These considerations suggest some observations on the principles on which our existing system is based, on their defects, on the remedies which are proposed or which would be efficient,—and lastly, on some important, though ill-understood, principles, which affect the whole subject of legal punishments.
It would require a minute and technical statement, unsuited to these pages, to show the manner in which the system of administering criminal justice now in force assumed its present form. It may, however, be asserted, though it would be tedious in this place to prove, that the changes which have taken place in it from the earliest times down to our own days have been mainly in the same direction. Its existing state is the result of a series of efforts more or less explicitly and consciously directed towards the establishment of a system of criminal justice resembling our system of civil justice in all its principal features, and even in a variety of minute technical details. In this country, though probably this country only, the result of the experience of nearly eight centuries has been to establish the principle that a criminal trial differs from a civil action principally in the character of the damages ultimately awarded. In the one case a man is tried for the sake of exacting from him his life or his liberty, as in the other case he is sued for the sake of exacting from him satisfaction for the breach of an obligation, or for the infliction of an injury. Some qualifications and explanations would be required to make this statement accurate, or rather, complete; but it is nevertheless substantially true, and its truth may be tested by any one who has an opportunity of watching the ordinary course of a criminal trial. One or two of the leading illustrations of this principle may be mentioned for the sake of clearness.
There is no public functionary whose duty it is to investigate charges and to obtain and arrange the evidence required to support them. The prosecutor is generally a private person, and has never, as such, any official authority. He employs his own attorney just as he would in a civil action, and he is practically the dominus litis. If the crime is a misdemeanor, he can compound it by his own authority; and if it is a felony, he can secure an acquittal by not appearing to prosecute. It is true, he would usually incur a penalty by doing so, but the penalty is one of a special nature. Non-appearance is not an offence in itself.
The trial is conducted exclusively by the counsel whom the prosecutor and prisoner select. They decide whether witnesses shall be called or not, and they are supposed to know what the witnesses will be prepared to prove. The judge has no communication with them before the trial, though he knows what they have said on former occasions.
Lastly, the prisoner is never questioned from first to last, probably in pursuance of the old and now exploded maxim, that a man cannot be a witness in his own cause, and he is thus better off than a defendant in a civil suit, who can not only be a witness at the trial, but may be compelled to answer interrogatories before it.
These illustrations of the character of our system of criminal justice are sufficient to show its general nature. They might be greatly extended, and their extension would show that the principle already stated applies not only to its leading features, but also to its minute details. It has far more consistency and regularity than the law which it administers. In criticising it, its defects should be borne in mind. There are four distinct operations involved in the general notion of the administration of criminal justice. The first is the definition of crime, and the apportionment of punishment. That is the province of the legislator. The second is the detection of crime. That, according to the practice of English law—for there never was any theory upon the subject—is the province of the injured party, his surviving friends, or any one else who likes to take the trouble. The third is the investigation of the charge, which is the function of courts of justice; and the last is the punishment of the offender, which is the function of the sheriff. It is thus absurd to quarrel with the law when a crime is not detected. The fault, if there is one at all, lies in the passion of the English people for personal freedom, and in their intolerance of personal restraint or interference for any purpose whatever. This is the real obstacle which has always prevented the appointment of any permanent officer with inquisitorial powers specially charged with the detection of offences; and so long as we choose to enjoy an exemption from the abuses to which the existence of such officials would or might lead, we must be content to pay the price in the form of the occasional impunity of offenders. One of the most curious results of the newspaper discussions on the Road murder has been the proof which they afford of the fact, that hardly any one appears to be aware of this. Indeed, from the tone of the discussion, it would seem as if no one had ever heard before of a murder going unpunished, yet there can be little doubt that a large majority of crimes of all sorts, murders included, are undetected. That it is so with other crimes there can be no sort of question. The author of an Article lately published in these pages on "Thieves and Thieving," was acquainted with a large number of professional criminals, and no doubt such a class exists, though possibly its importance in comparison with other sources of crime may be overrated. However this may be, the very existence of a professional criminal implies the frequency of undetected crime. A man who acquires great skill in house-breaking, or