his shrievalty, and I wish that I had been at all aware that an opportunity would have occurred of adverting to 'these circumstances, as I would have taken care to have been provided with more distinct information; but I think the 'Commissioners will probably feel it their duty, when I have 'stated as far as I know the facts to which I advert, to en'deavor to procure the attendance of Mr. Wilde himself, and 'to obtain from him more minutely the cases to which I re'fer. I think he was sheriff during part of a year only, having been elected upon the death of one of the sheriffs chosen in September, 1827. I am not quite certain I am correct as to the date, but am right within a year. During the seven months he was in office, by his exertions he saved several men from public execution, I think as many as seven, but I am certain as to five. I had frequent communications with him upon those cases, while they proceeded. My impression is, that several out of those cases were cases of perfect and entire innocence, and that the others were cases ' of innocence, with reference to the capital part of the charge. The then secretary of state, Sir Robert Peel, paid great at'tention to every application for mercy, and having satisfied himself in each case, that the prerogative of the crown ought 'to interfere, the lives of every one of the individuals were 'spared. It is impossible to speak in too high terms of the

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zeal, humanity, unsparing labour and expense, which Mr. 'Wilde bestowed upon these occasions, but the result satisfi'ed me that the parties were in several instances guiltless of any crime, and in all cases, were such as did not justify cap'ital punishment; and Sir Robert Peel, after much labor in 'the investigation, was of the same opinion. It has always, since this occurred, been impressed upon my mind as a very appalling fact, that in one year so many persons were saved 'from public execution, for which I believe most, if not all of them, had been actually ordered; and though, I believe, undoubtedly, the sheriffs of London are in general conspic'uous for an active, humane and correct discharge of their duty, they have not all, and cannot have, the means of 'bringing to the investigation of such subjects, the same facil'ity and the same unsparing exertion that Mr. Wilde afforded while he was sheriff; and I am persuaded, and have been, ever since I knew those facts, that unless the practical difficulties are insuperable, which I do not apprehend would be

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'the case, some legal constitutional mode ought to be adopt ed, by which errors and mistakes, from whatever source ' arising, should be corrected in criminal trials, as well as they " may now be in civil cases.'

"In consequence of Sir F. Pollock's suggestion, Mr. Wilde was examined, and stated that in the space of nine months, during which he was one of the sheriffs of London, no less than six persons who had been capitally convicted at the Old Bailey, and left for execution, were saved from death, in consequence of iuvestigations showing that they had been improperly convicted. Being asked, 'Is it your belief that many เ innocent persons do suffer from the want of a proper mode of inquiry?' he answered, I think many innocent persons " have suffered the term innocent, I use with reference to 'the offence with which they are charged.' In answer to the question, From your own personal experience on the subject, and your general observations and knowledge, do you 'think that it would be desirable to provide some more cer'tain means for inquiry, in cases of doubt, after conviction?" he said, 'I think it indispensably called for. From the want of it, the sheriffs and officers of the prison, who, of course, are the only persons in constant communication with the ' prisoners, are often placed in a most painful situation, in 'having to judge how far, consistently with the discharge of 'their own duties, they ought to interfere.'

"Where a party has been convicted, improper evidence having been received against him, or legal evidence for him having been rejected on the trial, injustice is done to him if the objection be disregarded, and injustice is done to society in allowing the objection to prevail to his actual and final discharge. To take a middle course in such a case, in mitigating the sentence on account of the doubt, is not only unjust, but highly absurd: he cannot have been guilty of a fraction of the offence, and therefore ought not to be subjected to a fraction of the punishment. A wrong is done, either to the accused, in punishing him at all, or to the public, in not punishing him according to his desert. Where the verdict of guilty is fairly warranted by proper evidence, but a doubt arises as to sanity, identity or other material fact from collateral sources, difficulties result which cannot well be removed but by a new trial. The execution of the sentence would, though legal, be barbarous; to exercise the

royal prerogative, without a searching investigation, would be unadvisable and impolitic. The instituting a strict inquiry, would be in effect to grant a second trial; it would at least admit the necessity for one, and it would be made under circumstances the most disadvantageous to the discovery of the truth, without any of the powers and sanctions which in courts of justice are provided against fraud and imposition.

