THE CRIMINAL. LAW.
LETTER VL If there be one characteristic of the state of society in England which es- sentially distinguishes it from that of Continental nations, (and I speak from long and continuous personal experience,) it is that of the general interest which an Englishman takes in the law. hi foreign countries, the law is a tyrant, an enemy, at best a stranger. In Russia, it is but an engine of extortion and oppression, which none but a greenhorn thinks of appealing to. In Austria, it is .a treacherous, all-powerful master, which only grants itsprotection at the price of blind obedi- ence: and this, though with perhaps less of distrust in its good faith, is more or less the feeling throughout the whole of the Germanic states, including Prussia. In the Southern countries, again, such as Italy, Spain, Portugal, it is an enemy which the bolder gloi.y, the more 'timid delight in deceiving., thwarting,. subverting. In France, lastly, it is at best looked on as a useful auxiliary in matters of pm vete justice; as a wholly unscrupulous foe when any political question is raised. Men appeal to it when their own interests are affected; but they have no kind of sympathy with it; they take neither pride nor pleasure in its maintenance. The Idea of a private individual vindicating the law is one that never enters the mind of a Frenchman. It is not his business; it is that of the truculent-looking police- officer, of the spy ("mouchard " ) who for ought he knows may be watching him at every moment. Acts which with us are of daily occurrence—private individuals summoning omnibus-drivers or steam-boat proprietors for taking more passengers than the law allows—are there unheard of. I remember perfectly the astonishment which an Englishman created by complaining to the proper authorities of the un- lawful cutting down of trees in a public park. Some shrugged up their shoulders; others openly denounced him as an informer. And this indifference is not limited to those matters of public interest which seem to be nobody's business because they are everybody's; but it extends to the repression of private violence. In those nocturnal attacks by which so many persons lost their lives in the streets of Paris a few years ago, nothing was more rare than for the assailed party to meet with assistance from the passers-by. How could they tell but it might be some conspirator, arrested . by a " patrouille grise," or squad of disguised po- licemen ? In Italy, in Spain, this indifference might have merged into positive sympathy for the murderers. Traits of intelligent activity for the prevention of crime, such as the pursuit and stopping of Graham by Fisher the chimney- sweep, are inconceivable on the Continent. Nay, there are ten chances to one that until a policeman should come up, not the slightest relief would have been afforded to the wounded Blewitt. The instances might be reckoned by hundreds OD the Continent—by thousands perhaps, where the bystanders have either not cared or not dared to render any assistance to the victims of crime or accident until the proper authorities should be on the spot. This indifference to the laws is exhibited in a far more striking manner when any political disturbance takes place. In this case, (unless where the spirit of the people is completely cowed by espionage, as in Austria,) the public feeling, if not with the rioters, is at least seldom exhibited against them. Is there an instance in England of the public authorities ever having failed in finding special con- stables to swear in? Now, not only is such a practice for the most part unknown on the Continent, but it is well known that it is most difficult to prevail upon the townspeople to act against the rioters. In Spain, in Italy, the thing is not even thought of. In France, it was the military who quelled the revolt at Lyons. At Paris, when the National Guard is summoned to quell a riot, it is always found necessary to call in the sturdy, violent " paysans " of the " banlieue" Or submbs; thick-skulled fellows who bear an hereditary hatred to the city which they supply and which supports them, and who rejoice in keeping it under. And in proportion to the indifference of the townspeople are the bold- ness and enthusiasm of the insurgents. Do we not hear it constantly repeated, that an English mob is the most cowardly in the world? that half-a-dozen dragoons will disperse a crowd composed of hundreds? In France, on the con- trary, every grocer's boy is ready, on due occasion, to throw up a barricade before
, point his musket between two paving-stones, and face a whole company of . Every Ministry that wishes to be popular must grant an amnesty for political cos; whilst we have seen in this country a Government (strong for the time being in popular favour) backed by an overwhelming majority of the House of Commons in refusing to recall from transportation the only three political convicts which it had in durance, and those sentenced during the reign of its rivals. The fact is, every man in England is against rioting, " imetites" of any kind; and the man must be fit for Bedlam who can seriously expect at the present day to see a government overturned by a political insurrection; a matter, it not of constant oc- currence, yet still of constant probability throughout the Continent. . Now, let it be observed, that throughout all these countries, where the law meets with a support so lukewarm, with an opposition so unquailing, every pre- caution is seemingly taken to make the law all-powerful. In the French, in the Prussian, in the Austrian codes, resistance to the magistrate or to his officers, n o matter how illegally they act, is punished with imprisonment; and the remedy against any such illegality under the French code, which is the most liberal by far of the three, can only be obtained by permission of the Conseil d'Etat, itself a body of functionaries nominated by theCrown. In our own country, on the contrary, where the law is so well supported, its violation so utterly discountenanced, not one of these precautions has been taken. The right of open resistance to illegal warrants has been acknowledged from the earliest period; the right of appeal to the ordinary courts of law is equally well settled. Strange at first sight, that the stronger you try to make the bonds of the law, the more easily they snap; while the looser they seem to hang, the more strongly do they bind !