picking pockets, must have committed many thefts and burglaries before he is transported, and no doubt the case is the same with murders. A writer in the Saturday Review of September 22nd, who apparently speaks from personal knowledge, observes:—"It would be easy to give a long list of undetected murders which have happened within a short time, and a confined district, but which have been forgotten, because there was nothing particularly interesting about them. The following seven cases have occurred within a very few years, in four neighbouring counties:—A man was shot dead near Leicester; a gamekeeper was shot not long after near Coventry; a farmer was shot at Alfreton, in Derbyshire; an old man was beaten to death by robbers in the same neighbourhood; a man was stabbed at Spondon, near Derby; the body of a murdered man was found in the river at Lincoln, and a boy was killed in Nottingham forest. Yet no one was ever brought to trial for any one of these murders, which have all been committed within the last five or six years, except in one instance, in which no evidence was offered against the persons accused." It would be no difficult matter to extend this list. A man was, not long since, shot dead at Portsmouth, whose murderer was never detected. A gamekeeper was murdered in Lincolnshire, many years ago, almost in the presence of two witnesses, and to this day the guilty person has never been discovered. The curate of a populous village on the banks of the Thames lately buried, in the course of about two years, as many as nine bodies found in the river, and never inquired for. These people may have been murdered. There is nothing to show that they were not. We all know the little paragraphs which continually appear in the papers, in some such words as these:—"A body has been found in the Regent's Canal; from marks of violence which it presents, foul play is suspected." Such paragraphs never disturb our repose, or strike us as peculiar. We forget them as soon as we have read them; yet they may, and perhaps do, indicate murders as foul as those which set the whole nation in a state of excitement. Besides such cases as these, there can be no doubt that secret murders occur which escape not merely punishment but suspicion. From the nature of the case this must be, to a great extent, matter of conjecture. But there is as much evidence of it as can be expected. Palmer, in all probability, committed at least two murders which would never have been discovered if he had not committed a third. A man, named Bacon, was convicted of having attempted to poison his mother, three years after her death, in consequence of attention being attracted by his wife murdering their children. [This man was tried upon capital charges three times in one year—namely, at the Lincoln Summer Assizes in 1856, for burning his house to cheat an insurance office -, at the Old Bailey, in the spring of 1857, for the murder of his children; and at Lincoln Summer Assizes in 1857, for the murder of his mother.] It was stated at the time of Palmer's trial, that "suspicious cases" were known to occur at insurance offices, which means, in plain words, that the authorities of those offices occasionally have reason to suspect that the insured are murdered for the sake of their policies; and the rumour that there has been "foul play" about a particular death is one which most people hear occasionally, and which must sometimes represent a truth. Rush, for example, was always suspected of having murdered his father.
No doubt the belief in concealed crimes is opposed to popular prejudice embodied in the proverb, "Murder will out;" but the true application of that foolish remark, and of its still more foolish illustrations, is the very opposite of what it is usually supposed to be. Cases are usually quoted in support of it where some strange accident discovered the murderer—where the other half of the wad of a gun was found in his pocket—where the murdered man tore away part of the murderer's dress, and the bit fitted the hole — or where some one happened to pass along an unfrequented road or passage, and so came upon the track of the criminal. It is fortunate that such cases are not as common as the proverb assures them to be, and that the evidence against the murderer is almost always of the most prosaic kind, comprising direct proof of the motive, and either of the act itself, or of circumstances inseparably connected with it—such as the possession of property, the conduct of the criminal, his connection with the instrument of the crime, &c. If murderers were usually detected by strange accidents, it would follow that, in the absence of strange accidents, they would escape detection; and the true inference from the fact, that many murderers are only just caught, is, that many more must escape.
Persons who ought to be above such weakness often affect a certain respect for the prejudice, because they suppose it to be useful. Falsehood and superstition are always evils, and their specific mischief in this particular case is easily detected. The prevalence of such notions surrounds murder with a sort of romantic interest. It is looked upon as something which falls under the jurisdiction of special providences—a gloomy, awful, Byronic transaction, mysteriously committed, and miraculously avenged; whereas, in truth, it is usually a clumsy piece of bloody and stupid brutality, perpetrated by some wretched creature, who seldom rises even to any considerable degree of cunning, and whom it is difficult to detect, not because he has shown any particular skill, but because it is hard to find clear proof of secret transactions, and because the difficulty is greatly increased where it is no one's business to overcome it.
