The penal laws of the British Empire are, by foreign writers, charged with being too sanguinary in the cases of lesser offences. They hold that the punishment of death ought to be inflicted only for crimes of the highest magnitude; and philanthropists of our own nation have accorded with their opinion. Such persons as have had no opportunity of inquiring into the subject will hardly credit the assertion that there are above one hundred and sixty offences punished by death, or, as it is denominated, without benefit of clergy.Anthony KnappandWilliam Baldwin:Preface to “The Newgate Calendar,” 1824.
The penal laws of the British Empire are, by foreign writers, charged with being too sanguinary in the cases of lesser offences. They hold that the punishment of death ought to be inflicted only for crimes of the highest magnitude; and philanthropists of our own nation have accorded with their opinion. Such persons as have had no opportunity of inquiring into the subject will hardly credit the assertion that there are above one hundred and sixty offences punished by death, or, as it is denominated, without benefit of clergy.
Anthony KnappandWilliam Baldwin:Preface to “The Newgate Calendar,” 1824.
The progress we have made in the reform of criminal law in the last hundred years is really remarkable. In very recent days we have at last allowed the prisoner to give his evidence of the matter he is charged with if he desires to do so. We have, under certain restricted conditions, supplied him with legal assistance, and, best of all, there is at length a Court of Criminal Appeal.
It is interesting and encouraging when your mind has a bent towards legal reform to see how past reforms have come about. As recently as 1826 prisoners accused of felony were not allowed counsel, and the Rev. Sydney Smith, who had a winning way of stating the case of the Law and the Poor in his own day, was pleading in theEdinburgh Reviewfora reform of this matter. One would have thought then, as one often thinks now, that a mere statement of the issue would have been sufficient. This is a picture of things as they were. “There are seventy or eighty prisoners to be tried for various offences at the Assizes who have lain in prison for some months; and fifty of whom, perhaps, are of the lowest order of the people, without friends in any better condition than themselves, and without one single penny to employ in their defence. How are they to obtain witnesses? No attorney can be employed—no subpœna can be taken out; the witnesses are fifty miles off perhaps—totally uninstructed—living from hand to mouth—utterly unable to give up their daily occupation to pay for their journey, or for their support when arrived at the town of trial—and if they could get there, not knowing where to go or what to do. It is impossible but that a human being in such a helpless situation must be found guilty; for as he cannot give evidence for himself, and has not a penny to fetch those who can give it for him, any story told against him must be taken for true (however false) since it is impossible for the poor wretch to contradict it.”
And yet, absurd as it seems to us to-day, the prisoner’s right to counsel was not obtained without a severe struggle. At the back of the mind of those who opposed the reform was the idea that as prisoners were accused by the Crown it was an act of disloyalty to defend them. Ridiculous as that idea is it still exists in a form that is interesting only as showing that the tradition was once a reality.A King’s counsel has to obtain leave from the authorities, and pay a small tribute therefore, before he can appear for a prisoner and against the Crown. Leave is never refused, but the existence of such a curious custom is only comprehensible by studying the folklore of the subject.
A hundred years ago this folly sanctioned by antiquity was a reality. The defenders of the position said it was really all done in the interests of the prisoner. His witnesses were not put on oath, and this allowed them to tell any falsehood they wished; he was saved the expense of his counsel—as though he preferred economy to hanging—and the judge, he was told, was his counsel—an arrangement that the prisoner cannot have been very grateful for when he heard his counsel on the bench summing up to the jury for a conviction. The nonsense that was talked and written on this subject is encouraging to those who want things done to-day. Against all reforms, arguments of this kind have to be listened to and laughed out of Court, but to-day we are in a better position than Sydney Smith was, for we often find in the official world a human being ready to help on a reform when the time is ripe for it. In his day common-sense and common humanity had not permeated into Government offices, “the Attorney-General and the Solicitor-General for the time being always protesting against each alteration and regularly and officially prophesying the utter destruction of the whole jurisprudence of Great Britain.” It was not until ten years after theEdinburgh Reviewarticle was written thatParliament in August, 1836, passed an Act to permit prisoners charged with felony the right to be defended by counsel. And yet there are many people who think we move too fast in necessary reforms.
Sydney Smith mentions as one of the injustices to the prisoner his inability to give evidence. This remained a disability until our own time and was only removed with great difficulty and against the advice of many learned lawyers. The folklore of the subject is quite entertaining. Our ancestors considered, from introspective knowledge of themselves and their neighbours, that no one with any interest in a dispute was likely to speak the truth about it, they therefore did not allow the parties to a suit to give any evidence at all. This was the old law in both civil and criminal cases. Thus you may remember that in the great case ofBardellv.Pickwickneither plaintiff nor defendant gives evidence, because in law at that date they were not competent witnesses. The inconveniences of this in civil matters was patent to everyone but the lawyers. Writing on the incompetency of witnesses to give evidence, Bentham said with some humour, “in the bosom of his family the lawyer by the force of good sense returns to the simple method from which he is led astray at the bar by the folly of his learning. No one is so deeply tainted with his judicial practice as to apply its rules to his domestic affairs. If you would represent madness—but a madness where all is melancholy and unintelligible—you have only to imagine an English barrister carrying into ordinary life the fictions, the rules, and the logic of the bar.”Certainly we cannot believe that when Sergeant Snubbin returned to his house and found a dispute raging between his cook and his butler that he tried to find out the truth about it without hearing what either of them had to say.
In 1846 when County Courts were established, the parties and their wives were allowed to give evidence, and so obvious were the advantages of this that in 1851 Lord Brougham passed the Evidence Amendment Act extending the system to other Courts. The only thing that surprises us to-day is that there could ever have been any question about the necessity of allowing parties to give evidence if it was really desired that they should have justice.
But we still clung to the right of the prisoner to keep his mouth shut, and in our insular way boasted of his privilege. Thackeray is horrified by the examination of the prisoner in the ordinary French way. “In England, thank heaven, the law is more wise and merciful!” He sees in the French Government advocate an official seeking in every way to draw confessions from the prisoner to perplex and confound him and to do away with any effect that his testimony might have on the jury, and he thanks heaven openly that we should “never have acted as these Frenchmen have done.” What really troubled Thackeray’s patriotic mind was the indecency of asking the prisoner any question at all. Victorian Englishmen of all grades were peculiarly proud of our criminal administration of justice and considered the privilege of the prisoner to keep his mouth shut was the keystone of the edifice.
