SIR JAMES STEPHEN'S HISTORY OF THE . CRIMINAL LAW OF
ENGLAND.* [FIRST NOTICE.]
"THE law of England, or even the criminal law, as a whole, can scarcely be said to have a history. There is no such series of continuous connected changes in the whole system as the use of the word 'history' implies." In these sentences, Sir James Stephen does great injustice to the topic of his work ; he does even greater injustice to his own highly interesting book. Our author's own pages are the complete confutation of his own doctrine, and supply the best answer to his own depre- ciation of the result of his labours. The History of the Criminal Law in England establishes past a doubt both that criminal law exhibits a process of historical growth, and that the pro- blems of English history will never be thoroughly solved until historians have followed the example of Professor Stubbs, and have with him realised the fact that the political, the constitu- tional, the moral, and the religious phases of English life receive constant explanation and illustration from the annals of the Law Courts. The History of the Criminal Law in England further proves that its author has, whether he admits the fact or not, made a most valuable and serious contribution to our knowledge of English history. The book, it is true, is not purely, we might say not mainly, historical. Legal polemics fill a good part of its pages, and, the logical training and con- troversial habits of the writer affect, and at times perplex the flow of his narrative. But though this be true, and though Sir James Stephen's controversial disquisitions deserve separate attention and criticism, the best service which a critic can render to his readers is to direct attention to the histori- cal side of the learned Judge's work, and show from Sir James Stephen's own pages what singular light the study of the criminal law sheds on more than one dark place of legal or general history.
Nothing, for example, is a more perplexing problem than how to account for the gradual change which took place in the posi- tion and character of the Jury. Modern ideas of justice involve the careful separation of the duties of the witnesses from the functions of the Judge ; it is, however, plain that jurymen have gradually been transformed from witnesses into judges of fact. How has this transformation (which is not the effect of any sudden revolution) taken place ? Sir James Stephen, if he does not give a complete answer to this question, assuredly supplies facts which contribute greatly towards its solution, The jury, he points out, not only gave, but took evid- ence ; the jury also often gave, in earlier times, what we should now call special verdicts ; they determined, that is to say, particular facts on their own knowledge, or on the information they could collect. Hence the distinction between juror and judge was far less clearly marked than it appears to modern observers. Sir James Stephen, however, gives us on this point something of much more worth than inferences based on general considerations. He adduces two most striking in- stances of the mode in which the functions of the Jury-box and the Bench have been found in combination during modern times. On April 30th, 1650, thieves were legally tried, found guilty, condemned to death, and, it would appear, executed by a court consisting of sixteen jurors, who performed the parts of witnesses,
A History of the Criminal Lem of England. By Sir Jams Fitzjemes Stephen, X.0.8.I., D.C.L., a Judge of the High Court of Justice, Queen's Bench DiViEl02. London : Macmillan and Co. jurymen, and judges. This was done under the custom of Halifax, and we have here an undoubted survival of what was. once a normal mode of trial. If any critic should (most gratuit- ously) decline to trust the tract called "Halifax and its Gibbet Law," the sceptic may be referred to transactions passing before our own eyes, but which, like other such facts, we most of us never notice. In the Court of the Liberty of the Savoy, proceedings even now take place " which will help us to realise the nature of the ancient trial by jury, and to understand how they dispensed with witnesses." The court consists of the steward and eight burgesses, two from each of the four wards of the manor. Any inhabitant who thinks a neighbour's house disorderly complains to the foreman of the jury for the time being, the jury satisfy themselves in any way they please as to the matter complained of. They give notice to the party in fault, and if the nuisance is not abatel they em- body their complaint in the form of a presentment, which is given in on court-day to the steward. If the presentment is in proper form, and the jury think the offender should be fined, four of the jury settle the fine. The finding of the jury is con- clusive. They "hear no evidence, examine no witnesses, and go through nothing in the nature of a trial. The leet jury thus represents that stage in the history [of trial by jury] at which ordeal and purgation had fallen-into disuse, and the sub- stitute for them had not been discovered." Within a hundred . yards of the Spectator office, justice, that is to say, is still administered after .a method which was antiquated in the days of Edward I. A more instructive and impressive instance of an historical survival was never pointed out; even by a professed antiquarian, and every philosophic student must feel grateful to Mr. Justice Stephen for having brought the existence of this survival into notice. One such fact is worth a hundred dis- quisitions. There is a certain ingratitude in complaining that a writer who has added to our knowledge has not done more for us than he has. But we must make some complaint that Sir James Stephen has not pressed his inquiries to a conclUsion. " It is not my intention," he writes, " to try to trace out in detail the history of trial by jury. The authorities already given show with sufficient clearness how it originated, but the steps by which the jury ceased to be witnesses, and became judges of the evidence given by others, cannot now be traced, without an amount of labour out of proportion to the value of
the result." The reason alleged for omitting to trace out the process by which the modern jury was created is more unsatis- factory than the omission itself ; the notion that the result of such an investigation would be without value betrays a certain indifference to research, which constitutes the main flaw in Sir James Stephen's treatment of history. He is, even when engaged in describing the growth of institutions, a good deal more of a lawyer, a logician, and a controversialist, than an historian.