These considerations make it hard to look without some impatience on the excitement produced by the Road murder. When undetected crimes are so common, and are noticed so little, it seems rather contemptible to make so much disturbance about a particular crime, merely because its circumstances are dramatic. It is a melancholy, though it is by no means an uncommon thing, that a child should be murdered, and the strong probability that the murderer is one of a very limited number of persons gives great dramatic interest to the whole affair. The case is fairly entitled to notice as a judicial curiosity, but it is nothing more. The strangeness of the event does not increase its importance. The discovery of the criminal is no doubt important; but it is not more important than the discovery of the man who shot the farmer in Derbyshire, or the gamekeeper near Leicester. It can hardly be said to be more important than the investigation of the circumstances under which unknown bodies in the Thames find their way there. It is, therefore, impossible not to infer that what people really wish for is the key to a puzzle, and not the punishment of a crime.
As it appears to be the popular opinion that any one who can write a letter to a newspaper is qualified to take part, and the part taken is generally vague and clamorous in the extreme—in the administration of the criminal law, it is at least desirable that opportunities should be afforded to popular readers of knowing what price they must be prepared to pay for the gratification of their curiosity.
The circumstances of the Road murder are extremely curious, because they happen to afford an illustration of the amount of this price, so exact that if the crime had been committed on purpose it could hardly have been better arranged. The whole difficulty of the discovery of the criminal lies in the fact that according to our principles no one is obliged to criminate himself, and no one is allowed to force a suspected person to do so. If the murder had been committed in France there can be no doubt that it would have been in a certain sense discovered by this time. That is, the official persons employed in the investigation would have satisfied their own minds as to who the criminal was, and would in all probability have been in a position to get a French jury to say that they also were satisfied, subject probably to that amount of doubt which lurks under the cowardly reservation of "extenuating circumstances." That they would by any of the processes at their command have extracted evidence which would satisfy an English jury, is a very different proposition. The Road murder precisely raises the point whether the satisfaction of seeing somebody punished for a class of offences which at present escape punishment, and of hearing all the gossip upon the subject which practised skill, an unlimited command of public money, and public authority could collect, would make it worth while to introduce the French system of criminal justice. There is no middle course. We must be content with our own system, which fails to punish a considerable number of crimes at all, or we must adopt a system which, when a crime is committed, will usually find reasons more or less satisfactory for punishing somebody.
There is indeed a sort of middle course which many persons amongst us appear to be inclined to adopt. They are not willing to have juges d'instruction and procureurs de l’Empereur, armed with a discretionary power of solitary confinement and secret interrogation, but they think that the newspapers will do instead. They seem to think that judicial proof can be extracted from a general Babel of gossip, and that it is possible to find out who murdered Master Kent by producing loose suggestions—that four months after he was murdered a lady was seen to comb her hair in one of Mr. Kent's bedrooms. This desultory and idle curiosity, and the prurient longing which it gratifies of being mixed up, however remotely, with any notorious transaction, however disgusting, are amongst the most contemptible aspects of modern civilization. It may be the cause of wide-spread private misery. It is certain to degrade the administration of justice, and if by any accident it elicits material evidence it is almost certain to diminish its importance by the suspicion which it casts upon it. As for the private misery, it drains into one common cesspool, ostentatiously paraded and assiduously stirred, all the malignant gossip which had formerly putrefied in a comparatively innocuous manner in private receptacles. As for its effect on the administration of justice, let any one read the reports of trials at New York, in which the newspapers compliment the counsel on being "rising young men," and the counsel in open court "thank the Lord of Heaven" that the editor has so favourable an opinion of their prospects and their age. As for its effects on the value of evidence, let any one ask himself what weight he would attach to the statement of an old woman, that on a particular morning she saw a suspected person in a suspected place, at a suspicious hour, if she said so for the first time four months after the event, and after she had been assiduously manipulated by some gossiping Justice Shallow, who had first been put on the track by hearing from some one else that she had denied her own words.