Dickens approached the matter more hesitatingly: “I wonder,” he writes, “why I feel a glow of complacency in a court of justice, when I hear the learned judges taking uncommon pains to prevent the prisoner from letting out the truth. If the object of the trial be to discover the truth, perhaps it might be as edifying to hear it even from the prisoner, as to hear what is unquestionably not the truth from the prisoner’s advocate. I wonder why I say, in a flushed and rapturous manner, that it would be ‘un-English’ to examine the prisoner. I suppose that with common fairness it would be next to impossible to confuse him unless he lied; and if he did lie I suppose he could hardly be brought to confusion too soon.”
This being the Victorian attitude in the matter it was hardly to be wondered at that the reform was delayed until our own day. Yet I doubt if anyone conversant with the criminal Courts would doubt that although there are cases where it has been to the disadvantage of the guilty to go into the witness box, it has been of enormous value to the innocent that he can give his own account of things to the jury.
There are three recent Acts of criminal law reform which have done much to safeguard the interests of innocent men, especially if they are poor. These are the Criminal Evidence Act, 1898, the Poor Prisoners Defence Act, 1903, and the Court of Criminal Appeal Act, 1907. If we could have such an outburst of legal reform every ten years in other subjects we should be doing well. But it must notbe thought that these reforms were obtained without trouble. Each was strenuously fought, year by year, for many many years before the energy and patience of the reformers were crowned with success.
One would have thought that the claim of a citizen, charged with a criminal offence, to give his account of the affair to the jury, if he wished to do so, was one of those matters of elementary justice that could hardly be contended against at the end of the nineteenth century, but the fight against this privilege was really a very strenuous one. Twenty years before the reform actually came the Bill had been read a second time in the House of Commons by a majority of 109, showing, at all events, that the lay mind of the country had no doubt about what should be done. In each succeeding year, when any new offence was created by Act of Parliament, there was a special clause put in to enable a prisoner to give evidence, so that at length there were some thirty or more Acts giving a prisoner the right to give evidence. This made the state of the law, as Lord Herschell said, “utterly indefensible and ridiculous.” We were living under two competing systems, whose constant absurdities were made manifest in the Courts; thus, if a man was charged with forging a trade mark he was a competent witness, if he was charged with any other forgery his mouth was closed.
Curiously enough, owing to the irony of our party system, it was the Conservatives who brought in this reform and the Radicals who opposed it. It was left for Sir Richard Webster to point to theprogress of all the States of America, and the experience of our Colonies, and to ask that we should not lag behind in the good work of reform. That sturdy radical, Mr. Pickersgill, was shocked, and elaborated the quaint argument that an innocent man should be debarred this privilege lest he might be an ignorant person who would tell lies, and get confused and muddled, thereby prejudicing his chance of acquittal.
A large body of influential legal opinion was adverse to the Bill, and in the division lists voting against the reform you find the names of Sam Evans, John Morley, W. S. Robson, Lawson Walton, and other well-known Liberals. It is one of the crosses that a legal reformer has to bear that only through the services of one or other of the great parties in the State can he hope to see his pet dream materialise and there seems a certainty that, if one party is converted to a proposal, the other party makes a point of being diverted by it. Over and above that unhappy difficulty to progress there is the certainty that the lawyers, as a profession, will always offer a strong opposition to any proposition of legal reform, and, when this is defeated, will fight strenuous little rearguard actions to cripple and delay it.
The Poor Prisoners Defence Act met with less opposition. It was a comparatively small affair, and there were a few fees in it. Mr. Justice Grantham—whose merits as a friend of the prisoner and a humane judge are often lost sight of in remembering his daring dives from the bench into the sea of politics—this good judge was a keen supporterof the movement for the better defence of poor prisoners. He thought the magistrates ought to ask the prisoner what his defence was, and tell him that, if he would state it, they would do all they could to assist him in proving it, and that, if he wanted evidence, they would adjourn the case and get evidence. His ideal was that the magistrate and the police should assist a man to prove his innocence, and that any sort of reasonable defence should be followed up at the public expense.
The letter of the Act, however, only gives the poor prisoner a solicitor and counsel and a copy of the depositions. No doubt the best is done for him that can be under these conditions, but it is not the same quality of legal defence that a rich prisoner can obtain for money. Naturally, counsel who take these cases are not men of the greatest experience, and the defending of prisoners is a difficult branch of the act of advocacy. A story is told of a Scotch prisoner, who had economically pretended he was without means in order to save counsel’s fees, calling out in agony as he heard his defender addressing the jury in a very unconvincing manner: “Young mon, if ye’ll sit doon at once I’ll give ye a feeve poun’ note.” Although the Act is not everything it might be, yet, undoubtedly, it is a move in the right direction and capable, under sympathetic administration, of doing much good.
The Criminal Appeal Act of 1907 has proved itself of such value already that it becomes the more amazing to read of the difficulty experienced in getting it on the Statute Book. All manner oflegal interests were banded together against it. One of the two learned king’s counsel who moved its rejection in the House of Commons solemnly declared that the cost of taking shorthand notes and the expense of bringing a prisoner to London from the north of England appalled him and, in his view, “the machinery of the Bill must inevitably break down ... it was absolutely unworkable.” The second uttered mournful prophecies of ruin: “to substitute,” he said, “this most costly machinery for the present system would deprive our criminal Courts of their principal glory in the deep sense of care, caution, and responsibility which was pervading the atmosphere of every criminal Court in the country at the present time.”
Many people seemed to think that juries knowing there was an appeal would take less pains and care in their duties. But a jury in a criminal case is a body of citizens called together on a special and solemn occasion to do a serious duty and the fact of appeal or no appeal would have little effect on their conduct. It was the slackness of some of the judges rather than the possible carelessness of juries that wanted looking to, especially in Courts of country Quarter Sessions where the shorthand writer and the Court of Criminal Appeal were bound to exercise a good influence. Nothing tends to good judicial work more certainly than publicity, a shorthand note, and a strong Court of Appeal easily available.
