Imágenes de páginas
PDF
EPUB

chronicler of the operations in which he took part, his individual share in them has escaped the mention which it would doubtless have received from another pen. Moreover his military career was prematurely closed, and an opportunity was never afforded of testing his ability in the more arduous departments of his profession. He never held a high command, and his capacity for handling large bodies of men, and conducting the greater operations of war, must remain in some degree problematical. But he had applied his sagacious and comprehensive mind with great zeal to the study of military science; he had deeply pondered and commented upon the most celebrated campaigns of ancient and modern generals; he had been admitted to discuss with Wellington the plans and combinations of that great master: he had sketched out, with a singular concurrence of ideas, the scheme of those operations in India which his brother Charles had conducted with such marvellous results: and if any judgment can be safely formed from the principles and views which he has left on record in his writings, it seems not unreasonable to believe that, had circumstances permitted him to take the position of command to which his genius and ambition pointed, he would have exhibited in practice, what he so fully comprehended in theory, the skill, the judgment, and the manifold resources of a great commander. In the moral and physical attributes which qualify a man to lead and to gain a mastery over the minds of others, he was certainly preeminent. Such was he as a soldier; as a writer, it is enough to say, that in the special field of literature which he selected for himself, he stands almost without a rival. But, unless the light in which he is exhibited in the volumes before us is entirely distorted and fallacious, we may venture to say that there was in William Napier something yet greater and more admirable than either the prowess of the soldier or the genius of the historian, and that was- the character of the man. There was in him a large infusion of the heroic element, that nobleness of nature, that loftiness of thought and aim, which elevated him, notwithstanding his full human share of faults and imperfections, above the stature of common men. He walked in the light of a grand ideal, of which self-devotion, disinterestedness, loyalty, and truth were the leading outlines. England has need of such men; when she ceases to produce them, the star of her greatness will be on the wane. And as she owes them a large debt for their spirit-stirring example, she owes it likewise to their memories to guard their honour from corruption.'

6

ART. IV.-1. A general View of the Criminal Law of England. By JAMES FITZJAMES STEPHEN, M.A., of the Inner Temple, Barrister at Law, Recorder of Newark upon Trent.

1863.

2. First Report of her Majesty's Commissioners appointed to consider the Reform of the Judicial Procedure and Laws of India.

1856.

3. (24 & 25 Victoria, chaps. 94, 95, 96, 97, 98, 99, 100.) Acts for the Consolidation of the Criminal Law.

THE

HE work of Mr. Fitzjames Stephen on Criminal Law, the title of which we have prefixed to these observations, is, he informs us, intended neither for practical use nor for an introduction to professional study. Its object is to give an account of the general scope, tendency, and design of this important part of our institutions. The matter is scarcely cleared up by this announcement, for it seems quite clear that, either for practice or study, it is necessary to apprehend the scope, tendency, and design of the criminal law. The apparent difficulty, however, vanishes on inspection of the work itself. Mr. Stephen has formed many opinions as to the nature of the reforms required in the criminal law, and well knowing that he would have little chance of a hearing were he to embody his proposals in a single pamphlet, he has preferred to adopt the didactic in preference to the expository form, interspersing his explanations with such remedial suggestions as from time to time occur to him. The course he has taken seems to be a judicious one, and the result is a work which gives the fair and impartial view of a man of sense and learning on a subject well deserving the attention of Englishmen of every rank and condition.

Many things combine to draw attention at this particular time to the present state of our criminal law. A hideous exhibition of depravity and wickedness which attended the execution of the murderer Müller has made men doubt whether it is wise to retain the present plan of public executions, or whether more terror might not be inspired into evil-doers, less opportunity might be given for the exhibition of brazen hardihood on the part of the culprit, and much brutality and obscenity might be avoided, if the execution were conducted privately but attested by competent witnesses. Then there is the commission appointed to inquire into capital punishments which seems to announce a doubt on behalf of the advisers of the Crown,

whether death-punishment in any shape ought to be continued at all. If we turn to the subject of secondary punishment, we find matters involved in still greater uncertainty. The illadvised recommendation of the Royal Commission for the increase of transportation to Western Australia has, as was foreseen at the time, created such a ferment in the colonies, that it was withdrawn before it was acted on, and the victory has been so actively followed up, that the Government have announced their intention of applying to Parliament for powers to discontinue transportation to Western Australia altogether.

The remarkable and very unsatisfactory case of Dr. Smethurst, where the verdict of a jury was virtually set aside by the report of a medical man employed by the Home Secretary to investigate the case without having power to administer an oath, and without being examined on oath himself; the case of Jessie Maclachlan, where a prisoner who was, by her own confession, the principal in a murder in the first degree, received the pardon of the Crown; and the case of Townley, where the execution of the law was virtually set aside by the certificate of two Derbyshire magistrates, put in motion by the attorney for the defendant, have drawn much attention to the powers exercised by the Home Secretary, and raised a doubt in the minds of many persons whose opinions are entitled to great respect and consideration, whether the powers now vested in the Home Secretary should continue to remain in his hand, or whether some court of appeal should not be provided.

