LEGAL BARBARISM.
Ova Law and Police Courts this week have exhibited a few anoma- lous proceedings, which would surprise any one who expected to find sense in law, by the bare enumeration. One PATRICK LEITH STRAeRAR was held to bail to appear at the present sessions of the Central Criminal Court, in answer to a charge of the worst crime of which man can be guilty—a deliberate plot to betray youth to the lowest perdition : he was allowed to go at large, on giving security under, a penalty of 5001. and finding
two other sureties under a penalty of 501. each. The exaction of
bail is one of the most singular instances of fixed penalties : it is a fixed sentence pronounced in anticipation of an offence; and it is so worked, that to one class of persons, the poor, it acts as if the offence had been committed, while to the rich it secures immunity for a graver offence than the one contemplated by the penalty. The rich criminal has his bail estreated : as one is vaccinated to avoid the smallpox, he pays the fine to avoid transportation. The rationale of bail is, that the Court, not knowing the character of the prisoner, but not desiring to keep him, perhaps an innocent man, needlessly in prison before trial, seeks two others who will be sponsors for his reappearance, and whose faith in his word to reap- pear is so strong that they will put it to the test of a heavy condi- tional penalty on themselves. Generally speaking, no man would thus answer for another if absolute ruin were the penalty ; yet the bail exacted of poor men involves that consequence. Few would scruple to tell the " white lie " that they believe the rich man will return, if they know that he will nullify all consequences to them, by paying the penalty be it ever so heavy. The Court therefore, under the present practice, fails to test the faith of the bail and the probability of the criminal's return.
A lesser ruffian has been convicted of imputing to an innocent man a crime somewhat like that charged against STRACHAN, in order to extort money. The Judge sentenced him to transporta- tion, but afterwards found that the law did not authorize that punishment ; so he was sentenced to two years' imprisonment. The malefactor is a mere youth, and prone to all the vicious influ- ences of a prison. The law which the Judge, by analogy in the treatment of crime, thinks applicable to his case, is not extant ; and the Judge is obliged to put up with another out of the ill- assorted heap.
A Captain BELSTEAD was convicted of embezzlement and for- gery while in charge of a savings-bank at Richmond. It might have been supposed that to violate the sacred deposits of parsi- monious industry would excite the bitterest rancour against the delinquent : but it was quite the reverse ; there was an overflow of kindly feeling: prosecuting counsel suggested excuses; prosecutors took blame to themselves, apparently for leaving temptation in the way of a man of fifty or more, and pleaded for mercy ; the Judge all but apologized in passing sentence. Now Captain BELSTEAD may have merited all this kindly feeling, and more ; we would not hint one word to detract from the solace of an erring man who has such high testimonials to his excellent disposition : but it must be observed that other men often have excellent dispositions apart from their special crime ; and that in this case, the fault was not a single, unpremeditated impulse, but it was multifarious and con- tinued. A contrast, too, is very pertinently suggested by the Globe-
" Contrast this with a case which occurred in the same court a sessions or two previously. A collecting-clerk to a wholesale house pleaded guilty to two indictments charging him with embezzling certain small sums, received in the course of his duty as servant to the prosecutor. The man had previously borne agood character; yet was he sentenced—' as a warning to servants how they abuse the confidence placed in them by their employers '—to seven years' trans- portation on each indictment; a sentence which, by the regulations now en- forced in the Convict Colonies, is far more severe than fourteen years' trans- portation. But the convict in this case was a humble clerk. Had he had the good fortune to he a gentleman ' who had fought in his country's cause,' the punishment would have been apportioned by the considerate Court to his rank in society."
In Captain BELSTEAD'S case, one or other conclusion is in- evitable: either all parties conspired as much as they could to put the law in abeyance—to stretch it in favour of the prisoner—the Court aiding and abetting; or the law is of that kind that it ought not to be put in force. Indeed, the two conclusions are not incom- patible—both the law itself and its administration may be vicious. A person puts up in his window certain "blasphemous" placards ; documents which do not simply assert doctrines that he, perhaps, thinks sound, but convey horror to the minds of many, from their outraging the most sacred feelings, and disgust even to those who do not hold things exalted to be at the mercy of things base : it should seem that the law fails at once and directly to abate the nuisance : a young gentleman, the son of a Vice-Chancellor, goes forth upon a crusade against the blasphemous tract-seller, riotouslybreaks his window, commits a robbery of his property by seizing the objectionable paper within his house without warrant : the trades- man claims protection of a Magistrate against unauthorized aggression : the Magistrate requires the offender to do what he vo- lunteers to do—pay for the broken glass; expressly waives further penalty, and praises the law-breaker as a public benefactor ; hinting at a continuance of his rioting as a meritorious enterprise. For any thing that appears to the contrary, the young gentleman might, for four shillings a-day, break a pane daily in the book- seller's window and earn a panegyric from thejudgment-seat. Here both of the two conclusions mentioned in the former case are glaring: the law is defective; the administration of the law is cor rupted to that degree that the expounder of the law commends the breach of the law ! A Vice-Chancellor's son, a Magistrate, and divers newspaper-editors, have conspired to countenance further
breaches of the law. True, they say that the motive is cre- ditable : why, if men are to be justified in breakiug the law from good motives, the whole social system is dissolved. The theory of society is that individual convictions and wills are waived, and that a rule is adopted for the control and safeguard of all. Admit that the sway of individual will may be exerted independently of that settled rule, and you annul the compact. It is such a defiance of the compact which constitutes the offence of which the bookseller is accused. It was a similar motive that actuated those who led mobs to burn PRIESTLEY'S house at Birmingham, GUY FAWKES to blow up JAMES and his Parliament, CHARLES the Ninth to treat Protestants like partridges. If the law is to be set aside or evaded j whenever accused and judge happen to be of a mind as to its inex- pediency, it can no longer give safety.
Not a week passes but we have many instances, not always so flagrant as these, that our penal law, in all its branches, is a mass of mischievous confusion—unintelligible, inapplicable to its pur- pose, unrespected.
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