Although the criminal law has in the main been fairly administered and equally enforced against richand poor there are certain classes of laws which have often, no doubt from worthy motives, been used as engines of oppression against the poor. Of these the Blasphemy Laws are a standing example. Dr. Johnson tells us that: “Laws are formed by the manners and exigencies of particular times and it is but accidental that they last longer than their causes.” This is not altogether true. The fact is we have no summary machinery for removing decayed and obsolete laws from the Statute book. We want a legal lethal chamber for these old die-hards, these laws against Sabbath Breaking and Blasphemy and other old world wickednesses. A rich man may break as many Sabbaths and blaspheme at his will but he is never prosecuted for it. In the days of that great and good reformer, Charles Bradlaugh, the Blasphemy Laws were made use of to stifle the poor in the expression of their opinions in a very shameless way. Only last year a man was imprisoned under them in circumstances which gave rise to a good deal of uneasiness. He was no doubt an ill-mannered and unpleasant person, but ill manners and unpleasantness are not crimes, and to make use of these old Blasphemy Laws, to lock up the poor blasphemer only, is one of those things that does extensive harm by giving the blasphemer new fuel for his blasphemy, not only against the sacred things he does not appreciate, but also against the law which he finds ready to do injustice for the protection of these holy mysteries.
This again, like many of the things which we mayreasonably complain about in what is, as the world goes, a humane criminal law, is one of the matters handed down by our forefathers which we have not had time to set right. In the old days Unitarians and others were burned alive. Fuller in his Church History says: it was found that “such burning of heretics much startled common people, pitying all in pain and prone to asperse justice itself with cruelty because of the novelty and hideousness of this punishment.... Wherefore King James politickly preferred that heretics hereafter, though condemned, should silently and privately waste themselves in prison.” And that is what all heretics ought to do to-day if the law were equally administered, but as a matter of fact these laws are only put in force against poor, noisy people who preach their doctrines in the market place, and are a dead letter against those who preach the same doctrines on hand-made paper bound in morocco. I can quite believe that a bye-law to hinder one man saying coarse and ill-mannered things about another man’s religion in open spaces might be a reasonable police proposition; but there must be free trade in these things and the Established Church must not have a preference. Moreover, such a law must not be extended to pulpits or printing presses or much interesting theological polemics would be lost to us. For the Blasphemy Laws in the twentieth century, protecting only one form of religion and set in motion only against the poor, nothing can be said. Foul language and obscenity can and are punishable in other ways,and the cause of religion is poorly served by being protected by laws which are only set in motion when the well-to-do are annoyed by the vulgarity and ill-manners of the poor.
There is no gainsaying that once in the dock all men are equal or very nearly so, but one may harbour a suspicion whether all men have equal opportunities of getting there. Theoretically, the dock, like the Bench and the Cabinet and all other British institutions, is approached by an ever open door; but in practice more goats wander through the opening than sheep. Yet your sheep is a born trespasser. There are some who believe that his immunity from punishment is due to the wool on his back.
I doubt if this is altogether true. Crimes of violence and brutality are naturally the crimes of the less fortunate of mankind, and your sheep is more peaceably disposed than your goat. But when we come to the more modern crime of swindling we find that the criminal law is not very successful in punishing the fraudulent well-to-do. Fraud is a more complicated offence than larceny, and defrauders sometimes get the better of the law. Cheating is not always a crime, and successful cheating is a question of better education. That is why the rich so often keep out of the dock. The law is somewhat old and decrepit, and the modern well-to-do swindler is very much up to date. Therefore I fear it is as true to-day as it was in the days of Lord Chief Justice Coke, to say that the law “maketh a net to catch little birds and letteth the great ones go.”
If you cast your eye down the police news you will many times come upon the case of a low-down man or woman who goes round collecting for a mission that does not exist, thereby cheating the well-disposed of a few pounds or shillings. It is quite right they should be run in and sent to prison. They are pests stealing money that would otherwise relieve real distress.
But if they had had a little more money, and hired a house in some remote place, and kept half-a-dozen real orphans there, and called it The St. Anonymous Orphanage, they might have collected as many thousands a year as they liked for their excellent charity, and no one would have worried them by asking how the orphans were looked after, nor would anyone have wanted to know how much was spent on the orphanage and how much on the founder and his family, and their houses and carriages and furniture and upkeep. The poor orphan has many uses in the world. One of them is to enable the swindler to found orphanages and make his living thereby.
At first blush the crime seems the same as that of the house-to-house cadger who gets six months, but note that the uneducated man has told a lie and made a false pretence of an existing fact. The good Founder of St. Anonymous’s never did that. He had an orphanage with real orphans in it. True, there were not very many of them, and the orphanage was rather a stuffy, insanitary sort of place, though photographed on end it looks imposing enough. And that is themot juste, as theFrench have it; that is what the orphanage was, and what the good founder was—imposing.
If you tell no actual fibs the law does not mind you imposing as much as you like. You may transfer the savings of the working class into your pockets by promises of the wildest character and schemes of the silliest and most romantic sort, and if you do it successfully enough the nearest you will ever get to the dock will be a seat on the borough bench, from which altitude you may sentence the poor, mean criminal who never had any capital, and had no one to advise him as to the law of false pretences. This is not a fancy picture. There was at least one such a magistrate on the bench once, and for aught I know there may be some J.P.’s to-day whose wealth has been made by stealing the savings of the working classes within the law.
Certainly in this country we have been free from the subordination of the Criminal Courts to the power of gold that is said to exist in other civilised places. Any preferential treatment that exists is of a class character—snobbish if you will, but not corrupt. As an Irish barrister said to me at Liverpool—he was a great Home Ruler with a grand hatred of England and a real affection for many Englishmen: “My dear Parry, you’ll never convince me that the Government ever meant to hang Mrs. Maybrick. They’re a cowardly lot of snobs, and anyhow they couldn’t hang a woman they might have to meet out at dinner afterwards.”
And there is undoubtedly running through all our English institutions, even the administration of thecriminal law, a certain amount of class snobbery which it would be better should be eliminated. Judges and magistrates are, of course, only human. The wrong doing of a man or woman of our own class naturally appeals to our bump of forgiveness more readily than that of a slum dweller whose temptations and environment we know nothing about.
Thus we can remember cases where lady shoplifters were discovered by eminent physicians to be suffering from some extraordinary form of neurasthenia—not insanity, of course—but one of those nervous breakdowns that made an acquittal and a rest cure in a nursing home the only appropriate course. Magistrates seem to grasp the medical facts about these well-to-do unfortunates almost too readily; but had it been a drunken woman snatching a pair of boots from a shop-nail in the street no eminent physician would have diagnosed her peculiar form of neurosis. Even if her husband had tendered evidence that of late the poor lady had been strange in her manner, he would scarcely have been listened to with much sorrowful attention. The good magistrate would have felt bound in the interests of the poor tradesman to make an example of this criminal. Such cases are not cases for acquittal, and the rest cure is generally three months hard.
