Upon the subject of the codification of the criminal law, I have hardly anything to add to what I have said on many occasions. I believe that it lies at the root of all real reform on the subject. Until the definitions of crimes, the punishments appointed for them, and the manner in which proceedings for their punishment are to be conducted, are placed before the public in a plain, systematic, authoritative manner, hardly any one will know what the criminal law really is, and all attempts at its improvement will of necessity be feeble and unconnected, and in many instances productive of more harm than good.
I wish, however, to make one addition to what I have so often said on this subject. When we speak of criminal law we commonly mean the law relating to indictable offences, such as murder, theft, robbery, arson, coining, forgery, and the like, and the law which regulates proceedings against persons suspected of such offences. There is, however, besides this, an immense mass of law which belongs to the same department, though it attracts comparatively little public attention. This is the law relating to offences punishable on summary conviction. These offences have increased and are increasing, and I am disposed to think that their increase ought to be much more jealously watched than it is. If they were collected together, they would be found to form a police code much larger, and touching upon ordinary life at an infinitely greater number of points, than the more serious offences, which ought to form a penal code. To give a single illustration of the singularities of this branch of the law, it is surely remarkable that whereas the game laws form one of the stock grievances on which Liberal candidates are expected to be indignant no one seems to care at all about the severe laws which have been enacted for the protection of all sorts of birds which are not game, at the instance, at least in one case, of so enthusiastic a Radical as Mr. Auberon Herbert.
My first remark upon the state of the criminal law accordingly is, that not only those branches of it which relate to indictable offences, but also those which relate to summary offences, ought to be codified. The former, however, are by much the more important; and, for reasons often assigned, I think that the time has come at which the subject might well be taken in hand.
Questions connected with the administration of the law are perhaps of greater general interest, and can be discussed upon grounds more readily intelligible to unprofessional persons, than those which relate to its substance or form. Those on which I wish to observe on the present occasion all belong to this class. They are:
1. The arrangements for holding assizes and quarter sessions.
2. The management of trials, and particularly the question as to the interrogation of accused persons.
3. The question of appeals in criminal cases.
The arrangements for holding assizes and quarter sessions bear, like every part of our institutions, the marks of their antiquity. They may be understood historically, but to justify them on grounds of expediency is impossible.
The quarter sessions must be held in the first whole weeks after the 31st of March, the 24th of June, the 11th of October, and the 28th of December; but the Easter sessions may be altered so as not to interfere with the summer assizes. The assizes are held in the spring and autumn, beginning about the end of February or the very beginning of March, and (since the Judicature Act) about the end of June or the beginning of July, and lasting through the first days of April and August respectively. The time for holding the assizes is not fixed by statute, but solely by usage. The commissions may be issued at any time for any place: indeed, the winter assizes, which have been regularly held for the last twenty-five years or more, are only special commissions like those which have often been issued upon special emergencies, as for instance when the Fenians who shot Brett, the Manchester policeman, were tried in October 1867.
The first great objection to these arrangements is their want of all relation to each other. To have two sets of courts for the trial respectively of the more serious and the less serious class of indictable offences is obviously sensible, and this object might be, and to some extent is, gained by the division between the Superior Criminal Courts and the Courts of Quarter Session. The advantages of the arrangement are, however, greatly diminished by the way in which the jurisdiction of the courts is defined, and by the arrangements made as to the times when they sit. The Superior Courts can try all offences whatever. The quarter sessions are restricted from trying a great number of offences which they might try just as well as those which are within their jurisdiction; and the result is that the assizes often interfere with and supersede the sessions, whilst the sessions do not relieve the assizes.
One of the commissions under which the judges of assize sit is the commission of gaol delivery, by the terms of which they are required to deliver the gaols of all prisoners whom they may find there. At the spring assizes and (since the Judicature Act) at the beginning of the summer assizes the judges often find in the gaols all the prisoners who ought to have been tried at sessions, inasmuch as the spring assizes are held just before the Easter sessions, and the summer assizes are now held in many counties at the same time as the midsummer sessions. For instance, at the last summer assizes at Lewes, all the prisoners were sessions prisoners, so that the judge of assize passed his time in doing the work of the chairman of the Sussex sessions, who, on the other hand, can have had nothing to do. In the same way, some years ago—and I believe that there has been no alteration—there used to be hardly any criminal business to be done at the Easter sessions, because the judges had just cleared the gaols. In the same way the winter assize constantly clashes with the January sessions. Hence, of the seven fixed appointments for the administration of criminal justice, no less than six are so arranged as to interfere with each other either often or always.
