M. CROSS AND THE PENGE CASE.
THE decision of the Home Secretary in the Ponge case will greatly increase the willingness of politicians to estab- lish a Court of Criminal Review. The first necessity of a free country is that its legal administration should be respected, awl it cannot be questioned that a decision like that announced by Mr. Cross tends,to diminish that respect. The three Staunton s and Alice Rhodes had .a most patient trial, on the charge of having murdered the wife of one of the prisoners, by means involving the most callous, deliberate, and long-protracted cruelty. SO' completely convinced was the Judge, previously reputed. to be an exceptionally able lawyer and keenly intelli- gent man of the world, of the guilt of the accused, that he used
in. passing sentence thesesevere words You have been found guilty by a jury of your connttymen of a crime so black and hideous; that' I believe all the records of crinseit would be
difficult to find its parallel. With a barbarity almost incredible; you plotted together to take by cruel torture the life, of a poor, innocent, outraged, and helpless woman ; and althoues you do not stand convicted of the crime of having murdered a helpless child, I cannot help being as satisfied within my own mind that you are as guilty of that crime as of the crime for which you have been tried, and that you contemplated and plotted and brought about its death." The prisoners had the benefit•of able counsel and of evidence much milder than some which subsequently transpired', yet the jury found a verdict of guilty, and the Judge, in a speech which seemed, as regards the men at least, to preclude mercy, sentenced. them all to death,. The case went up to the Home Office, and the Secretary' of State respites', all four. In other words, he decided that' Judge and jury were wrong, and that the prisoners had not been guilty of deliberate murder. If they were guilty, he could, not have respited the men, though he might the -women, who were recommended, and one of them strongly recom- mended, by the jury to mercy. As regards the men, however, there was no plea except their innocence of murder which' can have weighed with the Home Secretary for a moment. Murder may be of almost any degree, but this one, if murder at ally was' of the very highest,—eold, deliberate, accomplished for an evil purpose, and attended with torture. It is not, humanly speaking possible that any provocation given by the victim can h'ave. been subsequently revealed. Nor is it possible that the criminals can in any way have seriously "aided justice," a fre- quent though unacknowledged reason for a mitigation of sen- tence. Mr. Cross, finally, is no humanitarian, with a secret distrust of the right of society to inflict capital sentences, rather is he as Home Secretary, a man exceptionally stern. Ho must have satisfied himself that murder, premeditated murder, had 'net been committed,—that s, that the Judge when he used the lan- guage we have, quoted, and the jury when they gave their verdict, were alike in the wrong. His order, though nominally dealing only with the sentence, in effect quashes the decision of the tribunal, and proclaims to the world, with all the authority of the Government, that the premeditated murder affirmed by the Court to have been committed never was committed at all, We have no intention, at this stage of the proceedings; of attacking Mr. Cross's decision, for the claim to do so would bra simply ridiculous. He has the legal right and the moral obligation to review the sentence according to his judgment. and his conscience. The presumption that he had ground's for his action which completely satisfied him is prim& facie reasonable, and till he reveals them it is impossible to decide upon their adequacy: For anything the public knows, he may have proof before him that Harriet Staunton is alive and as well as anybody else, or that the prisoners are not the. persons they were supposed to be, or any other fact wideh, would reduce the trial from the beginning to an absurdity. What' we contend is not that he was wrong, which we have no more, means of proving than of proving that a particular acquittal ordered by the Inquisition was unorthodox, but that, rightfor, wrong, a decision of this kind, given in secret and unsupported by reasons, diminishes to a dangerous degree respect for thos administration of the Law. Those who believe the Staunton-Bs innocent say everywhere how right they were, how oppressive,' Mr. Justice Hawkins was, and how little the decision of juries' in heavy cases can be trusted. The "moment an impartial, mind looked into the evidence, the decision of the ,Courtswass overturned." In the next trial, the wrong-hoadedness of !this Court will, by such men, be postulated from the first. Those; again—a very great majority, as anybody who will look into the country papers willsee—who thought the, Court in the right, and the prisoners—the men, that is, —unusually deserving of ,death, will say that justice has been defeated by the clamour of the half-instructed mob who, have showered letters upon the newspapers and the Home. Cake, and the annoyance of a profession which fancied its art and nsyss tory disregarded by the Court. And the few who, like ourselves suspend judgment in view of the possibility that Mr., Cross. had new facts before