Now, the reason of this is to be found expressed in a short phrase of an old act of the 11th and 12th William III. c. 2, "An act for the further limitation of the Crown, and better securing the rights and liberties of the subject." It is there Stated—the repetition then even of an old-established principle—" And whereas the laws of England are the birthright of the people thereof." . . . . The birthright of the people—good friend Dryasdust, do you hear?—not of the sbirro, or of the sergent de ville, but of the people. As much the birthright of every one of us as the land we live in; things which are our own, in which we take an 'hereditary interest; which we have the right to defend against all men, whether the open burglar or thief, or the burglar or thief under colour of justice. But they are no longer our birthright if any policeman who believes himself duly autho- rized, (and, of course, an unscrupulous magistrate would always find officers of easy belief,) may treat me in my own house with the grossest violence, and I dare not resist even should he take me to prison—if I must trust to a habeas corpus for my release, to an expensive civil process, against a beggar perhaps, for my remedy; the evil infficted by the arrest amounting often, for a poor man, to total ruin. The observation of the Commissioners, that " in the generality of cases " the persons resisting officers "purposely intended to violate the law in a forcible manner," instead of proving in favour of their innovation, proves directly against it. What does it show That in the present state of the law officers do not ex- ceed their duty. And I will venture to say, and with the most heartfelt pride, that except perhaps in the Scandinavian kingdoms, there is no country in Europe
i where this is the case. There is no country in Europe where the police-officer Ix not a tyrant, if not worse, i.e. an actual instigator of rebellion. What an outcry is raised in this country by an occasional excess of authority, even when it has been most amply atoned for, as in the case of Mr. Toulmin Smith I—whilst in France, for instance, any one who should choose to take up the files of an Opposition paper for a year or two would find such instances by the dozen.
But to conclude. If in these countries in which implicit obedience'to officers is the rule of law, we find the officer overbearing or cowardly, hated or despised, the " sergent de ville," the " sbirro,") the public indifferent to the violation of the law, or opposed to its execution, and rebellion dignified with all the heroism of lawful warfare; whilst, on the contrary, in the only country where resistance to unlawful warrants or excess of authority is permitted, the police force is at once active and orderly, peaceable and brave, the public sympathy invariably enlisted on the side of the law, the rioter invariably vacillating and cowardly,—does not this afford at least a strong presumption against altering a constitutional principle so anc:ent, so rooted as it were in the law of England and the feelings of its people, that it never seems to have been questioned, whatever doubts may have arisen on parti- cular applications of it?