If the matter were considered on its merits, the natural course would be to have four circuits and four sessions, and to let the circuits follow the sessions at a short interval, so that every person who committed any offence would always be tried in three months. This would differ little from the present system under which four sessions and three circuits are provided for, though at inconvenient times.
Not only do the assizes and sessions frequently clash, but the limits of their respective jurisdictions are so drawn that the two sets of courts could not, even if their times for sitting were more conveniently arranged, support and assist each other nearly as much as they might.
The line is drawn (practically) by 5 & 6 Vic. c. 38, which contains a list of offences not triable at quarter sessions. Many of them are of such rare occurrence that the prohibition to the sessions to try them, though reasonable enough, hardly ever comes into operation. Such are offences against the prerogative, blasphemy, and seditious libels. Others are of such importance that they must of course be reserved for the superior courts, as, for instance, treason and murder. The provisions which really limit the usefulness of the quarter sessions are those by which they are prevented from trying any offence punishable on a first conviction by penal servitude for life. Now many offences which fall under this category are often extremely simple, and are followed not by penal servitude at all, but by short terms of imprisonment. Burglary is a strong illustration of this, forgery is another, and the same may be said of stealing post-letters, manslaughter, and a variety of other offences. It seems absurd that a chairman of quarter sessions should be at liberty to try a man who breaks into a lonely vicarage at 8 P.M. in the middle of the winter, frightens all the inmates, and ransacks the whole house; and that he should not be able to try a man who at midday in a large town gets through the window of a church and steals a money-box : or a boy who breaks a back window in a street at 9.15 on a summer evening and steals a loaf of bread by putting his hand through the broken pane. Again, the quarter sessions is the court in which cases of theft and obtaining goods by false pretences are usually tried; but if a person obtains money not only by falsely pretending that he has paid more than he really has paid, but by altering a receipt so as to prove that he has done so, he cannot be tried at the quarter sessions, but must go to the assizes. His trial there will be just as simple a matter as a trial at the sessions, and he will probably be punished less severely than if he had been convicted of obtaining the money by false pretences. How are these defects to be remedied, and what would be the result of removing them?
The most natural course, I think, would be somewhat as follows:— First, redefine the jurisdiction of the assizes and the quarter sessions. Then rearrange the times at which the courts sit, so as to make the assizes follow the sessions. The result will be that the serious cases will be taken at the assizes after the gaols have been cleared of the less important cases at the sessions. How then is the line to be drawn between the jurisdiction of the two sets of courts?
After much study of the definitions of crimes I have arrived at the conclusion that though it is possible to frame definitions which will make the law clear, consistent, and short, it is impossible to frame any definition which will not cover acts involving almost every imaginable shade of moral guilt and social danger.
The result of this is that a corresponding latitude must be left in the power of inflicting punishment. Manslaughter, to take a strong instance, may be all but murder, and may be all but accident; and even if the offence were so defined (as probably it ought to be) as to distinguish between killing by culpable negligence and killing by violence intended to hurt but not to kill, still the circumstances of such negligence or violence would vary to an extent which would be represented in punishment by the difference between penal servitude for life and a fine. So with regard to forgery. It is nearly impossible to distinguish by words between the offence of a stupid cook who, in order to conceal petty pilfering, makes a clumsy alteration in a book receipted by a tradesman, and the offence of a clever secretary or cashier who robs his employer perhaps of thousands of pounds by a forgery precisely similar in principle. The one offence might deserve penal servitude for life, the other three months' hard labour; but it is impossible to frame a definition of the offence of forgery which would not include both acts, or to describe the thing forged otherwise than as an accountable receipt. The result is that the line between the jurisdiction of the inferior and that of the superior courts ought not to be drawn by reference to definitions of crimes, except in a few cases in which there is no discretion as to punishment.
It ought also to be remembered that the definition of a crime determines nothing practically except the maximum punishment to which the defendant would upon conviction be liable; and this is only one, and not the most prominent, of the circumstances upon which the importance of criminal cases depends. A trial for assault may involve consequences momentous to the whole community. The prosecution of Mr. Bradlaugh resulted in a sentence of six months' imprisonment; but it was of far greater importance than many trials for murder. It is needless, however, to multiply illustrations upon a point so plain.