him, will say that justice which depots& on the acumen of one man not selected to be a Judge, changed as it were at random, and compelled, by political habit; to pay deference to public opinion, is not a justice which can-long, continue to inspire respect. The general effect will be asdiss trust which, besides weakening the confidence of the publiissins the Courts—an immense evil of itself—will sooner or later be fatal to the maintenance of capital, punishment, except.when inflicted by assassins upon their victims,—a loss most dangerous to the moral fibre of a community which still sanctions war, The remedy, as it appears to us, and-the only remedy; is t6. transfer part of the power now exercised by the Home Secre- tary to a regular Tribunal, composed of three Judges, which should, in all cases where serious punishment is to be inflicted, say, all cases inVolving execution, or penal servitude for more than fourteen years, review the proceedings as of course, and state its reasons for approval or dissent. The suggestion for the establishment of a Court of Criminal Appeal is often so vaguely made, that we will state precisely what course it is that we suggest. We would have every serious sentence, or if that be too much, every capital sentence, sent up, with the notes of evidence, the Judge's notes, the arguments of counsel, and all material documents, to a Court of Review, a Court of the highest possible class, before whom, on the prisoner's demand, Counsel should be heard once. This Court should then deliver, through its President only, and as an undivided Court, a judg- ment reviewing the case, affirming or mitigating the sentence, or even increasing it, with the single reserve that it should make no sentence capital, if a less sentence had been previously decreed. This Court would not rehear the evidence, for in that case it would be a second Court of trial, and not a Court of re- view, but would have power to summon and examine from the Bench, and not through Counsel, any experts or other witnesses it saw fit to summon, upon any points still requiring, in its judg- ment, to be cleared up. Its decision would then be final, except in the single event that the Home Secretary saw reasons which would justify him before Parliament in granting a free pardon. The abolition of that power is, we frankly admit, nearly impossible and highly inexpedient. It would merely be transferred to the two Houses of Parliament. There are oases, frequent in charges of treason, and occasional even in cases of murder—witness the Annette Myers case—in which conviction must follow trial and sentence conviction, but in which punishment would outrage the instinct of the whole people and destroy the very source of obedience to the Law,— namely, the conviction that its results are on the whole, and allowing for human infirmities, in accordance with the con- sensus of the good and wise of the period in which the law is operating. There are cases, too—as Barber's case—where the innocence of a presumed criminal has been proved years after condemnation. And there are other cases, again—for . example, merely to give an extreme instance, thepossibility of foreign intervention in favour of a particular criminal — in which it would be a high political folly to reduce Government to impotence or compel it to wink at an escape, by abolishing so ancient and, on the whole, popular a prerogative. But except as a power to be studiously held in reserve, and to be used only in extreme cases—in cases, that is, in which the alternative would be an application to Parliament—we would transfer the power of the Home Office to a tribunal sitting in public, though of course with the usual right of closing its doors, and obliged to deliver reasons for its judgment. The single evil we can see in such a system, which is in essentials at work not only on the Continent, but in India, is a certain amount of delay in serious criminal trials ; but this -delay need not be greater than that which now occurs through the informal appeal to the Home Secretary, and is not found in other countries to injure the respect felt for the law, while it would greatly increase that respect upon one cardinal point. The English system leaves a little too much to the temperament of the individual Judge, and crimes considered of the first magnitude in Liverpool may in Surrey be treated as comparatively minor offences. One Judge is carried away by sympathetic indignation, while another speaks as if he believed that criminals were natural products, to be kept down as gardeners keep down weeds. A Court of Revision created ad hoc, and manned without the usual contemptible effort to save twopence-halfpenny at the cost of respect for Law, would in a very few years establish a tradition of punishment from which Judges would, except for definite reasons stated in delivering sentence, be most unwilling to depart, and would create that impression of certainty and in- exorableness which, far more than spasmodic severity, tends to keep down crime. The Judges would feel themselves responsi- ble to superior Judges, and not, as at present, to the news- papers, and to the well-meaning, kindly-natured, but often very foolish mob of correspondents who now represent "public opinion" to the Home Secretary and his aides.
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