There are certainly too many cases where the wealth and position of a prisoner leads to favoured treatment in the Criminal Courts. I am glad to note that these are always pilloried in the Press andpublicity is given to them, and in a way nothing could be better because it is the open door that has done so much to keep our courts free from the taint of any suspicion of real corruption. I firmly believe that when these cases do occur they are generally the outcome of a spirit of humanity on the part of the presiding judge coupled to a certain extent by a class feeling of tenderness on account of the terrible downfall of a man or woman in his own social position. Such cases, too, are rare. No special note is taken of any case where the law takes its ordinary course and the rich criminal is treated in the same way as his poorer brother. These are, of course, the great majority, and there are also many cases I am glad to know where leniency and mercy is extended to the poor criminal and he is helped by societies and personal aid to regain his position among honest men.
But with all this the poor man can point to too many instances where rich hooligans running amok with a motor car in Regent Street or assaulting the police on a racecourse are let off with a fine. Here is a curious case from the London Sessions that is bound to cause a lot of talk in the mean streets. A fashionably dressed young man was indicted in an admittedly false name, and was allowed to use it for the purpose of the proceedings, and pleaded guilty. He had obtained a sable stole, value £40, from a costumier in Shaftesbury Avenue by false pretences. He had opened an account at Oxford. He received a cheque book and then withdrew his money and closed the account. He used to obtain goods whichhe paid for with cheques on the Oxford Bank, and cheques to the amount of £5,241 6s.3d.had been returned marked “no account.” A detective said he was a young man leading a fast life. The city police had a warrant for him for obtaining a ring value £145 and a gold watch £15. These articles it is true were returned. The Oxford police had a warrant out for him and when arrested he was attempting to obtain a valuable fur article in Dover Street. His counsel urged that his parents were people of respectability and integrity who had suffered losses, and the young gentleman was trying to keep things going in the same style he had been accustomed to, and had come under bad influences. That is the whole story, and the report ends, “the defendant was bound over, the magistrate remarking that there was no need to cause his relatives to suffer by mentioning his name.”
How many poor men and women whose children have been taken away from them for long terms of years to a reformatory or sent to gaol for months with hard labour, to the knowledge of all their neighbours, will read that report, and what will they think and say of the justice of our criminal law? One pities the parents and relatives of this particular young criminal waster as one pities the parents of all children and the children of all parents when one or the other bring disgrace or ignominy on the home—but why is this one particularly undesirable swindler to be allowed the privilege of an alias in an indictment, and why is his name alone among all the prisoners arraigned at the Sessions to be keptfrom the world? And how hard it will be on some youngster of like criminal tendencies when he comes before a court where harsher methods prevail, and he finds that not only is his name brutally noised abroad, but offences of this character are deemed worthy of imprisonment.
One would not wish to say a word against leniency to the young however much it may savour of class-tenderness, but the concealment of a criminal’s name on his trial because his parents are well-to-do and respectable, is just one of those things that the poor people treasure up and quote as an instance of the law’s unfairness. At a time when every effort should be made to impress on the poor the impartiality of the law little cases of this kind, arising no doubt from motives of kindness and humanity, are exaggerated and quoted as typical of our criminal administration—which assuredly they are not.
In cases where the whole of the resources of the State are against the prisoner fair play demands that everything that can be done for him without detriment to the demands of justice should be done. In a case of murder which created a great sensation this year, the whole evidence turned on identity. Several witnesses came to the police and said they had seen the victim, a child, in company of the prisoner. Other witnesses had stated to the police that they had seen the victim in company with a woman. During the examination of the police inspector in charge of the case he was asked by the defence for these statements, the magistrate expressed his opinion that they should be shown tothe solicitor for the defence, but the counsel for the Crown, a gentleman of very wide experience, “suggested that the proper thing for the solicitor for the defence to do would be to go and see the people.”
I do not for a moment say that the learned counsel was inaccurate in his statement of a legal proposition. It may be that such is the law; but if it is what does it mean? The police have honest statements of citizens in their hands suggesting that a man has committed murder, they have equally honest statements from other witnesses that the murder has been committed by a woman. However mistaken they may believe the latter statements to be, surely fair play demands that the prisoner should have access to these statements for what they are worth. After all he is at present to be deemed an innocent man, he is not even committed for trial, and he is a citizen with as much right to the protection of the police as any other. If they have statements going to prove his innocence he ought to have access to them and be told who has made them so that he and his solicitor can see how far they help to prove his case. But no, that is not the official view. Counsel for the Crown no doubt states it correctly. The proper thing is for the solicitor for the defence to go about at the expense of the poor man he is defending and find these people out and take statements afresh. It is a denial of justice, the man has not the money to do it, his solicitor is not a charitable institution, and even if he were he probably has not money and staff for such work. In this particular case the whole of the police hadscoured London for evidence to clear up the mystery. Surely when a citizen was charged with the offence public interest demands that the matter that has been discovered that goes to prove innocence should be as readily available as matter that goes to prove guilt. The present practice is to my mind a tradition, handed down from the bad old days, that needs to be swept away. We ought to free our criminal law from any shred of suggestion that the State is out to obtain a conviction rather than an acquittal. The State is only interested in the truth and justice of the verdict, and a true verdict obtained by methods of injustice is a crime against the community.
Much might be said on the inequality of punishments. The question of the advisability of corporal punishment is one upon which people hold strong and conflicting opinions. I am not a sentimentalist on this subject. I am told by some quite sane and scientific thinkers that for men, women and children of the hooligan class who have a mania for violence and destruction it is probably the most appropriate form of punishment. Its good qualities are that it is cheap; it is soon over, but irksome whilst it lasts; and it is said to appeal to the homeopathic instincts of the hooligan class who recognise the justice of meeting violence by violence.
Against these positive merits it is very unequal in its incidence; one victim will suffer more than others over the same punishment; and it is brutalising, in some measure, to the flogger and floggee. Too much may be made of this last argument, for nothing can be more brutalising and deadening to all hopefuland better instincts than long terms of imprisonment.
