Page images

persons. Nor should the accused be without the best professional assistance which can be obtained for him. If he cannot pay for it, then it should be provided for him gratuitously, and of the best possible quality, by the generosity of the legal profession, or at the public expense. It is for the public interest that the innocent should be discharged as blameless, and that the guilty should be punished. I do not agree with the maxim that it is better that twenty guilty persons should escape than that one innocent person should be found guilty. But innocence is a just and natural presumption in all cases till guilt is proved. Except in crimes contra bonos mores, all criminal trials should be open to the public. In my opinion, the prosecutor and the accused should, before the trial, in all great crimes, communicate to each other the names, qualities, and residences of the witnesses to be respectively produced by each at the trial. We conduct our criminal trials, and even our civil actions, as if we were fighting a battle or a duel and should neither give nor receive advantage, as if success was everything and justice nothing.

I must now leave these general observations, and proceed to the discussion of crimes.

II.-CRIMES. Crime.The word crime is a word of a very flexible and extensive character. In a popular sense, it comprehends every offence against the laws, especially against the moral law, and more especially all atrocious offences against the moral law of a community.

But this word, in every civilised community, merely comprehends such offences as are supposed to be directed against the essential welfare of the State, or the great fundamental basis of Society, as regards the protection of person, property, and reputation. Do not rob; do not steal; do not murder; are rules which must be obeyed by all men, and at all times. Do not practice

witchcraft ; do not be a heretic, will be legitimate legal commands, or not so, in conformity to the civilisation of a country. Crime has often included very different classes of offences in different countries, and very different offences, at different periods, in the same country. Of all crimes, those against property are the largest; and of the offenders in this class, the largest number clearly show traces of ancestral traits of former generations. Against such offenders, Society has to be in a state of constant watchfulness, and it defends itself best and most effectually when this watchfulness prevents the perpetration of crimes of a class, or of crimes altogether. Society is always more or less threatened with destruction by evil doers; and its greatest object, for its own safety, is to increase the numbers of the well behaved and industrious, and to prevent, or mitigate, the evil consequences arising from evil wills and passions, and to direct the minds of the great mass of the people towards employment, education, and civility by industrial, intellectual, and moral training. If we wish to effect any changes in individuals, or in society, which is an aggregate of individuals—we must change their surrounding conditions, or circumstances. We must induce people to prefer another and a greater good for a present and less good, in other words, adopt a high ideal standard of life, before we can hope to influence their daily life and conduct.

Influence of Condition.—The laws, Civil and Criminal, depend on the actual circumstances of a people, in the arts and sciences, riches, religion, character, and habits. Thus, the laws of China would be wholly unfit for England, and their introduction into this country would naturally and properly create a Revolution; and yet they may be suitable enough, nay indispensable, for China. The laws of a country are the expression of the rights and duties of the citizens; and are


or less perfect as they realise the public happiness, which primarily consists in rights and wrongs being concisely, properly, and fully defined; and in freedom of person and industry, and of exchange at home and with foreigners, being protected; and in the right definition of the duties and rights of public officials, and in the submission of the people to the established laws. How far we are from the realisation of this state of things, I need not enlarge upon here. Some people wish to reorganise society on a new basis, and would deprive men and women of their liberty of individual action, and subordinate all individual initiative to State officials. I, for one, believe in no such reorganisation, which I look upon as the fantastic dream of a few enthusiasts aiming at a state of society impossible in this world. Even in the most perfect age which has been conceived by the most brilliant imagination of the most wise and unselfish philosophers, men will be subject to fires, shipwrecks, and all the weaknesses and accidents of human life, to the decrepitude of old age, and finally to death. Nay more, to all intents and purposes, generally speaking, they will also be subject to the evil passions and moral and physical shortcomings of life as it now exists, to jealousy and opposition of interests, and to consequent rivalries and unhappiness; and consequently their pleasures will always be accompanied with pains, and their joys with privations. The perfect good, the beau idéal of the Legislator, is not a chimera, but merely an ideal never reached. It embraces the whole sphere of the duties of mankind. It brings men into communion with God, and it points the way to a promised land, which may never be reached, but which may be approached by us nearer than ever by any before. Moses was never allowed to enter the Promised Land of Canaan; but, seeing it from the mountain summit, he was glad and rejoiced in his heart. If crimes were to become general, commerce would decline, distress and


poverty would become universal, and Society would be dissolved. Surely, Society is entitled to defend itself against such lamentable consequences. Aversion to labour is the cause of half of the vices of low life. This aversion should be removed by every encouragement which the State can adopt both as regards making the life of the great mass of the people cheerful and endurable, and regards the punishments which should be established to conquer this disposition. To make labour pleasant and agreeable, all should be entitled to enjoy the fruits of their labours. But where there is poverty, there will be theft; and where there is ignorance, there will be violence.

Certainty of Punishment most Important.—The most effective antidote to the commission of crimes is the certainty of punishment. This is most effectually secured by a vigilant magistracy, and a well disciplined force for the prevention and detection of crime. As the perpetual wars of neighbouring States are prevented by large and well disciplined armies, so internal disorders and breaches of the Criminal law will be effectually prevented by a well disciplined police force. The escape of an offender against the Criminal law should be reduced as nearly as possible to an impossibility ; and the prevention of the crime should be the main end of all Criminal legislation. The security of life, property and reputation is the greatest blessing which any Government can bestow on its subjects. But we must never forget that public opinion may nullify the best of laws, and may cause grave and serious crimes to be looked upon as no crimes at all, and that excellent measures of political, civil and criminal law may be opposed by a gross and ignorant people. What a deception, for example, often lies concealed in the much abused words, Equality and Liberty! Again, what a mass of lies has been concealed under the venerable names of Religion, Art, Science, and Literature !

In this Article I cannot discuss all the classes or kinds of crimes, and point out their natures, qualities and consequences; but I would here wish to draw the reader's attention to a grave Civil offence which is no longer a Criminal offence in England.

Adultery.—Adultery is the violation of conjugal fidelity promised by both spouses, committed by one or other, or both, of the spouses. It affords an excellent example of the progress of civilisation, and the action and re-action of public opinion and law. It involves families in grave and serious troubles. It concerns not only the parties themselves and their families, but the Public as well. It breaks up domestic life. It causes family duties to be neglected. It introduces doubt and suspicion where there should be faith and confidence. It inflicts grave suffering on one of the primary elements of society. Its prevalence is a clear evidence of the corruption of the social state; and its absence indicates a healthy condition of society. In ancient times, the woman was the slave of the husband; and the husband was the master and lord of the woman. Then, the women alone were bound to fidelity and love ; but the men were restrained by nothing. This idea of dominion has become less and less as society has advanced in civilisation, and it is being gradually eliminated from the legislation of every civilised country in Europe. No doubt it still exists here and there, and even in England; but the hour is fast approaching when Adultery, pure and simple, by a husband, will be as good a ground for divorce in England as it is now in the case of a woman. The end of Marriage, says Boresco, is to establish a perfect unity between a man and a woman, who contract with each other the obligations of fidelity, assistance and succour. Anyone, he says, who breaks any of these primary obligations breaks one of the fundamental conditions of the Marriage, and is responsible for the breach, and is liable to punishment.

« PreviousContinue »