I repeat it, a modification which may fairly be introduced into the law, and which, by the Commissioners' own admission, meets almost every case of hard- ship,. is this: that the illegality in the frame of process, which the law already requires to be apparent, should be proved to have been apparent to the parties who. resisted its execution. We might also admit Article 8 of the present section, which makes it only extenuated homicide in the officer who kills another in the, bona fide execution of an illegal warrant. Even this, however, might lead to nu' chievons consequences, as the objections which might be taken to the frame of process are really so few that the officer might fairly be called upon to know them all beforehand; particularly with reference to the rule that " ignorance of the lavi excuseth no man," from which it seems absurd to make an exception in favour of the very persons intrusted with the execution of the law. I pass over Article 10, which makes it equally murder to oppose an unlawful arrest, where the party arrested is making no resistance, (the necessity for which, however, after Article 7, I do not perceive,) aS'also Articles 9 and 11, which refer to the subsequent section of " Justifiable Homicide." Article 12. " Homicide is extenuated where, upon a sudden quarrel, parties fight in heat of blood, and one of them is killed, if the killing be attributable to want of self-control caused by heat and passion." On which the Commissioners ob- serve—" This article is perhaps not absolutely necessary; but as the cases to which it applies are of frequent occurrence, and as the rule contained in the next article is important and has reference to it, we have thought it expedient tei retain it."
Article 13. "In such case it is immaterial which of the parties offered the first affront or made the first assault."
Article 14. " Homicide is extenuated whensoever the killing is wilful and not justifiable, but the act from which death results was done, or the act from the omission of which death results was omitted, at the request or with the consent of the party killed."
Article 15. " Provided that homicide shall not be extenuated within the mean- ing of-the last preceding article where the party killed is in a state of idiotcy, oris by reason of unnpeness or weakness of mind, or of any unsoundness, disease, or delusion of mind, or of passion, incapable of discerning the nature and conseL.•
quences of his consent; or where such consent is extorted by the party [fudge an extorted consent is no consent,] "or where the party killing has nat. sonable cause for believing that such consent is given in consequence of MM4 false impression in respect of facts on the part of the person killed at the time of his giving such consent." Notwithstanding Mr. Starkie's dissent, I think the alteration proposed by the last two articles is beneficial; agreeing with the Indian Law Commissioners, that " the soldier who at the entreaty of a wounded comrade puts that comrade out of pain, the friend who supplies laudanum to a person suffering the torment of a lingering disease, &c., ought not to be treated as assassins."
The section concludes with two other most important alterations relating to duelling.
Article 16. " Homicide is extenuated where, if two persons deliberately agree to fight, a contest ensues, and one of them is killed: provided that if such contest be with deadly weapons, the party killing shall incur the penalties of the se- cond class" (i. e. transportation for life, or for any term not less than seven years) Article 17. " Homicide is not extenuated in the case of any such contest as in the last preceding article is mentioned, where the death of the party killed is caused in consequence of any unfair advantage taken, or any unfair means used, by the party killing." That is to say, the penalty for killing in a fair duel is to be transportation; bat if unfair means be used, such killing is murder. I think the reasoning public, who know that the law which declares killing, in duel to be murder has never been followed by an execution, and that consequently it is in practice proved to be wholly inoperative, will hail with joy this alteration, although Mr. Starkie hie again dissented from it. The only faults I have to find with the Commissioners are the including under the head "Extenuated Homicide" an offence to which they have themselves affixed a different penalty, instead of forming a distinct sec- tion of "Duelling," which should include every act from the challenge to the fatal conflict; and the absence of all detail as to the practical effect of the various punishments inflicted for the offence under the different Continental codes, e. g. that of Austria, which inflicts no penalty beyond that of twenty years' some imprisonment. I have already had occasion to remark on the almost universe) absence from the Code of everything broader than a law-text, or a reason drawn mostly from our own law-writers or law-givers, such as the favourite Indian Law Commissioners. The subject of duelling is one really so extensive that a dozen pages of development, showing the various systems prevailing in other countries, their statistical results, and more especially the feeling of different via. doss on the subject, would hardly have been considered out of place. It is, per- haps, unfair, however, to complain of this meagreness of the premises in an in- stance where the conclusion come to meets with my entire concurrence.
A BARRISTER.
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