On the whole, my instinct is against flogging, because I am an optimist and believe that though it has had its uses in the past as an educative influence we have come to a state of civilisation when we should abolish if possible all violent or cruel punishments. There was a lot perhaps to be said for thumbscrews in their day, but that day is admittedly over. My grumble about the cat-of-nine-tails and the birch is not so much that the law should put them in the cupboard once and for ever, but that if they are to be used at all, their lashes should, like God’s good rain, descend on rich and poor alike.
Take the crimes for which flogging is permissible punishment to-day. For adults there is garrotting, offences under the Criminal Law Amendment Act, procuring, etc., and being an incorrigible rogue. For lads under sixteen, stealing and malicious damage.
Now the first objection to these punishments is that whether flogging is or is not to be administered depends altogether on the taste and fancy of the presiding Judge. Some think it is an advisable form of punishment; others view it with disfavour. This element of human lottery in the administration of the law should surely be kept under as far as possible. Out of a hundred and forty-five criminals convicted of robbery only three were flogged. An intending robber therefore who studies judicial “form” in the statistics will see that it is aboutfifty to one against the cat, and if he is the one unfortunate surely he has a distinct grievance against the forty-nine lucky blackguards who escape.
When only three criminals receive this punishment in one year it is worth while considering whether it should be continued, or, if it is to be continued, whether it should not be extended to crimes against women and children and other nameless horrors. Highway robbers to-day are all of the lowest and the poorest, but in the other category of crime there are sometimes men of means who find their way into the dock.
If it ever comes to be recognised, as Butler in his beautifully prophetic account of the land of Erewhon would have us believe, that crime is a disease and should be treated by a family Straightener, as we now call in the doctor, then all doubts as to corporal punishment will disappear. The Erewhonians when they had lapsed from the path of honesty took, under their doctor’s advice, a flogging once a week and a diet of bread and water for three months on end with the same heroism and resignation with which we undergo a cure at Harrogate after a London season. Once recognise that the birch rod is a cure for dishonesty, violence, and malicious injury to property, then all sensible men and women afflicted with these tendencies would welcome the cure and visit their Straightener as they now visit their dentist.
But at present we are far from the realisation of these sane, clear-sighted dreams. Flogging, as the law uses it as a punishment to-day, is not used, I fear,merely as a remedy or even a deterrent but rather by way of revenge. It is almost wholly used against the very poor and degraded. Even under the White Slave Act, I cannot remember any case in which it has been used against a well-to-do man. In any case it is only available against the actual procurer and not against the landlords, ground landlords, restaurant proprietors, and dressmakers, who knowingly share in the woman’s earnings and live on them.
Flogging may, or may not, be an advisable form of punishment, but if it is to be used, let it be administered automatically and without fear or favour to all beasts and blackmailers and hooligans, be they rich or poor. At present the chances of a rich man being flogged for his wickedness on earth are about the same as those of the camel with an ambition to loop the needle.
THE POLICE COURT
Squeezum.The laws are turnpikes, only made to stop people who walk on foot and not to interrupt those who drive through them in their coaches.Fielding: “The Coffee-house Politician.”Act II., Scene II.
Squeezum.The laws are turnpikes, only made to stop people who walk on foot and not to interrupt those who drive through them in their coaches.
Fielding: “The Coffee-house Politician.”Act II., Scene II.
When Fielding was made a magistrate for the county of Middlesex in 1748 the popular notion of the office was expressed in the nickname, “The trading justice.” He was paid by fees and had a direct interest in the prosperity of crime. The fees, moreover, were very small, and it was a recognised thing that he should make his office a lucrative one by methods exemplified by Mr. Justice Squeezum in Fielding’s farce. Although the great writer fulfilled the duties of his office with honour, fidelity, and zeal, he has left us in no doubt about the immorality and ignorance of many of his fellow justices. It is a relief to turn from the justice room in Bow Street in the eighteenth century with its rogues and vagabonds on their way to the whipping posts of the Bridewell, and its highwaymen and thieves starting for Tyburn by way of Newgate, and to look on the comparatively civilised picture of a metropolitan police court of to-day.
A century and a half has worked wonderful reforms for us in the world of police and police courts, but one cannot honestly say that nothing remains to be done. Direct bribery is no doubt abolished, justice is fearlessly administered, but there are still traditional methods of imposing fines and imprisonment which cause the poor to think that carriage folk go more easily along the turnpikes of the law than those humble ones who travel perforce on foot.
I am not writing of the police court as the antechamber of the Old Bailey. In relation to the grave crimes against society we may fairly boast that rich and poor are treated much alike. But the police court in matters within its own jurisdiction is a machine for teaching better manners to the poor. It is a somewhat harsh machine, perhaps, but in the main just and necessary at the present state of our evolution.
When folk are naughty and violent and ill-mannered and ultra-selfish, and become a nuisance to their neighbours, the police, if they are poor, take them in hand, but if they are rich they are dealt with differently. Unless they are so extravagantly and absurdly naughty as to become a public as opposed to a private nuisance, there is no necessity for the police to tackle the rich. When two “lydies” go for each other in the gutters of Whitechapel the police step in, but when the same thing happens in Mayfair, society—with a big S—maintains its own discipline.
The reason why rich folk are not so outwardlynaughty as poor folk is very much a matter of education and environment. As Lord Haldane in his valuable speech in America explained to us, there is a “system of habitual or customary conduct, ethical rather than legal, which embraces all those obligations of the citizen which it is ‘bad form’ or ‘not the thing’ to disregard.”
Thus in the days of Sir Anthony Absolute it was “bad form” not to get drunk after dinner, and it was “not the thing” to refuse to fight a duel. These laws of conduct were not enforceable before magistrates, but they were laws all the same, and rich people dared not disobey them for fear of being “cut” by society.
And as the years roll on better education, better housing, better wages, and less of that repressive Sabbatarianism that drives the poorer youngsters into natural mischief will make the police court less and less necessary as a school of manners. The conscience and good manners of all classes attain a higher ideal every day, and the only reason the rich arrive at a better standard of outward manners than the generality of the poor is that they have been caught young and made to practise at it for generations. It is not a matter entitling them to praise, but we are out to set down and discuss facts, and undoubtedly it is so.
