AN ILLEGAL PURSUIT OF JUSTICE.
WE justly pride ourselves on the principles of our Criminal Juris- prudence, and not without ample reasons, for they have contri- buted equally to the punishment of guilt and the establishment of innocence. The action of the Criminal Law is now so well un- derstood by the whole community, that we can find its existence and operation recognized by the humblest members of our com- munity. But this result is produced by certain well-known landmarks of the law being invariably acted upon in its adminis- tration. First and foremost, we have the principle of publicity Pervading every department ; and we have every step taken by officers responsible to the Crown. We refuse to extract evidence from an accused person against himself. These three provisions of publicity, responsibility, and proof, have contributed to give our Criminal Justice a character which has rendered us the most 4ust1oe-loving people in Europe. Now and then, however, we get Into a state of dead-kick. In the Smethurst case, our judicial in- otatuttons_proved faulty ; and that case terminated after a public Inquiry' of five days, before a jury on oath, by a most unsatisfac- tory reference of the whole matter to the surgery of Sir Benjamin Brodie, The Home Secretary advised a pardon, and so set aside the deliberate finding of twelve sworn men. Smethurst's
I case ought to have produced not a supplementary scientific in- quiry, but an act of Parliament creating a tribunal for Criminal new trials. We do-not seek to quarrel with the result achieved; we only condemn the mode of its achievement.
Our magisterial institutions have got into a state of dead lock in the Road murder case, and Sir George Cornewall Lewis being appealed to, refuses-to issue a special commission to complete the inquiry. Sir George is so highly constitutional that we can quite understand his position when he stated' ." that he would not be justified in advising her Majesty to create an exceptional and ex- traordinary tribunal for the purpose of interrogating persons ens- spected of the murder." But if the local magistracy from pare lack of experience, certainly not from any want of zeal, are in- competent to conduct an inquiry of this solemn and complex cha- racter, surely the Home Secretary may find constitutional means in ail of the magistracy. Miss Constance Kent was only dis- charged on her father's bail from the charge made against her. We do not for a moment suggest, that the young lady whom over zeal placed in the dock, is at all cognizant of her brother's death. But her mere discharge on bail gives the magistracy a locus standi, upon which to resume the inquiry. Then the Homo Secretary might add the assistance of the local Recorders or some eminent criminal lawyers as assessors to the magistrates. But the refu- sal, on mere "constitutional" grounds, to issue a special commis- sion, has been followed by a most extraordinary innovation upon the administration of the law. Sir George Lewis gets rid of the difficulty by a side wind, for it appears now that, although he refuses to initiate any proceeding, he yet sanctions another course taken by the local magistrates utterly subversive of every principle of justice.
Mr. Slack, a very eminent solicitor of Bath, and of great repu- tation as a lawyer in criminal cases, is instructed by " the autho- rities" to prosecute an inquiry. To his private office are sum- moned the persons supposed to be able to give evidence. Mr. Kent's own solicitor very properly asks under whose " instrue- tions " Mr. Slack is proceeding. To this a reply is given very remotely referring to "the authorities" as setting on foot the inquiry. But is a private inquiry, conducted with closed doors, not upon oath, with the admissions of the guilty person, as- suming his attendance, taken down in writing for future use, a constitutional proceeding ? If we are agreed upon one course of criminal procedure, it certainly is that every inquiry by which the life of a fellow-creature is put in peril, shall be conducted in a public form. In fact the magistrates have become prosecutors, and employ an attorney to conduct an inquiry, superseding the natural right of Mr. Kent, as the father of the victim, to the position of prosecutor. An inquiry so conducted could lead only to " a lame and, impotent conclusion ; " and it appears in the form of a struggle of merely professional etiquette between the two solicitors ; Mr. Dunn offering that Mr. Slack may come to Mr. Kent's house and ask every one there upon the matter, whilst the magistrates and their solicitor ask for the attendance of the family at Mr. Slack's office in Bath. It matters little to the pub- lic which way the interview is achieved; it matters more for us to note how insidiously a false and pernicious principle of action is thus permitted to creep into the administration of our criminal law.
Publicity, responsibility, and proof, are all then here set aside. The inquiry is secret; Mr. Slack is not responsible; and the in- formation he may obtain is not evidence, because it is not upon oath. The Road case may indicate the necessity of a public pro- secutor; and, perhaps Mr. Slack is the most competent person for that office in his own county. But the office of a public prosecu-
tor, as in Scotland, carries with it notice of the object of the official inquiries, and a criminal is forewarned. Our institu- tional functions in the magistracy and the police may re- quire enlargement, but it would be much better that the murder of a child should pass unavenged than that the law, which we all agree upon as a rule of action, investigation, and penal correction, should be violated. The sound principles 'of
publicity, responsibility and proof have given birth to the ad- vantage of impartial adminstration by which equally the cruelty of prosecutors, and the tyranny of the mob have been set at de- fiance. To invade the common sense of mankind as to what is law ; to confuse the functions, public and private, of magistrates, policemen and attorneys, is to shake law to the very foundation in
the popular conception. If the murderer is to be found, the very
information which will lead us to his trail, is to be had by and before the magistrates in public, in an inquiry conducted by Mr. Slack in his professional character. The load murder has
been from first to last productive of blunders ; but the last is the most fatal, for even the detection and punish-
ment of the murderer would not compensate us for the loss we sustain by the unconstitutional means employed. We are more anxious to secure the sacred principles, ascertained by common consent to be law, from profanity than to see society led away by an immediate feeling of revenge. We may secure the punishment of one murderer, but we may do it at a frightful cost in the de- struction of the present security of life and liberty. Private information, gathered in this mjudicial manner, is likely to gratify the acuteness of clever practitioners and sharp detectives,
but society looks for the independent evidence of guilt to be forth- coming, plus extorted admissions or unwary statements. If we abolish or narrow publicity in our jurisprudence, we shall do much to destroy the entire fabric, which has brought down to us as much of glory as our deeds of arms. J
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