"We know, from long experience, that zealous exertions are frequently made on the part of the government, for correcting any suggested error or mistake in respect of criminal convictions, and also that those exertions have, in many instances, been highly beneficial, in rescuing convicted but innocent persons, from capital and other highly penal sentences. Still, as such inquiries must usually be conducted in secret, they are not unfrequently, however unjustly, the subject of popular jealousy or suspicion. It is also necessary to observe, that such an inquiry and statement as are necessary, in order to raise a sufficient case for further investigation by authority, are often beyond the reach of persons so unfortunately situated. The difficulties in the way of a prisoner obtaining a revision of his sentence, after an unjust conviction, are forcibly stated by Mr. Wilde in his evidence before your Majesty's Commissioners on Criminal Law. Being asked his opinion, whether a prisoner had any sufficient means of procuring a revision of his case, he says :—' I do not consider that at present there are any sufficient means. The prisoner convicted in London and Middlesex, may pre'sent a petition to the King in Council, through the Home 'Secretary, which may of course state all the grounds, either ' of fact or in law, upon which the conviction ought not to have taken place, and craving the mercy of the crown; or if tried at the assizes, may present a similar petition to the 'judge who tries him. This cannot be considered as in 'the nature of an appeal. From the state of destitu

tion and ignorance in which prisoners generally are, and 'from the want of a court and proper officers, the prisoners. 'have not the means for bringing their cases in a proper 'state for reconsideration; and I think I may state, that the prisoners generally consider that the only benefit that they can derive from a petition so presented, is from the mercy of the Crown. Practically speaking, unless sheriffs, magistrates and governors of prisons, and their officers, or charitable individuals, exert themselves in col

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'lecting and authenticating the grounds upon which a pri'soner seeks for the relief, and subsequently take the trouble ' of communicating with the Secretary of State, the prisoners 'have little or no chance of a successful result to their ap'plication. This applies as well to those who are innocent, as to those who merely seek for a mitigation of the sen'tence.'

"From the experience you have personally had, do you 'think it just and proper, or even necessary that there should 'be some regular and settled mode by which prisoners, even ' after conviction, may obtain a revision of their case in par'ticular instances?' 'I do; and I am perfectly satisfied 'that many persons have suffered punishments, where they 'have been positively innocent of the crime with which they are charged, and which, if there had been any court of appeal, with, of course, proper officers appointed, to whom the parties accused might have stated their grounds of ap'peal, there would have been a reversal of their conviction. or sentence.'

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"In your judgment, are the generality of prisoners aware of the means by which a revision may be occasionally obtained, by an application to the secretary of state? 'I have no doubt that it is known in prison conversation, that there is what is called a revision of the case, (that is, in capital felonies, but not otherwise;) but it is only done in the form of a petition, and is therefore rather an appeal to mercy, than the assertion of a right, and it is attended 'with considerable difficulties to the prisoners, from their poverty and destitution.'

"Have you had opportunities, from filling the offices of 'sheriff and under sheriff, of knowing what the situation is, of persons who have been convicted, and the difficulty of obtaining a revision of their case?' 'I have had that op'portunity; for, during the time I was in office, both as 'sheriff and under sheriff, I never failed attending in court, ' at the trial of prisoners at the sessions at the Old Bailey, ' and I was constantly through the prison of Newgate.'

"Now, from the experience you have had, in your judgment do you think it essential to justice, that revisions should 'occasionally take place after conviction?" Yes, I think so: in ⚫ all important cases to the prisoners, where, if injustice is done, "it would be more serious than in minor offences, although, upon principle, justice should of course be equal to all.'"

The views thus expressed in the report of the British Commissioners, have attracted much attention in that country. In an article in the London Jurist, vol. 2, part 2, p. 449, 450, several extracts from the report are given, and in concluding a review, highly commendatory of the principles contained in it, the reviewer observes: "After these extracts from the report, containing such sound and convincing reasons for the proposed change in the law, any observations of our own would be superfluous. To our minds they seem unanswerable; and we have inserted them in our pages, in the hope that it may be the means of making them known to some of our readers, who would not probably see them in the bulky volume of the report."

§ 521. A new trial is a re-examination of the issue, in the same court, before another jury, after a verdict has been given.

§ 522. A new trial can be granted by the court in which the former trial was had, only in the cases provided in section 524.

§ 523. The granting of a new trial places the parties in the same position, as if no trial had been had All the testimony must be produced anew; and the former verdict cannot be used or referred to, either in evidence or in argument.

§ 524. The court in which a new trial is had upon an issue of fact, has power to grant a new trial, when a verdict has been rendered against the defendant, by which his substantial rights have been prejudiced, upon his application, in the following cases:

1. When the trial has been had in his absence, if the indictment be for a felony;