Few reflecting persons who have watched the newspaper controversies about Smethurst's case or the Road murder, can have failed to make some such observations as these on their general character; but some amongst us may be disposed to think that the means of judicial investigation into crime which we at present possess are deficient, and require to be augmented. There is, no doubt, some degree of truth in the opinion that some improvements might be made, which, at a considerable expense, would prevent a few scandals. It is certainly wrong that private persons should, as is often the case, be put to great expense in bringing offenders to justice; and it is also a fair question whether the fees allowed to attorneys for prosecuting ordinary offenders are not so low as to deter respectable men from undertaking a disagreeable though important duty, and whether the scale upon which the expenses of witnesses are paid is not altogether insufficient. These and other matters of a more technical kind would hardly interest general readers; but the broad question whether our general principles of procedure are to be maintained, is one which interests, or ought to interest, us all. The practical working of a system which aims at greater stringency is very instructive. If we determine to aim at similar results we shall have to establish similar machinery.
There can be no doubt at all that the criminal law of France is far more severe, and in one sense more effective, than our own. It would be curious to compare the proportion which exists in the two countries between crimes and prosecutions, if the materials for such a comparison existed; but, however this may be, no one can study the Code Penal, and read the reports of the trials which it regulates, without seeing that it affords facilities for the investigation of any rumours or suspicions altogether unlike anything which we possess in this country, so that if the proportion of prosecutions to crimes is not greater in France than in England, it is not the fault of the law, but the result of other circumstances. Let it be assumed, however, in favour of the system (though it is by no means certain that the assumption is true), that the proportion not only of prosecutions, but of convictions to crimes, is higher in France than it is here, and let us inquire what is the price which is paid for that advantage.
The whole of France is divided into twenty-seven districts, in each of which there is a Cour Impériale, which forms the centre of the judicial organization of the district. Each Cour Impériale has a Procureur Général, who has deputies and substitutes. In each arrondissement there is a Juge d'Instruction, and in each Tribunal de Premiere Instance there is a Procureur de l’Empereur. Besides these judicial authorities, there are a number of inferior agents of police, such as the gendarmes, &c., and the whole body forms what the French call an "official hierarchy," that is to say, these and other officers stand in the relation of official superiors and inferiors. When a crime is committed they all co-operate in the investigation of the circumstances connected with it. Any suspected person is at once arrested, and if the magistrate pleases he can put him in solitary confinement (au secret), and he has the right of interrogating him as often as he likes. His great object is to work a confession out of him, and the first step towards this result is to call upon him to prove an alibi. His failure to do this in a satisfactory manner is considered as affording the strongest presumption of his guilt. "Il n'a pas pu justifier 1'emploi de son temps," is one of the commonest of the triumphant appeals which the judge and the public prosecutor are in the habit of addressing to the jury at the trial. As soon as the prisoner has given an account of where he was and what he did at the time in question, every one whom he mentions is sent for and examined in order to see whether or not his account is confirmed, and the prisoner is immediately re-examined for the purpose of explaining any inconsistency. This process is sometimes carried on for many months. The examinations multiply, and the interrogations are continued; the prisoner is cross-examined, re-examined, confronted, and browbeaten day after day, week after week, and month after month, till he either confesses or involves himself in inconsistencies and contradictions. When there are several suspected parties, the chances of conviction are greatly multiplied, for if any one of them is guilty, he usually confesses, both on his own account, and on the account of his supposed or real accomplices. These confessions, which with us would be considered as evidence only against the man who makes them, are regarded in France as the most important of all evidence against everyone mentioned in them; and as a criminal naturally knows all the details of the crime, and is thus sure to be corroborated in minute details by all inquiries about it, nothing is more easy for him than to destroy a perfectly innocent man by asserting that he was present on the occasion; and unless the other happens to be able to disprove the assertion he has no defence.