For instance, you would expect an Eton boy to play better cricket than a St. Andrews caddie, but the caddie would probably beat the other’s head off at golf. It is environment that does it, and the lesson to be learned is to improve in every way thematerial surroundings of the poor to the utmost of our ability. Meanwhile the police court seems to me as necessary a part of our equipment as a sewage works or an ashpit.
Crime is not only a matter of heredity and education, it is also a question of geography. This geographical distribution of crime is an intensely interesting subject. You will find that Cardigan, for instance, is the whitest county in England and Wales for crimes of all kind, whether against property, morals, or of a violent character. Glamorgan, on the other hand, is only beaten by Monmouth in records of crimes against property; in crimes of violence Glamorgan is easily first; in crimes against morality Glamorgan again is only beaten by Dorset, Berks, Lincoln and Huntingdon, the latter taking the 1905-09 record very comfortably. Monmouth, happily, in this latter class of crime is in a far better case than her neighbour.
If you can trace the history and causes of different crimes in different districts I believe you may hope to sterilise a county of certain crimes by moral sanitation and stamp them out just as we have rid counties of typhus and the plague. In dealing with uncivilised crimes of mischief and destruction we should always bear in mind that the poor who do these acts are very often only human beings who have not been cultivated up to modern standards. Some crimes are traditional in certain districts, and the imitative faculty being strong in criminals, heredity and mimicry work together to cause a certain historicity in crime.
Magistrates and others do not sufficiently study this. Patriotic county officials loudly deny what everyone who reads the Judicial Statistics knows to be true. In discussing the Edalji case I pointed out that to anyone who studied the history of crime it was far more likely that such crime would be committed by a native of the county than by a gentleman of Parsee descent. This seemed to annoy some ardent Staffordshire folk, but there is no reason why it should. Killing and maiming the cattle of others is a very ancient pursuit and has only recently been regarded as criminal. The wicked man in the Bible was often threatened with the destruction of his cattle. No doubt the righteous man was encouraged thereby to take upon himself the duty of avenging his wrongs by destroying his wicked neighbour’s cattle, and the wicked neighbour, believing himself to be the righteous one, retaliated in kind. Certain it is that in border countries we always read of cattle raiding and killing and maiming, and perhaps one reason why Staffordshire is old fashioned in the cattle-maiming business is that it was a border country, and in the good old days the lords and squires raided cattle and destroyed their neighbour’s farms and boundaries, and these antiquated habits remain with some as natural instincts of revenge.
In early days such acts were not considered criminal. The only malicious injury to property known to the English common law as a crime was arson. It was not until the time of Henry VIII. (37 Hen. VIII., c. 6) that it was discovered thatthere were “divers sundry malicious and curious persons, being men of evil and perverse disposition and seduced by the instigation of the devil, who, to damnify the king’s true subjects went about burning frames of timber ready to be set up and edified for houses,” and broke down dams and moats or cut away lead pipes, or barked apple trees, or cut out beasts’ tongues, which seems a very ancient and horrible form of maiming cattle. The penalty for these latter offences was the inadequate fine of ten pounds.
In 1722 came the Black Act which made it felony without benefit of clergy to “unlawfully or maliciously kill, maim, or wound any cattle.” In 1861 a Malicious Damage Act (24 & 25 Vict. c. 97) was passed, codifying all the law relating to such offences, and that is the Act under which Mr. Edalji was indicted.
I have worked out the geographical statistics of cattle maiming in England for forty years, from 1861 to 1900, and they are extremely interesting. In the first place it is well to know that the total number of such crimes is rapidly decreasing. In five years, from 1865 there were over a hundred cases; in five years prior to 1900 there were less than fifty. The counties, which total more than twenty cases each, are York, Sussex, Middlesex, Lincoln, Lancashire and Staffordshire. Somerset and Gloucester have nineteen cases, but Gloucester has only one case since 1882 and Somerset only six cases since 1870. Surrey has only eleven cases, and only five occur since 1870. Angleseyand Westmoreland have only one such charge each during the whole forty years. In the case of Staffordshire, in the twenty-two cases taking place from 1861 to 1900 fifteen cases had taken place since 1877, and there is never a clear five years in the period without a case.
In 1903, when the Wyrley outrages took place, it seems to me that a county with this history would have been sensible to look at home for the criminal. In counties such as Somerset and Surrey, where the offence seemed then to be dying out, the same considerations would not apply. Whereas in Westmoreland or Anglesey the expectation would be that the crime was committed by a stranger. I do not think it would be wise to press these speculations too far, but at the same time I think magistrates and police might make greater use of the wonderful statistics that are collected and published by the State at such great expense and learn useful lessons from them in their daily business.
Whilst we condemn the horrible savagery of such crimes it is only fair to remember that the law does not punish them for their cruelty, but only for their injury to property. Prevention of cruelty to animals is a far more modern branch of law, the beginning of which dates from 1822. When Lord Erskine moved his Bill against Cruelty to Animals in 1811, so absurdly sentimental did it seem to the assembled peers that they drowned his speech in a chorus of cat-calls and cock-crowing. It is well to remember when measuring punishment in the police courts that there are individuals and classes existingto-day that are scarcely more civilised than the lords and barons of a hundred years ago.
The feudal lords and their henchmen did many things in the good old days in their quarrels with their neighbours which to-day would bring them before the justices. They wounded with intent, they did grievous bodily harm to anyone who annoyed them, and they did as much malicious damage to property as seemed in their own eyes a fair set off for insults had and received. Among a certain small degraded class in our own country these traditional pleasantries of the country-side are not fully recognised to be crimes. There are a set of men among whom it is not “bad form” to commit these acts. This form of atavism requires not only pity but further and better repression at the hands of capable police.
As long, therefore, as we have these hereditary tendencies to crimes of violence and selfishness, the police court seems to me to meet a felt want. I can imagine a better world without any police court, just as I can imagine this world with a better police court.
But I should like to see imprisonment kept entirely for evil-doers, and that side of the police court work which consists in rate collecting and semi-civil proceedings transferred elsewhere. At present many are sent to gaol in the police court for the crime of poverty. In the cases of non-payment of rates or of orders on parents to pay subscriptions to industrial homes it seems a very bad policy to send a poor man to prison. It takes a man fromwork, it does not produce money, and it throws a family into the workhouse.
In these cases there is no pretence of proving a man’s means and sending him to gaol because he can pay and won’t. No such evidence is necessary. The man goes to prison because he is poor and has not the money to pay. If the State thinks fit to put a man’s child in a reformatory, one would think it might stand the expense of it, without ruining the home by imprisoning the father because he cannot subscribe towards his keep.
