the details of the evidence are unknown; it is only by chance that the names even of the witnesses to be called by one party are known to the other, and the inquiry is often fraught with surprises. In criminal trials, with the rarest exceptions, there has always been a preliminary investigation before a magistrate, the depositions have been taken down, copies are procurable as of right, and every precaution is taken to guard against the introduction at the trial of unexpected evidence of any importance. On the one side, at all events, therefore, surprise is all but impossible; and the chances of a wrong verdict are pro tanto diminished. At assizes or borough sessions, speaking generally, prisoners are tried with great fairness and consideration, and cases of serious miscarriage are rare. Still, humanum est errare, and even before the highest tribunals and those whose constitution cannot be mended by any legislation, very melancholy and very shocking instances of miscarriage do from time to time occur. It is not their frequency, but their terrible and in some cases appalling consequences, that call for a remedy. I hope one will not be denied. It is not with the intention of exhibiting reform in this direction as impracticable, but with the hope of helping to render it better when it comes, that I have ventured to point out a few of the practical difficulties which must be solved one way or another, if the attempt is to be successful.

ALFRED WILLS.

ABSOLUTION.

Ir is well known that in certain parts of Christendom, and in certain sections of the English Church, considerable importance is attached to the words which appear in the Gospels of S. Matthew and S. John, as justifying the paramount duty of all Christians to confess their sins to Presbyters who have received episcopal ordination, and the exclusive right of Presbyters, so appointed, to absolve them.

It is not here intended to enter on the various objections raised on moral grounds to this theory. But it may be useful to show the original meaning of the words, and then trace their subsequent history. It will be then seen that, whatever other grounds there may be for the doctrine or practice in question, these passages have either no relation to it, or that whatever relation they have is the exact contradiction of the theory in question.

The texts are (in English) as follows:

•

The address to Peter (Matt. xvi. 19): Whatsoever thou shalt bind on earth shall be bound in heaven: and whatsoever thou shalt loose on earth shall be loosed in heaven.'

The address to the disciples (Matt. xviii. 18): 'Whatsoever ye shall bind on earth shall be bound in heaven: and whatsoever ye shall loose on earth shall be loosed in heaven.'

The address to the disciples (John xx. 23): 'Whose soever sins ye remit, they are remitted unto them: and whose soever sins ye retain, they are retained."

We will first take the two passages in the Gospel of S. Matthew. For the purposes of this argument the words addressed to S. Peter need not be distinguished from the words addressed to the disciples, as they are in each case identically the same.1

(I.) The phrase 'binding' and 'loosing' meant, in the language of the Jewish schools, declaring what is right and what is wrong. If any Master, or Rabbi, or Judge, declared a thing to be right or true, he was said to have loosed it; if he declared a thing to be wrong or false, he was said to have bound it. That this is the original meaning

For their peculiar meaning as addressed to S. Peter, I may be permitted to refer to a volume published many years ago, entitled 'Sermons and Essays on the Apostolic Age,' pp. 127–134.

of the words has been set at rest beyond possibility of question since the decisive quotations given by the most learned Hebrew scholars of the seventeenth century. The meaning, therefore, of the expressions, as addressed to the first disciples, was that, humble as they seemed to be, yet, by virtue of the new spiritual life and new spiritual insight which Christ brought into the world, their decisions in cases of right and wrong would be invested with all and more than all the authority which had belonged before to the Masters of the Jewish Assemblies, to the Rulers and Teachers of the Synagogues. It was the same promise as was expressed in substance in those other well-known passages: It is not ye that speak, but the Spirit of my Father which speaketh in you.' He that is spiritual judgeth all things.' 'Ye the Holy One, and ye know all things, and need not that any one should teach you.' "The Comforter shall lead you into all truth.'

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have an unction from

The sense thus given is as adequate to the occasion as it is certainly true. In the new crisis through which the world was to pass, they— the despised scholars of a despised Master-were to declare what was changeable and what was unchangeable--what was eternal, what was transitory-what was worthy of approval, and what was worthy of condemnation. They were to declare the innocence of a thousand customs of the Gentile world, which their Jewish countrymen had believed to be sinful; they were to declare the exceeding sinfulness of a thousand acts which both Jews and Pagans had believed to be virtuous or indifferent. They were empowered to announce with unswerving confidence the paramount importance of charity, and the supreme preciousness of truth. They were empowered to denounce with unsparing condemnation the meanness of selfishness, the sacrilege of impurity, the misery of self-deceit, the impiety of uncharitableness. And what the first generation of Christians, to whom these words were addressed, thus decided, has on the whole been ratified in heaven -has on the whole been ratified by the voice of Providence in the subsequent history of mankind. By this discernment of good and evil the apostolic writers became the lawgivers of the civilised world. Eighteen hundred years have passed, and their judgments in all essential points have never been reversed.

The authority or the accuracy of portions of the New Testament on this or that point is often disputed. The grammar, the arguments, the history of the authors of the Gospels and Epistles can often be questioned. But that which must govern us all-their declaration of the moral standard of mankind, the ideal they have placed before us of that which is to guide our conduct-which is, after all, as has been said by Matthew Arnold, three-fourths of human life-has

2 Hebrew and Talmudical Exercitations upon the Evangelist St. Matthew (xvi. 19). By John Lightfoot, D.D.' Works, vol. ii. pp. 206–7.