This deficiency in the spirit of research is the main defect
in Sir James Stephen's historical work. Still, that the- annals of England should be looked at mainly from a legal point -of view is not without its gain, and as we have already intimated, nothing is more remarkable than the - way in which the details of criminal law illustrate, under Mr. Justice Stephen's- hands, the more general aspects of English history. To take one instance out of a• hundred, his account of crime, and the mode in which crime has been dealt with by the Courts and by the Legislature, throws new light, both directly and indirectly, on that most curious of topics, the astounding mixture of success and of failure which marked the Puritan Revolution. The criminal legislation of the Common- wealth gives us a new standard by which to measure the poli- tical capacity of the Puritan leaders. Measured as reformers of the law, the statesmen of Puritanism were infinitely in advance of their day. The Barebones Parliament is constantly talked of as an assembly of ignorant zealots. If you look at their scheme for reforming the criminal law, you see at once that they were- in many respects as enlightened a body of men as any Parlia- ment which has ever sat in England. The abolition of the peine forte et dare, the provision that prisoners should be en- titled to counsel, the total doing-away with benefit of clergy and the like are proposals anticipating modern reforms, and well worthy of a committee presided over by Hale. This is not the legislation of ignorance and fanaticism ; it may be the legisla- tion of revolutionists who are in too great a hurry to carry out rational improvements not yet sanctioned by the public opinion of the nation. The much-reviled Barebones Parliament
were, is short, if we look at their proposals for reform of the law, enlightened enthusiasts, who erred (if at all) not through ignorance or fanaticism, but from under-estimating the per- manent force of prejudice and conservatism. Mr. Justice Stephen is not an enthusiast or an admirer of enthusiasm,. but be has placed the legislation of so-called fanatics in a new and favourable light. But the direct information which Sir James Stephen gives his readers with regard to the criminal law of the Commonwealth is of far less import- ance than the conclusions which he indirectly suggests as to the causes both of the fall of the Monarchy, and of the failure on the part of the Puritans to establish the Commonwealth on permanent foundations. As an intelligent reader peruses the History of the Criminal Law, he is almost forced to the con- 'elusion that the main ground of popular hostility to the Monarchy of the Stuarts has been overlooked or greatly under- estimated. We had, we confess, never realised till we read Mr.
Stephen's work the extent to which not only the Star Chamber, but also all the Ecclesiastical Courts throughout the country, Interfered in the most delicate, the most private matters of domestic life. Profanity, heresy, drunkenness, defamation, immorality, matters many of which are now dealt with by no tribunal whatever, and some of which are, like libel, the ground of regular actions in the Courts of common law, were, in the sixteenth and seventeenth century, under the control of the Ecclesiastical Courts, and, to a great extent, of the clergy :-
"Such," writes S.r James Stephen, " were the old Ecclesiastical -Courts. I have tried to illustrate, as clearly as I could, the character of their jurisdiction, because I think it has a more important place in legal and general history than has usually been assigned to it. The only difficulty which is suggested in the present day by the account given of it, is to understand how people submitted to it so long as they did. It is difficult even to imagine a state of society in which, on the bare suggestion of some miserable domestic spy, any man or woman whatever might be convened before an archdeacon or his -surrogate, and put upon his or ber oath as to all the most private affairs of life,—as to relations between husband and wife, as to relations between either and any woman or man with whom the name of either might be associated by scandal, as to contracts to marry, as to idle words, as to personal habits, and in fact, as to anything whatever, -which happened to strike the ecclesiastical lawyer as immoral or drreligious."
This paragraph, and the whole chapter in which it is contained, ought to be read and re-read by any one who wishes to understand why, in 1640, the English nation was prepared for revolution. The discipline of the Church, which meant the interference of the clergy with the affairs of every household, had long been intolerable ; and the policy of Laud was to make the discipline of the Church—in other words, the power of the parsons—seen and felt as it never has been seen and felt before or since in England. From the time of the Reformation, the Crown, in taking over the authority, had incurred much of the odium which had at other times fallen upon the clergy. Men who cursed Land were not likely to be loyal to Charles. Religious enthusiasm, theological fanaticism, zeal for Protestantism, fer- vour for liberty, were all, no doubt, sentiments which influenced -Cromwell and his followers ; but if, as we may fairly suppose, Englishmen of the seventeenth century were in essentials very like their ancestors and their descendants, we may feel pretty sure that the mass of the nation were in 1640 far more anxious to be delivered from the burden of clerical domination, than to ensure the triumph of Calvinism or to found an enlightened Commonwealth.
In 1640, "Clericalism was the enemy " in England in a truer sense than it now is in France; the Monarchy was overthrown, because the monarch supported the domination of the clergy. By one of the strange, but perfectly comprehensible paradoxes of history, the cause which led to the fall of the Monarchy, namely, the hatred of clerical tyranny, was also in a certain sense a main cause of the failure of the Commonwealth. The role of the Saints was found nearly as intolerable as the rule of the Parsons. But this was not all. There is a general, but very mistaken idea that the Restoration restored everything which the Long Parliament had destroyed. In fact, the one thing which ordinary laymen cared to destroy was never restored at all. The Cavaliers who triumphed in the return of Charles II. had no more affection for the Star Chamber than had the most fanatical Republican among Cromwell's Ironsides. The Restora- tion brought many evils, but it did not bring back the hateful -clerical domination of Laud and his followers. As long, indeed, as the Stuarts were on the throne, there was always a risk that ecclesiastical tyranny might revive, in one form or another. The Revolution put an end to this peril, and
the nation was satisfied, and at rest. If, in short, the true cause, or rather one true cause, of the fall of the Monarchy under Charles was the insufferable tyranny of ecclesiastics and Ecclesiastical Courts, it is easy to understand why the majority of the nation suffered the Monarchy to be destroyed, and then, with no real inconsistency, welcomed a Restoration which did not restore that clerical domination which had brought hatred on the Monarchy; it is easy also to see how it happened that the Revolution of 1688, though it satisfied none of the Puritan ideals, thoroughly met the wishes of the English people. This, at any rate, is the reading of history forcibly suggested by Sir James Stephen's work. It is a reading well worth consideration, and it is only one among the many new interpretations of old facts suggested by a careful study of The History of the Criminal Law.