LORD BROUGHAM ON CRIMINAL PROCEDURE.
Ix some nations it has been the custom to place women and criminals on the same footing ; and to a certain extent it may be said to be the case with us at present. When, in those nations, a woman was condemned to be married, she was placed upon an open ground and allowed to run for it; and if the bridegroom could not overtake her, he was considered to be ex facto, a rejected suitor. Some tribes of North American Indians give their prisoners of war the same indulgence. And our customs still preserve for the criminal a very similar kind of privilege—it is what is popularly galled giving a fugitive "law." It is an expression which cuts many ways. The rights of the criminal are hedged around with many obstructions to his prompt arrest, trial, conviction, judgment, and chastisement. In the House of Peers on Friday last,* Lord Brougham surveyed the whole course of criminal procedure ; and the succession of steps taken by the law really constitute a curious path laid out and kept clear for the criminal. In London, we have a tolerable police force; though, by inattentive construction, we have added to it those "detectives" who assist at the operations of pickpockets. In many parts of the country, however, the con- stabulary is deficient; and it is not perfect even in large towns like Liverpool and Manchester. This is a great advantage for the criminal, who finds the less difficulty in dodging between the in- terstices of police vigilance. When the criminal is known, his prosesution is everybody's business, and therefore nobody's busi- ness; and Lord Brougham mentioned special instances of this general fact. In one case, a tradesman under temporary diffi- culties forged a bill for 25001.; a prosecutor was bound over, the Grand Jury found the bill, but then the prose- cutor was not to be found, and the criminal was released. In another ease, a baronet fired a pistol at a clergyman ; steps were taken to persuade the wounded pastor, he ab- stained from prosecuting, and the baronet escaped all trial. By way of compensation, however, occasionally an innocent person is thrown in as a criminal. Lord Brougham mentioned the case of a gentleman through whose estate a road ran; a -bailiff left a rope
• The Resolutions presented to the House of Pecrs by Lord Brougham on the 23d instant will be found at the end of our Parliamentary digest, page 330.
across the road ; in the dark a woman was tripped up, and her neck was broken ; the Grand Jury found a true bill for " murder " —and not against the bailiff, whose negligence had caused the acci- dent, but against his master, who had nothing to do with it! The twenty-three gentlemen who sit as a Grand Jury exercise a preli- minary judgment on the truth or untruth of a bill according to rules not laid down by logic or law; and the consequence is, that the owner of an estate in which a person is accidentally killed may be arraigned for murder, while another man overtly attempting mortal injury is not so much as put upon his trial. In Scotland there is a public prosecutor, from the Lord Advocate down to the Procurator-fiscal of every district; in England nothing of the kind ; and the consequence is illustrated in the statistics. In England and Wales, in the year 1853, there were 27,057 commit- ments, 25,585 persons were tried, 4800 acquitted ; in Scotland, there were 3756 commitments, 3139 persons tried, and 279 ac- quittals; the proportion of acquittals to trials being twice as large in England as in Scotland. The indulgence shown to criminals by the "law" given to them is compensated by extraordinary rigour to innocent prisoners. From the lapse of time between gaol-deli- veries in some English counties, as in Northamptonshire, a pri- soner has been detained from July in one year to March in the next, and then released without trial or upon acquittal. Perhaps, if the prisoner had committed some offence, he might have been sentenced to seven months' imprisonment: here, the same punish- ment was inflicted for not having committed the offence charged. No doubt, some of these obstructions and delays arise from old precautions to prevent injustice or harshness to the accused. When there was less publicity, when subordinates were under less respon- sibility, when magistrates were more tyrannical, executive officers more corrupt, and political motives more arbitrary, it was very desir- able to prevent haste, to secure some kind of escape for the prison- er, and to obstruct the executive in the sudden enforcement of the law. In those days, there was less order in the land; men went armed, and society supplied deficiencies in the vigorous execution of the law on its own responsibility. Every man defended him- self against aggressors ; but, whereas all combined against the notorious criminal and hunted him down, the orderly citizen who Was attacked found defence from the bystanders. Society kept its self-defence to a larger proportion in its own hands, and only delegated certain well-defined duties in the harsh and some- times oppressive officers of Government. In recent days, we have become more refined, even to tenderness. We lodge our criminals well, feed them better than our paupers or even our soldiers; study the neglects of their education; remove tempta- tions from their way, surround them with favourable circum- stances, place the means of industry before them, offer them the inducement to labour, and make freedom itself a premium to good conduct. But while we have thus reformed the treatment of our criminals as well as of our wives—while we have laid aside the pillory with the stick thumb-thick—we still keep up those forms of constable, jury, and prosecution, which are the fugitive criminal's "law." We still preserve to him chances of escape, when escape is no longer a blessing for him. Possibly, those who delay law- reforms may rely upon prison-improvements in rendering the gaol an attractive place, and may expect to find, what would indeed not be altogether unprecedented, prisoners themselves making applica- tion for admittance, and competing with their pressure at the gaol-door. Even then, it would be desirable to multiply our po- lice, though they were only to serve as authorized guides for the erring to the criminal's home ; and the culprit would then have some right to complain of those antiquated forms which delay him on the journey, not to his gaol but to his goal. There are, how- ever, two reasons for preserving these antiquities : one is, that the British legislators dislike to hurry themselves ; another, that in connexion with some of these-ancient forms there are such things as fees.
Lord Brougham made his statement on criminal procedure as a "testamentary " bequest to his country ; but we trust that this executing of his will is only a prudent forecasting of a distant day. When that day arrives, it will be well for his country if there be an heir to take the inheritance, and if his example survive him. At present Brougham is the only legislator who surveys the sub- ject of law and its improvement with all-comprehending grasp. We have Crown Lawyers, we have Cabinet Ministers connected with the law ; but they appear to take office only for the purpose of carrying on administrative duties, and do not seem to perceive that when they accept a seat in either House they add to the du- ties of lawyer or minister those of legislator. We have no Minis- ter of Justice : Lord Brougham, and he alone, attempts to perform the functions of that office.
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