which is the subject of the three reports issued by the Whitley Committee. The scheme which they have worked out has the great advantage of providing both for the autonomous administration of each industry as a whole by Joint Councils representative of all engaged in the industry, and for the consideration of local problems and specific questions arising in particular establishments, by District Boards and Shop Committees, representative of those immediately concerned. It is an additional advantage of the scheme that it is voluntary, elastic in constitution, and based not on the supersession but on the utilisation of the existing organisations-the Trade Unions and Employers' Federations.

In all Functional Devolution there is a certain danger of conflict between the powerful organisations createdof tyranny within the unit, and of undue prominence being given to a single phase of communal life. The first of these dangers does not yet appear to have been considered by the Committee, and it will probably be necessary to create some machinery by which the competing claims of various industries may be adjusted; but the risk of internal tyranny and the possible neglect of social interests are provided against both by the organisation proposed and the objects for which it is created.

For the purposes of the scheme all industries are divided into three categories. Those in which organisation is still rudimentary would be dealt with by the establishment of Trade Boards, representative of employers and employed, with a proportion of 'nominated members.' Such boards would possess authority in all matters of wages and working conditions; but they would also concern themselves with encouraging and facilitating such growth of organisation within the industry as would justify the Ministry of Labour in sanctioning the replacement of the Trade Board by a Joint Industrial Council representative of the Employers' Federations and Trade Unions. In industries where organisation, though imperfect, had reached an advanced stage, the creation of a Joint Council would receive immediate sanction; but the assistance of one or two members appointed by the Ministry would be given for so long as the Council itself should desire their presence. Finally, fully organised industries would be left to work

out their own salvation by means of a Joint Industrial Council, upon which the Ministry of Labour would be empowered to confer, at its own request, the status and authority of a Trade Board. In the case of both the latter categories, District Boards and Works Committees would be associated with the Council; and Trade Boards, linked with the Council, would be provided for special areas or branches in which organisation was backward.

These recommendations are on the right lines, and it may be said in general that proposals for making membership of functional organisations compulsory, or for the legislative application of their decisions outside their own membership, should only be carried out in cases where these bodies are so fully representative as to embody the corporate conscience of the industry or profession concerned. There is a valuable suggestion in the Builders' proposal for the creation of two distinct codes: one a compulsory code for which legislative sanction would be sought, confined to measures on which there was general agreement; the other a voluntary code proposed for experimental adoption. It must not be forgotten that compulsory powers are not essential to the exertion of widespread influence. Obedience to an unwritten code of professional conduct is a familiar feature of many walks of life; and the influence of unofficial organisations often extends far beyond their own membership. The nature and growth of the authority exercised by such bodies as the Jockey Club and the M.C.C. in the world of sport are well worthy of examination by students of social phenomena.

As regards the scope and object of the Whitley Councils, this embraces not only questions of wages and hours, but the improvement of methods of production and the general status of the industry. The agenda proposed for the Builders' Council includes the closer approximation of commercial and æsthetic requirements; and there is amongst both employers and employed a growing recognition of the fact that those engaged in production have a duty to the community, and that a man's work forms so important a portion of his life that his interest in it extends, beyond the money he receives and the conditions under which he works, to the worthiness of the work performed. Moreover, the connexions

between industry and social life are so close that the Councils may well come to play an important part in the consideration of many social problems, with the result of contributing valuable elements to the discussion, broadening their own outlook, and emphasising the indivisibility of national life.

It is not to be expected that the establishment of these Councils, which involves many difficult questions of industrial demarcation, should proceed rapidly, especially during the continuance of the war, nor is it to be expected that blunders will not be made at the outset; but the experiment is so important that a large amount of patience and tolerance may fairly be demanded. 'At the outset it might often happen that much of the discussion, either in a Works Committee or a National Industrial Council, was obstructive or irrelevant. But it has been proved again and again that contact breeds mutual understanding and responsibility calls forth capacity.'* The principle of Devolution involves faith in the willingness and ability of the nation to shoulder responsibility and to recognise obligations. It involves, also, the acceptance of certain risks. But the most highly centralised State direction can afford no guarantee of immunity from blunders, and the blunders of autocracy go deeper and are harder to rectify.