Thus the whole question of secondary punishment for the graver class of offences is once more reopened, and every man is at liberty to offer his views in opposition to a system in which those who direct it seem to have so little confidence. The digestion of the criminal law by the Acts of 1861, the recent introduction of a code of penal enactments into India, avowedly in place of English common law, tend to show that things can hardly be allowed to remain as they are; and yet notwithstanding all this flood of innovation, opinion, we believe, lies generally in the direction of leaving things alone, and not endangering the good we possess by any exaggerated zeal for reformation. To those who entertain any such conviction on the subject, we recommend Mr. Stephen's work as well calculated to raise intelligent doubt, and to prepare the mind for arriving at sound and beneficial conclusions. It will be our endeavour in what follows to suggest reasons why the criminal law, though so much and so deservedly praised, requires alteration and amendment, and to point out those reforms which we believe may safely be made without impair

ing the stability, and with great improvement to the symmetry, of this venerable fabric.

The argument against capital punishments derived from the presumed sanctity of human life and the absence of any right in society to deprive any of its members of that existence which it did not confer upon them, finds, as might be expected, little favour. In this hard and practical age, people have found that the metaphysical assumptions which met so much favour thirty or forty years ago, are very fallible guides in the affairs of human life. Nor are we now much pressed by the assertion that it is the duty of Government to set a good example to their people, and encourage them to respect human life by showing respect for it themselves. The answer of the French philosopher is as true as it is witty; the whole thing is nothing but a question of priority. Who is to begin-the Government or the murderer: Abolissons la peine de mort, 'mais que messieurs les assassins commencent.' Let the murderer abolish the pain of death, and Government will be most happy to follow his example. But we have no similar security on his behalf.

The arguments which are principally pressed are, that the object of punishment is either to reform or to deter; that in the case of death-punishment reformation is of course out of the question, while it is broadly denied that death-punishment has any deterring efficacy. The argument is an abstract one, and it is as old as Thucydides. It is to be found in the memorable speech of Diodotus on behalf of the Mitylenians, and deserves quoting at length, as being, as far as we are aware, the first remonstrance of humanity and good sense against the indiscriminate use of the punishment of death.

In the cities,' he says, 'the punishment of death is propounded for many faults even less than the one we are considering, yet still men carried away by hope run the risk; and no one yet advanced to danger having convinced himself in his own mind that he would not prevail. It is the nature of all men to err both in private and public matters, and there is no law that will prevent them from this, since men have gone through all punishments, adding and adding that they might be less injured by the evil-disposed, and it is probable that originally more gentle punishments were imposed for the greatest offences, but these being transgressed in course of time, the greater number are raised to death, and this law is still transgressed. Either then you must find a more dreadful terror than this, or this at least in no degree restrains; but poverty giving boldness to the needy, and opportunity suggesting covetousness to insolence and pride, and other external circumstances giving similar incentives to the disposition of men, as each is ruled by some incurable master-passion, lead them

forth to danger. And hope and desire, in every case desire leading and hope following, desire devising the plot and hope suggesting the facility of its execution, do most evil, and, unseen as they are, prove stronger than the dangers that are seen.'

Another argument is the one from familiarity and compassion, stated by Sir Edward Coke in his Fourth Institute:

'True it is, we have found from useful experience that it is not frequent and often punishment that doth prevent like offences. Those offences that are often committed are often punished, for the frequency of the punishment makes it so familiar that it is not feared. For example, what a lamentable case it is to see so many Christian men and women strangled on that accursed tree the gallows, insomuch as if in a large field a man might see altogether all the Christians that but in one year in England come to that untimely and ignominious death, if there were any spark of grace or charity in him, it would make his heart to bleed for pity and compassion.'

Another argument much insisted on is that the dislike that is felt in many quarters to the punishment of death causes juries to fail in their duty in dealing with capital cases; so that the severity of the punishment when inflicted is in this view more than counteracted by the difficulties which that very severity puts in the way of obtaining any punishment at all.

The first remark we have to make on this controversy is, that the assertion so constantly made, that the two ends of punishment are to deter or to reform, is a very incomplete account of the matter, since it omits an office perhaps as valuable as either of the others--that of preventing further crime. Every criminal is a heavy incubus on the public, and gains his subsistence in the manner most wasteful and most injurious to their resources. The thief receives a very small portion of the property which he takes away; the man of violence inflicts misery infinitely greater than the satisfaction he derives; the criminal's business is carried on at a frightful waste of human property and human well-being. During the time when a criminal is kept under restraint society is a gainer by the whole amount of the misery he would have caused had he been at large, and by the difference between the expense of his maintenance in prison and the tax that he would levy on society by wasteful and reckless depredation. If these considerations are strong when applied to mere imprisonment, how much stronger must they be when applied to a species of punishment which relieves the community altogether from the cost and anxiety of maintaining and guarding the criminal, and puts it absolutely out of his power to do any further mischief to his fellow-creatures? It is a strong proof of the superficial, and what we may call pseudophilanthropical

« AnteriorContinuar »