With regard to orders for maintaining a separated wife, or affiliation orders, everyone would have less sympathy with the man who is sent to prison for not paying these. But if a man has not the money he does not make any in prison, and what these poor women want is regular weekly money.
These are special cases in which I think power to attach a man’s wages up to a certain percentage would be a just and reasonable proposition. Such a law might be unpopular with mankind, but it seems fair to the women. Whether it would tend to increase or decrease maintenance and bastardy orders I have not the least idea.
“Five shillings and costs or seven days.” This familiar phrase, as Count Smorltork says, “surprises by himself” the whole philosophy of police courts. Nothing is more marked in the treatment of rich and poor in the police court than the unfair incidence of fines. Take, for instance, the common case of a motor-car driver being fined forty shillings and costs for exceeding the speed limit and driving to thedanger of mankind. If his master is a Cabinet Minister, say, he writes a civil letter to the clerk to the magistrates expressing his regret and enclosing the needful, which is just two five-thousandths of his official income.
But supposing he is a taxi-cab driver who owns his cab, or is buying it on the hire system, as many do. He, too, is fined forty shillings and costs, and as he earns, let us say, forty shillings a week, he has to pay one fifty-second of his income.
If he cannot raise the money his home is distrained on, or there is the option of imprisonment. That kind of option never worries the Cabinet Minister or the chauffeur thereof. In the old tithe days the parson took his tenth from rich and poor alike, and was no respecter of persons; all he wanted was one-tenth of your income in cash. As between Cabinet Minister and cabman the relation of fine should be as two pounds to ninepence—that is to say, if the law in the police courts desires to treat rich and poor alike.
There is no difficulty about doing this. All that is wanted is to enact in your statute that the fine should “not exceed one-fiftieth or one one-thousandth of a man’s income.” Then all would be fined off the same mark. At present the poor man is the scratch man, and the greater the wealth the longer the handicap.
As to costs, they should be wholly abolished. They are not only an odious tax on the poor, but they give the officials of the court an unholy incentive to make the court a paying concern, and, whatis worse, give every clerk and officer in the police court a direct pecuniary interest in convictions. As things stand to-day a council of city men are not likely to advance salaries where their police court is losing money. A godly and righteous police court should glory in losing money year by year.
And whilst I recognise that at the head of each police court there should be a stipendiary to deal with the more important cases, and always to be within call when there are cases to try in which the local magistrates have a class interest, yet I have no desire to abolish Dogberry, nor do I take any pleasure in reading that he has written himself down an ass. In our chief cities there are now excellent stipendiaries and magistrates of all classes, including representatives of working men, and all can testify how—taking the police court system as it stands—it is worked fairly and carefully and to the advantage of all.
But these places are far ahead of the county towns and districts where the squire and parson reign supreme, and the clerk to the justices is their own faithful attorney. I believe thoroughly that these men do their best, but it is quite impossible that they can take a normal view of such horrible crimes as the rape of a pheasant’s egg or the snaring of a hare. It is from the beautiful little corners of the lovely English country that the bitter cry of injustice in the police courts makes itself heard from time to time in the public Press. Why should not every hamlet have its Village Plowden to brighten life on the country side?
There we see, let us hope, the last of a decaying and rotten system—justice administered by a class unlearned in law, and unlearned in a far more important branch of their business—the knowledge of the works and days and temptations of the fellow sinners whose judges they have elected themselves to be. In the remote country places more than anywhere is the stipendiary a necessity. Meanwhile, why should not direct representatives of the agricultural labourer be placed upon the bench if we are not to abolish Dogberry altogether?
While these words are being written, an effort is being made with a Criminal Administration Bill to do away with some of the abuses of the police court. The imprisonment of people for non-payment of fines is really imprisonment for poverty, and the scandal of it is at last officially recognised and the necessity of reform admitted. That, at all events, is to the good, though it is to be hoped that if the Bill at present put forward is to pass it will be widely extended and simplified.
It is quite a good thing to enact that it shall be obligatory upon magistrates to grant time for the payment of fines, but seeing that the magistrates have always had this power and never used it to any useful extent it would be well that there should be less discretion about the matter. Law for lay magistrates should be automatic and fool-proof. When you enact that a magistrate is obliged to allow time for payment of fines, “unless the Court for any other special reason expressly directs that no time shall be allowed,” you are surely inviting theaverage justice to supply himself with special reasons why he should not carry out a law which you know by his past history he dislikes. It must not be forgotten that in Manchester, although the fees legally allowed for a summons are twelve shillings, the practice has been for fees not to exceed the fine. Imprisonment for less than five days—which in the future is not to be permitted—has for a long time not been allowed by the practice of the Manchester justices. Where justices desire to be lenient and enforce the law temperately they can do so to-day, and therefore it is clearly no use in a new statute to leave a discretion to those who will certainly abide by old and evil customs unless they are forced to do otherwise.
The statistics of the police courts show that in one year 92,000 citizens were imprisoned in default of the payment of a fine and 80,000 imprisoned without the option. The number of persons sentenced to pay fines is no less than 460,000. Every year new statutes are passed making new offences which can be committed with practical impunity by those whose purses are long enough. Under the heading Betting and Gaming, 3,346 persons were fined and only 738 went to prison. Under the heading Motor Cars, 10,631 were fined and only 36 went to prison in default; under the heading Sunday Trading, 6,654 were fined and only 12 went to prison by default. These offences are generally committed by persons with some money; but where the parties are poor what a terrible difference in their punishment. The mere giving of time topay fines will not abolish this injustice unless the fines are made, as has been suggested, in some ratio proportionate to a man’s income. If it were enacted that a fine should not exceed a day’s wage earned by the prisoner, that would be a method of doing away with the burden of useless imprisonment that has to be borne by the poor. It is no use enacting that the Court in fining an offender shall take into consideration the means of the offender. I make no doubt that this is done already to a large extent by stipendiaries and the more enlightened magistrates. What is wanted is an actual printed tariff of fines fairly proportioned to the means of the offender, beyond which the magistrates may not go. Measures that depend on the sympathetic working by the members of the bench will be in many districts a dead letter, and inasmuch as the folk who go to prison in these cases are always poor people, very little will be known of their trouble except by those few persons who study blue books and statistics.