When all is said and whatever machinery is adopted, our national future depends upon the conception we form of national and individual life, its nature, its value, and its purpose. If we place our trust in power or wealth for its own sake, we may attain our end, but at the cost of all that is best in our national traditions and character. If we base our conception of national welfare on the fulfilment of the mutual obligations of the citizens, upon the sanctity and dignity of the individual life, and upon the nobility of service, we shall not go far wrong, whatever development our institutions may take.

C. ERNEST FAYLE.

* 'Memorandum on the Industrial Situation,' issued by the Garton Foundation.

Art. 5.-THE COURT OF CRIMINAL APPEAL.

1. The Law Reports, 1908-1917.

2. The Criminal Appeal Reports.

3. Le Système Judiciaire de la Grande Bretagne. Par le Comte de Franqueville. Paris: Rothschild, 1893.

4. Die Englische Gerichtsverfassung. Von Prof. Dr H. B. Gerland. Leipzig: Göschen, 1910.

5. The Court of Criminal Appeal. By R. E. Ross, LL.B., Principal Clerk of the Court. Butterworth, 1911. 6. Outlines of Criminal Law. By C. S. Kenny, Downing Professor of the Laws of England. Eighth edition. Cambridge University Press, 1917.

IT is just ten years since the greatest innovation made by one stroke in English law empowered judges at once to reverse the verdict of a jury on the facts of a criminal case and to revise sentences. It has been said that no institution ever does only what it is designed to do; it always does something else as well. So it has been in this instance. This we may enquire into presently; but first let us see how the new institution came into being. The records of the Court now contain material enough to illustrate its origin, its development and its efficiency.

For our immediate purpose we need not carry back our researches to any precise date. For centuries before 1848 the twelve common-law judges had been in the habit of meeting to consider, on the suggestion of that one of their brethren who had presided at a trial at which a criminal had been convicted, whether his doubts on some point of law which he had ruled at the trial were well founded, and whether, if so, they would recommend a pardon or some mitigation of sentence. They had no other constitutional power, for they were an informal body. The simple and august machinery of the royal prerogative to which they resorted, was as old as kingship, and has always been exercised, independently of judicial initiative, on the merits of the case; and this prerogative remains undiminished. It is still the only refuge after appeal for belated exculpations, due, perhaps, to the discovery of demonstrative testimony or to remorseful confession. The only other alternative to these

merciful deliberations was the cumbrous technical process known as 'error,' which was a very costly expedient.

These conclaves of judges were superseded in 1848; but once, in 1885, in order to review a decision of the superseding tribunal-the Court for Crown Cases Reservedit was found convenient to revive the old assembly of the judges.' That Court, composed of at least five members, was created in 1848 to enable a Judge of Assize or a Recorder, or a Quarter Sessions bench, when a jury convicted, to take its opinion whether he or they had determined some point of law correctly at the trial; if not, it had power to quash the conviction. The flaw here, as experience has shown, was that the case could only be thus 'stated' with the consent of the Judge or the bench whose law was impugned; if he or they had no doubt, nothing could be done for the defendant.

It is a mistake to suppose that the sensational Beck case of 1904 created the demand for reorganisation, though no doubt it quickened it. There were just men before 1907; for half a century at least a series of bills had been brought in to establish a court of criminal appeal; one introduced by Mr Fitzroy Kelly in 1844 is before us. But the crucial point in the Act of 1907 is that the initiative comes from the defendant, and not from the Judge* at the trial unless he chooses to give leave; no one's leave need be sought to test a point of law; and on a question of fact the only leave necessary is that of a Judge who has had nothing to do with the trial or, if he refuses, that of three other Judges. In short, the scene of preliminary contest for appeal has been transferred from the local court, in effect, to the King's Bench Division.

The epoch, then, of the new Court is marked by the recognition in law that a jury's verdict is not infallible. The jury could indeed often be a near approach to tyranny. Yet it had in the course of ages become sacrosanct; and the proposal to subject its primeval privilege, the determination of facts, to the revision of three lawyers naturally gave a shock to the John Bull tradition, and was promptly met by the outcry that the authority of the jury would be undermined. Trial by

* 'Judge' here means president of the bench and includes lay-chairmen.