A case occurred in the neighbourhood of Lyons last summer which illustrates the character of the system more forcibly than any general observations. Three women—Mme. Desfarges, her daughter, and granddaughter named Gayet—were assassinated on the 14th of October, 1859, with circumstances of horrible brutality, at a village called St. Cyr. A man of the name of Joanon was suspected of the crime, partly on account of his general bad character, which was set before the jury in the most emphatic manner, and with the most disgusting and irrelevant detail, partly because he had wished to marry Madame Gayet, and partly because he was seen near the house about the time when the murder was committed. He was arrested, but shortly afterwards discharged, as the evidence against him seemed very trifling, even to a French magistrate. In February, 1860, a man called Chrétien sold two watches, which were part of the property of the Gayets, to a watchmaker at Lyons. He was arrested, and told a false story as to the manner in which he had obtained them. On searching his house, other articles belonging to the murdered women were found, and in the well of a man named Dechamps there was found, some time after, an axe, which, from various indications, was supposed to have been used in the murder, and of the presence of which in the well Dechamps' wife was, by her own admission, aware. These were the principal points in the evidence against the three men, apart from the statements which they made upon interrogation, and apart from certain expressions, one of which, attributed to Joanon, was certainly suspicious, if the absolute accuracy of the gendarme, who ingeniously entrapped him into making it, could be implicitly relied upon. After a certain amount of interrogation, Chrétien made a full confession, asserting that he had shared in the commission of the crime, which had been planned by Joanon, who, with the assistance of Dechamps, had committed the worst part of it. By constant interrogation, Joanon was brought to give several different accounts of the way in which he had employed himself on the night in question, and there was some evidence that Dechamps had been out about the time of the murder. Towards the end of the trial he tried to hang himself in his cell; whilst his father, an old and infirm man, did actually drown himself, soon after the arrest of his son. This was made a great point by the Procureur Général. "Il rappelle," says the report, "sa tentative de suicide essayée cette nuit, il en presse les consequences au point de vue de la culpabilite, et se demande comment s'il est innocent il ira affronter la justice de Dieu après avoir tenté d'échapper a celle des hommes." The suicide of the father was treated in the same way. "M. le Procureur-Général rappelle le suicide de Dechamps père, dépositaire du terrible secret, et qui n'en finit avec la vie, que parcequ'il pressent la condamnation de son fils, et redoute l'opprobre qui va en ressaillir sur sa famille." One singular feature in the case was, that towards the close of the proceedings Chrétien suddenly retracted his confession, and declared that it was false. Hereupon the jury was discharged, the prisoners were remanded, and a new investigation, which occupied a month more, was set on foot. This was obviously the grossest injustice to Joanon. By the end of this second period Chrétien had returned to his first story, and Dechamps had been also brought to confess, though his confession differed most essentially from Chrétien's. One part of the transaction, which need not be described, was abominably revolting. From the nature of the case, two persons must have been concerned in it; and Chrétien and Dechamps each laid the blame of it upon the other and Joanon. Joanon never confessed at all, but declared his innocence up to the last moment. They were all convicted, and all executed. It would be rash to express an opinion as to their guilt, because no one was in a position to form such an opinion except the Juge d'Instruction and the other official persons who got up the case. They saw the behaviour of the prisoners when they were interrogated; they knew how far Joanon's complaint, "Ma mémoire est bien affaiblie, on m'a tant tourmenté a l'instruction," which, to most English readers, appears very likely to be well founded, was true or not. They also had studied the matter in all its details, and knew the bearings and the real importance of the enormous mass of unsifted gossip which was thrown at the heads of the jury; but no one else could be expected to follow or to understand such an inquiry, or had the necessary materials for doing so with impartiality. The consequence is, that the men were substantially tried by the judges and the public prosecutors, and not by the jury; and such must always be the case where the evidence principally relied upon consists of the prisoner's statements, and not of the proof of criminatory facts by independent witnesses.
It is sometimes supposed that we could get the advantages of this System without its objectionable part, by allowing the examination of the accused person under certain restrictions. This notion is founded on a complete mistake. Perhaps a course might be suggested upon this subject at once beneficial and consistent with the principles of our own law: but this is another matter. The essence of the French system lies not in questioning the prisoner, once for all, in open court and under careful restrictions for his protection, but in questioning him secretly, repeatedly and systematically; in the power of confronting him in secret with witnesses to whom he refers, and with other persons accused with him; and in keeping him in solitary confinement, sequestered from all professional advice and assistance until the persons who "instruct the process" have satisfied their own minds of his guilt.
