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posed upon his subjects by the war, tend to strengthen the adherence of the nation to the sovereign, and to place in his hands whatever power Russia possesses to prolong or to terminate this contest. The greater the confidence of the nation in its ruler may be, the more imperative is his duty to rescue it from the effects of evil councils, of angry passions, of immoderate ambition, and of excessive pride. The autocratic authority of the Czars is strongest and most honourable when it is exerted to rescue the empire from great calamities; and the traditions of this extraordinary and uncontrolled power, from the earliest ages to the present day, now place it in the hands of Alexander II. to restore peace to the world.
Lord Brougham's Speech on Criminal Law Procedure. House of Lords, 23rd March, 1855.
AMONGST the penalties the nation is condemned to pay in the prosecution of a great European war, none are more injurious to the public interest than the consumption and absorption of time, energy, and intelligence on that all-devouring topic of political interest. It is impossible for those who, like ourselves, watch with undiminished anxiety and hope the progress of the great work of social improvement, not to look with some feelings of regret on the suspended projects and the unfinished labours which in peace still formed the objects of continual effort. Lord John Russell is summoned from his Reform Bills, his Education Bills, and the administration of the Colonies, to the Conference of Vienna. The House of Commons spends its days in Sebastopol Committees, and its nights in endless discussions on the military establishments of the country. Even the Speech from the Throne which opened the present Session prudently abstained from any promise or allusion referring to matters not within the range of the dominant passion of the hour. In our own humbler sphere we are aware of the difficulty of obtaining a hearing on many subjects which might in more tranquil times have won the public attention, and we shall confine ourselves to a very brief notice of the persevering efforts made by Lord Brougham to promote that reform of our criminal procedure to which he has already so materially contributed. Be the condition of the country what it may, richer or poorer, agitated or calm, in peace or in war, the same duties remain to be performed towards the poor, the ignorant, and the criminal classes of society; and of all the institutions of the
country, those which ought least to be affected by the blasts that sweep over the political horizon, are the institutions dedicated to the administration of justice.
Yet, in an age that has witnessed so many useful reforms, and so many ingenious experiments in the name of reform, defects still subsist in our Criminal Jurisprudence which are, in truth, the relics of the most unenlightened ages connected with abrogated laws and obsolete customs, and hardly to be found in the criminal procedure of any other nation in Europe. To use the powerful language of Lord Brougham,
If in this age of enterprise some traveller should fare forth in quest of information rather than adventures, should traverse the sea, penetrate into unexplored continents, and, discovering new regions and strange races, should return to make us partake of the gratification his curiosity had received; were he to tell of a people not barbarous but highly refined, and living under a system of well-elaborated Criminal Law, yet wholly without the means of effectually executing it having no regular plan for tracing offences, or tracking offenders-no security for their ever being brought to justiceleaving the law sometimes to execute itself, or at haphazard placing its enforcement in the hands of those most likely to abuse the office, or peradventure, not to perform it at all—that crime was so capriciously dealt with, that some acts of the greatest atrocity were not deemed fit objects of any punishment, while others of a light and trivial kind were severely visited that the love of liberty being a distinguishing characteristic of this singular people, and a horror of the bare possibility of suffering by the innocent, reconciling all to the constant escape of the guilty, there was yet exhibited at all times and in every place the spectacle of loss of liberty before guilt was proved that imprisonment for months was inflicted upon the guiltless-that the sufferings of the accused depended not upon the nature of the charge against them, but upon the part of the country in which they happened to live, or indeed to be arrested, and that the whole arrangements for detention and for trial were local and capricious, both as regarded the treatment of the offender and the description of persons who should accuse, and of those who should judge that in all the most important particulars everything was left to mere blind hazard and ever-varying caprice, surely, surely, this tale would at once be rejected with incredulous scorn, and the traveller ranked with Ferdinand Mendez Pinto as recounting things not only untrue but impossible, because no such nation as he had described could exist. Yet he had only given an account, and not an exaggerated account, of this country at this time. But this country cannot submit to continue in this state for any longer time. It is now just a quarter of a century since I related in the other House of Parliament the voyage of the same traveller, and his narrative was not without a useful result; it was the foundation and the origin of Local Judicature. On the close of the relation I pre
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sented the County Courts Bill, which, after some unfortunate delays, became the law of the land, and gave to England the inestimable benefits of cheap and speedy justice, but in civil suits alone. Let me indulge the hope that this new journey of the same traveller may be attended with the yet more valuable result of Local Criminal Judicature, the effectual execution of the Criminal Law, and the rescue of the community on the one hand from the escape of the guilty, and on the other from the suffering of the innocent."
To deal with these gross deficiencies in our social system, Lord Brougham divides the whole subject of Criminal Procedure into the four heads of Police, Prosecution, Trial, and Conviction, including under this last head the subject of Prison Discipline.
The first suggestions offered by the Resolutions moved in the House of Lords, and annexed to this speech, refer to the apprehension and commitment of offenders by local police establishments, under the direct superintendence and control of the Government, as far as possible in connexion with the local authorities, and acting under uniform rules as far as local circumstances permit. For this purpose Lord Brougham proposes that the appointment of a regular constabulary force should be obligatory upon the local authorities. He further recommends that stipendiary magistrates, like those now appointed in London and Middlesex, should be extended to other towns of considerable size, with the same powers of examination and commitment as those exercised by the magistrates of the Metropolitan district.