This habit of the magistracy to ignore the good intentions of Parliament and the Home Office is in nothing more marked than in the refusal of many country benches to give bail to poor people charged with offences that have to be tried at Sessions or Assizes. Many judges have called the Grand Juries’ attention to the large number of prisoners who are left in prison awaiting trial, some of whom are ultimately acquitted. But this is one of the matters where magistrates must of necessity have discretion, and although they receive Home Officecirculars calling attention to their duties in the matter of bail they prefer to go their own wrong-headed way and unnecessarily keep a large number of poor persons in prison who might quite safely be allowed to remain out on bail.
It is curious how history repeats itself and how a lay magistracy, as a type, always tends to act without sympathy or consideration for the poor. A hundred years ago the Yorkshire magistrates came to the conclusion that it was a most improper thing that poor people committed for trial to the House of Correction should be allowed to idle their time away at the expense of the county, so they actually required them to work for their living, and as the treadmill was the only apparatus of a commercial character in the gaol the poor untried prisoner was put to walking round a wheel in company of his convicted brother. The way in which the matter was put by Mr. John Headlam, M.A., Chairman of the Quarter Sessions for the North Riding of the County of York, is a perfect specimen of the true Dogberry temperament: “With respect to those sentenced to labour as a punishment, I apprehend, there is no difference of opinion. All are agreed that it is a great defect in any prison where such convicts are unemployed. But as to all other prisoners, whether debtors, persons committed for trial, or convicts not sentenced to hard labour, if they have no means of subsisting themselves, and must, if discharged, either labour for their livelihood or apply for parochial relief; it seems unfair to society at large, and especially to those who maintainthemselves by honest industry, that those who, by offending the laws, have subjected themselves to imprisonment, should be lodged and clothed and fed, without being called upon for the same exertions which others have to use to obtain such advantages.”
Of course the whole question is begged when an untried prisoner is called an offender against the laws. The Headlam view of him always has been, and is to-day, that the mere fact that a policeman has arrested him is proof that he is an offender; this for all time has been justices’ law, but it is doubtful whether the old doctrine that a man is to be deemed innocent until found guilty by a jury of his peers is not still sound law and ought not to be more fully recognised by the lay magistrates.
Of course the particular wrong that Mr. Headlam was contending for has long been abolished, not indeed without much argument and trouble, but we still punish an untried man by imprisoning him before trial, and in very many cases this is wholly unnecessary. The idea of keeping a man in prison is that he should be forthcoming on the day of trial. In some serious cases it is obviously necessary to keep a man in custody, but in many small cases if a cheap bail was fixed there would be no difficulty in finding the sureties and the prisoner could be outside arranging for his defence and earning money for the support of his family until the day of the trial.
Of 598 people acquitted at Assize Courts only 294 were allowed bail, so that there is a clearadmission in the official figures of three hundred innocent persons—or persons not provably guilty—remaining in prison because the justices will not carry out the Home Office suggestions as to bail. Remember too that in some remote places there are very few assizes and eighteen of these unhappy persons remained over three months in prison awaiting trial. At Quarter Sessions the figures are even more remarkable. Of 1,586 prisoners acquitted only 688 had been granted bail. Here you have a large number of innocent men and women kept in gaol charged with offences that are not of the most serious character, and this is done not because in this peculiar instance the law itself is harsh—because the law permits bail and the government office calls on the magistrates to make use of the law—but because the law is administered by well-meaning but incompetent men who have a fixed delusion, handed down to them from their forbears of hundreds of years ago, that a man arrested for a crime by the police and awaiting trial is, to use Mr. Headlam’s phrase, “an offender against the laws.” Where there are no stipendiary magistrates it would not be a bad plan to give any prisoner a right to appeal on refusal of bail to a judge of the County Court who lives within the district and is of necessity a magistrate though he seldom has much time to sit at petty sessions.
Before we leave the Police Court I should like to draw attention to a well-founded complaint against police methods that the Home Office might certainly take into their consideration whenthey are reforming the administration of the criminal law. I refer to the practice of identification which has come so prominently before public notice in recent criminal trials. I never met a prisoner who felt that it was fairly done. For myself, I have the firmest belief that the police endeavour as a rule to do what is right and straight, but after all we must not lose sight of the fact that the police are there to clear up the crime and to run in somebody—the real criminal of course for choice—and it seems hardly right to put them at this very critical moment into the position of a judicial authority deciding the most important point for or against the man they have arrested and believe to be guilty.
I have always wondered what legal right a policeman has to put you in a row with a lot of other men and bring people to look at you. Suppose a prisoner refused to undergo the ordeal and the policeman used force to compel him, could the prisoner recover damages for assault. These are recondite, and in a sense absurd points; but they do, I think, help one to see how wrong the present system is. At the ceremony of identification it is obviously necessary that there should be a presiding magistrate to see fair play and to take a record of what happened. It is really a part of the trial and a most important part of the trial. That a witness should identify a prisoner in a police yard in the absence of a judicial authority is clearly an unjust thing. Once he—or more especially she—has done so, the further swearing to the prisoner when he is in the dock isnothing. What the magistrate ought to see is the demeanour of the identifier when he first recognises the prisoner and especially ought a justice to be present to see that there is no suspicion of unfairness in the methods employed by the police.
We have had so many tragedies brought about by so-called identification, that it is more than time that the business of it was taken out of the hands of the police and made an integral part of the trial before the magistrate to which it in truth belongs. These reforms will not, I think, come about until we have stipendiary magistrates on the county benches, but though I wish to see this I do not want the old office of Justice of the Peace to be abolished. There is, and rightly ought to be, a keen desire among laymen to attain to this position, and it is an office of much dignity and respect and one in which a good man under sound legal advice can do worthy public service. I have been a local justice of the peace for many years and can testify to the number of occasions upon which a magistrate residing in his district is called upon for small services that would cost the applicant time and money if there was no available magistrate.
A great many lay benches with a clerk of sound learning and legal education administer excellent justice throughout the country. But there are classes of cases connected with property that would be better tried by a stipendiary unconnected with county society. I have a passion for old-world things, and grieve over the disappearance of the parish constables, the head boroughs, the tithing-men,the aletasters, the beadles, and the reeves. I do not wish to abolish the Justice of the Peace. I only wish to put him in his proper place. Of course, if he cannot be happy there, then I am afraid he will have to go.