THE REPRESSION OF CREME.
THE Liverpool Daily Post does not quite understand our position with respect to the repression of crimes of violence, so frequent in that town, and indeed throughout the North, and as its error involves the whole argument now raging, it may be important to correct it. Our proposition is that certainty of punishment, and of the punishment fixed by law, is the moat important condition of the effective repres- sion of crime. To this the Post rejoins that if so, which it does not deny, the Home Secretary erred in not execut-
ing Campbell, the third man condemned to death for the murder of Richard Morgan, and suggests that we had forgotten that detail of the case when we quoted it as an instance of the needful inflexibility of justice. We had not forgotten it at all, having in a previous article carefully noted the three sentences ; but we hold that certainty being of the first importance, Mr. Cross was, on a full consideration of all the circumstances, right in not order- ing an execution which might have greatly increased over all
England the uncertainty of punishment for such offences. The Post forgets that in this country, in order to secure certainty, it is essential not only that the Law should be clear, which it
already is, and the Judges firm, which they show every dis- position to be, and the Home Secretary nearly inexorable, about which evidence is imperfect, but that Juries should be resolved to do their duty, and that there are circumstances under which this datum cannot be invariably assumed. Jurors, for the most part, are very faithful to their oaths, but they will not always, and under all circumstances, help to execute the law. Their resistance years ago made the frightful law against sheep-stealing ineffectual, and their resistance even now paralyses the efforts of society to put
down infanticide. They do not think infanticide worthy of death, and they will not say it is. If infanticide were made a crime per se, and not classed with ordinary murder, juries
would give their verdicts, as they do now on the lesser charge of concealment of birth, without hesitation or evasions. Now,
Campbell had been recommended to mercy, we know not on what ground, but still on ground which commended itself to men who had just condemned his associates, and were there- fore not acting from any sentimental impulse, but were primel fade trustworthy and firm. There was no ground for be- lieving them either crotchetty or weak. Had Mr. Cross, therefore, disregarded their recommendation, the impression of every juryman in England would have been that he could only by his verdict acquit or condemn to death, whatever the ex- tenuating circumstances, and the per-centage of acquittals might, as in the instance of infanticides, have increased so perceptibly as to deprive the law of half its terror. There would have been uncertainty as to verdicts, instead of as to respites. This journal has never been able to see the force of the arguments against the penalty of death for murder— though Calvinists ought to think them unanswerable—but death is nearly useless as a deterrent if it is not a sort of in- evitable consequence of crime. Men risk it constantly on the slightest provocation, though scarcely any temptation will in- duce them to face its certainty. There are cases, no doubt, in which a jury's recommendation ought to be set aside as the result of crotchettiness, or prejudice, or weakness of judgment, but the cases to choose are clearly not those in which the jurors have just manifested past all doubt their fidelity to their oaths. If law is to be effective in this country, it must be supported by average jurymen as well as judges.*
It is this doubt about certainty which renders it so needful that any extension of the use of the " cat," now so warmly discussed in newspapers, should be thoroughly debated in Parlia- ment before it is allowed. With the popular objections to the use of that means of coercion we have, as we have often said, no sympathy whatever. Violent ruffianism deserves physical pain, and if physical pain will repress violent ruffianism, it may have to be employed. Flogging has been abolished, most wisely, in the Army, because the dread of it kept away recruits, and because discipline of itself should never degrade, but the Provost-Marshal who on service flogged soldiers for plundering would have the full approval of the community. But the argu- ment that flogging will not succeed in securing the end desired is a very different matter, and it is clear, from recent discussions, that this point has not yet been considered enough. Lord Aberdare, with his curious felicity in appearing weak, made men laugh by asserting that flogging at school had had a bad effect on him ; whereas, if a ruffian could be turned by flogging into a Lord Aberdare, the highest end of punishment would have been obtained in an unhoped-for degree. But when the late Home Secretary stated that flogging for brutal assaults had been persistently tried before and had failed, and that garotting had been stopped, if it is stopped, by espionage, and not by whipping, his statements must be taken into full account. A Recorder who says that flogging is barbarous may be talking nonsense, but when he says that flogging is used in vain in countries like Russia, where violent crime is extremely common, and where the people are not worse than our Roughs, he is offering a fact of the highest moment. That a great divergence of opinion on the subject should exist among Chairmen of Quarter-Sessions may be a proof that they are not all equally able, but then it is also evidence of the risk of introducing uncertainty into a repressive law which must be entrusted to their hands. All witnesses of all grades testify that it would be wrong, and indeed impossible, to entrust such a power to Magistrates; that it must be given even to Quarter-Sessions with great care, and that it is impossible to apply the punishment in all cases. We cannot flog women, for example, even when, as in some districts often happens, they use their clogs on each other as effectually as men do, or when they gouge out each other's eyes ; nor can we use it in cases where it would mean death by torture. The Judges and Chairmen and Recorders must have a discretion, and a discretion means, in the present conflict of opinion, an uncertainty very injurious to the terror it is intended to create. The case is the same with the wife-beaters. More protection is needed for women, and if no other protection is effectual, society may be driven to try this ; but the argument that wives will be less protected deserves a consideration which the argument from mere pity does not. It is clear that death would fail, because the wives would not prosecute, and many observers familiar with the violent classes say the lash will fail too, for the same reason. The wives will endure anything rather than inflict such a penalty for drunkenness. The whole subject requires thorough debate, and debate not among journalists, but among men who have long experience in the repression of crime, who know what penalty deters and what rouses defiance, what are the real difficulties with juries, and what are the arguments weighing on the minds of those who inflict sentences. The House of Commons, fortunately, is full of such men, and if they will for once debate the subject as such subjects used to be debated, before this nonsensical notion of saving the public time came in, the country—and that word includes the jurymen—will be twice as convinced, one way or the other, as it is now.
If we could only convince it that certainty of punishment is as important as any method of punishment, half the trouble would be over now. It is very difficult to read the discussions in the Liverpool Town Council without seeing that half the difficulty lies in watching, in arresting, and in obtaining evi- dence. The Watch Committee is very bitter in its attacks upon rhetorical reports, and no doubt order is kept in two-thirds of Liverpool very well, and by a very moderate force ; but it is impossible not to perceive that the force in the other third is inadequate, that the police is insuf- ficiently protected, and that the protection of witnesses is nearly illusory. If a punishment struck the inhabitants of the bad quarter as unjust or cruel, evidence could be obtained only from the police, and their numbers must therefore be increased. If that were done, and any unprovoked assault punished with six weeks' solitary and silent imprisonment—the most taming of all modern punishments—and assault with intent to kill made equivalent to killing, and actual killing invariably fol- lowed by execution, there would probably be no need for the lash, except in the case of hardened offenders or men on ticket-of-leave. Brutality is a passion, but it is not such a passion that a ruffian to indulge it would incur a certainty of tic following the indulgence, though he would run almost any conceivable risk of tic. That, however, is not our point this morning,—which is not to inquire whether flogging is or is not the best form of tic, but to ask that before we recede from a policy long tried, we should have a full discussion among experts, a discussion as full of facts and experience and knowledge as it should be free from heat and sentimentality. The first object of legislating for the repression of crime is, after all, that crime should be repressed.
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