The next step in which our system is still deficient, is the appointment of an officer for the prosecution of offenders; and it would be easy to multiply examples of the frequent failure of justice by this cause alone, both by the vexation of the innocent and the impunity of the guilty.
I believe with the exception of America, if our kinsmen have carried over with them this fault in the English law, but certainly in no other country, is the criminal procedure left to shift for itself, its execution being everybody's business in theory, and so nobody's in fact. Rather than argue upon the evils that must inevitably ensue from the want of a Public Prosecutor, I will give some instances, and these by no means of rare occurrence, though those which I shall specify are more than ordinarily startling; I will give two of the guilty escaping; as many of the innocent being harassed in consequence, and altogether in consequence of this defect. In the first class, let me mention that a wealthy tradesman at Plymouth, under the pressure of a temporary difficulty forged a bill for a large sum, expecting, as such culprits generally do, that before it became due he should be able to retire it; he was disappointed, and arrested.
Some one was bound over to prosecute, that is, to give evidence; a true bill was found, indeed there was not the shadow of a doubt in the case; and the trial came on; but no witness appeared. A poor man in these circumstances would have been certainly convicted, and as the law then stood, hanged. The rich man paid the 2007. on the recognizance, kept the witness out of the way, and was acquitted for want of a prosecutor.-Again, a baronet in one of the Midland counties-worthy baronet I cannot term him-fired a loaded musket at a reverend gentleman with whom he had some quarrel arising from bad neighbourship. The intercession of friends, or the kindness of his own nature withheld him from appearing, and the wrongdoer, who had really committed a capital felony, escaped unscathed; for by some other error, the crime was laid as a misdemeanor, and he was not even imprisoned a day. He was safe until he should make another murderous assault.-But now see how also the innocent are harassed with imprisonment and prosecution. To say nothing of the case lately stated to your, Lordships, of the poor woman confined in Northampton Gaol for some months upon a charge of manslaughter found to be utterly groundless as soon as the bill was preferred, the same learned Judge (Mr. Baron Alderson) not long ago presided at the Central Criminal Court, when the Grand Jury brought in a bill for forgery of a will, a bill preferred by a disappointed legatee against the executor. There was an end of the case the instant the Judge saw the will, which the Grand Jury had never even desired to see when they put the party on his trial-But I recollect being Counsel, one of the last times I ever attended the Criminal Court, for a gentleman of great property and high respectability, a man of 10,000l. or 12,000l. a year, who stood in the dock, and was arraigned for wilful murder, because the Grand Jury sagaciously deemed him criminally accountable for the neglect of one of his bailiffs, who had thrown a rope across a road that was under repair, and forgot to put a lantern upon it, so that, unfortunately, a woman coming from market was thrown from her cart and broke her neck. The instant that Mr. Baron Wood heard the case opened, he directed an acquittal of course, and desired the officer of the Court to summon the Grand Jury into his presence. They were discharged; and his Lordship said, "I am extremely sorry for it; this is a most shameful case."
As matters now stand, the accident of the place in which a crime may be committed, or an offender taken, or even of the time of year of the offence, makes an enormous difference in the duration of imprisonment before trial. In London and Middlesex there are twelve Assizes and sixteen Sessions, and a Criminal Court every fortnight; a similar arrangement exists in Surrey. But why should so obvious a public duty be postponed in the rest of the kingdom, though it is performed in the Metropolitan counties with the necessary frequency? To meet this want, Lord Brougham proposes
That Assizes should be holden four times a year in each county, and Quarter Sessions so frequently and at such times relating
to the Assizes as that a Court of Criminal Jurisdiction shall sit once a fortnight in each county:
That to equalise the business, counties may be divided, and parts of different counties united for the purposes of trial, and that persons may be tried at the option of the Public Prosecutor, either in the district where the offence is alleged to have been committed, or in an adjoining district :
"That the same criminal jurisdiction should be given to Judges of the County Courts as is at present possessed by the Quarter Sessions of the Peace, that this jurisdiction should extend over the district subject to their civil jurisdiction, and that the justices of every county may be relieved from the obligation to hold sessions oftener than four times a year, whensoever it shall appear that beside those four sessions and the assizes there is sufficient number of County Court Criminal Sittings to give two Criminal Courts monthly in the district.'
We have recently entered so fully upon the subject of prison discipline, that we shall not follow Lord Brougham into that portion of his address, at the present moment: nor are we prepared to give an unqualified assent to his valuable suggestions in all their details. But the object of the noble and learned lord appears to have been to propound these resolutions for the consideration and discussion of Parliament. That discussion will probably be renewed soon after the Easter recess, and we trust the subject will obtain the ample consideration which it deserves. It is not, however, by the production of one or two partial measures of reform that the principal legal members of the Government can hope to remove those grievances or to satisfy the just expectations of the public. The whole state of our Criminal Procedure requires a searching and comprehensive revision; and the first step to the attainment of this object should be the creation of a Commission to inquire into the whole matter, and to frame the necessary measures for the consideration and approval of the Legislature.
Lord Brougham concluded his speech by a touching expression of the feeling of an old and faithful servant of his country, zealous of good works to the close of his career. He said that almost everything that one now does in this kind is of ' a testamentary nature, but that he deemed it his duty to bequeath these proposals to his brethren and his country before he shall have sunk into feeble, and unreasoning and narrative age.' We trust, however, that his own life may not be so short, nor the time employed in bringing these measures to maturity so long, as to deprive him of the satisfaction and the honour of accomplishing another important reform in the law of England, or to rob him of another claim to the gratitude of posterity.