It is probable enough that this plan may produce a larger proportion of convictions for crimes than our own. It may possibly produce a larger proportion of just convictions, though this is more doubtful; but it is, and must be, at the expense of virtually transferring the power of adjudication from the jury to the judge. The jury is a mere excrescence in the French system, which would be more complete and harmonious (notwithstanding the foolish trick which prevails of praising the “logical” character of everything French) if it were abolished, and if, as was the case before the Revolution, the judges decided on the facts as well as on the law. This introduces the conclusion which should be pressed upon those who infer from such a case as the Road murder that our criminal system fails in the detection of crime. It might, no doubt, be improved in detail, but it cannot be improved in principle, if we are to maintain the trial by jury. If the jury are really to decide, the evidence on which they are to decide must be before them, and must be level to the apprehension of ordinary minds. It is a mockery to ask a jury to convict a man of murder because the committing magistrate says that the prisoner prevaricated in the course of a secret interrogation, and that on inquiry he found his statements to be false. Yet in almost every important French trial, such statements form one of the most important parts of the proof adduced. If we are determined to have trial by jury, it will be found absolutely necessary to submit, not unfrequently, to the consequence that crimes will go unpunished because they cannot be plainly proved, and that suspected persons will not even be apprehended because they cannot be questioned.
This suggests the question whether such a result is to be considered as a great calamity, worth avoiding at the expense of a considerable abridgment of personal liberty. The sentiment—the just and reasonable sentiment of most Englishmen—would be, that it is not; but the reasons by which this sentiment may be justified are not so well understood as they should be. They involve the whole question of the object of legal punishments. This object is twofold: first, the prevention of crime for the future; and, secondly, the legitimate satisfaction of the sentiment of revenge and indignation against wrong-doers; which, though it requires regulation, is as much apart of our natures, and stands in as much need of its proper satisfaction as any other part of it. It would be an unspeakable evil if people ever came to hear of such atrocities as the massacre at Cawnpore without anger, or if they were to inflict punishment on their authors without a hearty satisfaction, quite distinct from the hope that future ill-doers might be deterred by the recollection of them.
The mode of attaining these objects is not quite so simple as at first sight it might be supposed to be. The mere collocation of crime and suffering is not all that is required. If some one were endowed with a power of discovering murderers by intuition, and if he was authorized, whenever a person was murdered, to put the murderer privately to death, the check upon the crime, and the satisfaction and sense of security on the part of the public, would be measured exactly by the degree of their faith in the power and in the honesty of the executioner. If he was, in fact, infallible, and the public did not believe in his infallibility, the only result would be, that, whenever something happened which somebody considered a murder, somebody else whom he considered a murderer would die. This would contribute little, if at all, to the security of society, and would shock their sense of justice instead of gratifying their indignation. This illustration shows that the utility of legal punishments depends not only on their justice, but on the general recognition of their justice; and in a settled state of society in which crimes of violence are very rare, this is the more important element of the two. If, in the present state of English society, people were tried and sentenced for murder by drumhead courts-martial, the effect on society would be far worse than if they were not punished at all. In the second case, people would still retain their natural powers of self-defence, but in the former no man would be secure of his life for a day together.
So long as the general principle that crimes are to be punished is maintained, by their severe and exemplary punishment upon clear proof of guilt, a sword is suspended over the head of every one who has committed, or who meditates the commission of, a crime; and it matters comparatively little whether or not it falls in any particular case. Whoever the Road murderer may be, there can be little doubt that he will never commit another murder. To say nothing of remorse, he must have suffered, and must be suffering, torments of terror, compared with which the gallows would be a relief. Who would not prefer being hanged at once to the constant dread of detection? The old proverb, poena in paucos, metus in omnes, was justly ridiculed by Bentham in its application to the system of sentencing twenty men when only one was to be hung; but it affords a full justification of a system which detects few, but punishes inexorably every one who is detected.
Applying this principle to our own procedure, it must be admitted at once that it goes far to justify it. Of the guilt of a man convicted by an English jury, there can in ordinary cases be absolutely no doubt at all. If any transaction can claim the praise of deliberation, solemnity, impartiality, and absolute certainty in its positive results, it is an English criminal trial. No man leaves the dock of our courts under sentence whilst any rational being can retain the faintest doubt not merely of his being guilty, but of his having been proved to be guilty according to the most elaborate and stringent set of rules that ingenuity ever devised for the purpose of preventing injustice and oppression. There can, therefore, be no class of persons whose punishment can excite such entire, hearty, and righteous satisfaction.
These considerations are a complete justification of our system, and they show that the occasional impunity of crimes is in reality an unimportant evil. It is true that crimes often go unpunished, but life and property are more secure here than in any other part of the world; and, whoever goes unpunished, we are all of us free from what is a much worse evil than crime—liability to judicial or official persecution.
Cornhill Magazine, December 1860.