If the line is not to be drawn by reference to the technical denominations of crimes, it must be drawn by means involving a greater amount of attention to individual cases. It is difficult to suggest any neat and simple solution of the difficulty, but the object might probably be attained by care. In the first place I would suggest that, though the Courts of Quarter Session should be allowed to try nearly all common offences, they should not be allowed to pass sentences of more than, say, ten years' penal servitude. [There are some few, e.g. murder, libel, rape, which I would except from their jurisdiction for obvious reasons. Offences of rare occurrence—treason, for instance —should of course be reserved for the superior courts; but this does not affect the ordinary routine of criminal justice.] The effect of this would be that magistrates would commit to the assizes cases which they thought might turn out to be deserving of more severe punishment than the sessions could inflict. I would not, however, leave the subject entirely in the hands of the committing magistrates. Each case ought to be considered on its merits, and the distinction between the assizes and sessions ought to be made by a proper officer. But who should this proper officer be? Here we come upon one of the defects which pervades our whole system for the administration of justice—the want of organisation of the executive branch of it. We have plenty of executive officers. For every Court of Quarter Session there is a clerk of the peace, who is generally a leading solicitor in his county. For every circuit there is a staff of officers, the clerk of assize, the associate, the clerk of arraigns, and the clerk of indictments. There are besides executive offices attached to the superior courts, e.g. the Crown Office. All of these officers and offices have duties which are in many instances of considerable importance. Each, however, is independent of all the rest. I cannot help thinking that by a little rearrangement and organisation they might be made to discharge many duties which would cause the working of our judicial machinery to be very much steadier and more regular than it is; and in particular they might decide whether particular cases ought to be tried at the sessions or at the assizes, having regard to the particular circumstances of each. [If a similar function could be discharged by corresponding officers as to the venue of civil actions, it would be an immense advantage. At present every plaintiff practically decides where his action shall be tried. I think the public convenience, as well as what is often no better than his caprice, ought to be consulted in the matter. By a little arrangement beforehand, the civil as well as the criminal business at the assizes might be much more equally divided than it is at present. Why, e.g., should eighty or ninety cases be allowed to be entered at Croydon when there are but eight or ten at Hertford? In many cases it would make no real difference to the parties whether they tried at the one place or the other, and it would make a great deal of difference to the public.] With the depositions before them, and with the power of corresponding, there would be little real difficulty as to this; and the matter would, of course, be subject to the supervision of the judges at chambers.
If by this means all the cases which on any ground deserved to be considered as really important, and no others, were tried at the assizes, the result would be that at some of the smaller circuit towns there would be hardly any, and often no cases for trial, whilst the number at the larger places would be reduced. What the amount of the reduction would be I cannot say. Statistics are in existence from which it would be possible to ascertain precisely how many days the courts have sat, and how many cases and what class of cases they have tried at particular towns. If carefully examined, they would show how much judicial time might be saved in the less busy and populous parts of the country by grouping together the really important criminal business of several counties at single towns, instead of sending two judges to each. The experience also of the autumn circuit just concluded, and of the winter circuit of last year, would throw some light on the subject. But till these inquiries are made, it would be difficult to make even a rational guess as to the amount of judicial time which would be saved by enlarging the jurisdiction of the quarter sessions, and grouping the assize towns. As matters actually stand, I should say that on the North-Eastern and Northern Circuits the judges cannot do the work without a great deal of assistance from commissioners. On the Midland and Oxford Circuits they are more nearly on a level with it. On parts of the South-Eastern and Western Circuits they get some spare days, and, I believe, seldom require the help of commissioners; though sometimes they do. On the two Welsh Circuits there is very little business except at Swansea or Cardiff (as the case may be) and at Chester.
If (which I do not assert to be the case) sufficient judicial time could be saved in the less busy circuits, the best way of using it would be to form an additional circuit, as it is always inconvenient to all the parties concerned to have more than two courts sitting at once, and as there are hardly ever proper courts or other conveniences for the purpose. The new circuit might be composed of Westmoreland, Cumberland, Northumberland, and Durham. It would give two judges plenty to do for more than a month, and both Yorkshire alone and Lancashire alone would employ two judges, unassisted by commissioners, for about six weeks.
It must, however, be admitted that when every possible arrangement for economising time has been made, it may be necessary to appoint new judges. To any one who knows the facts, the assertion sometimes made that the common law judges are idle is simply absurd. Hardly any class of men in the community work so continuously, and the number of hours in which they sit does not admit of much increase. Judicial business cannot be done properly unless all the parties concerned are at their best, and after about seven hours few juries are quite fresh, and a great many judges and counsel are not. I doubt whether it is as a rule desirable that courts should sit before ten or after five, the hours fixed by statute for the London police courts. At all events arrangements ought to be made by which the judges of the superior courts will be enabled to do the whole of the work allotted to them without being obliged, as they often are at present, to ask for assistance from the bar. Of course, if a judge is disabled by illness or occupied in public business elsewhere, his place must be filled by a substitute; but the necessity for this arises very rarely, whereas the system of employing the services of commissioners has for some years been continually on the increase. It may be doubted whether the public fully understands either the nature of this system, or the extent to which it is carried. The Commissions of Nisi Prius, Gaol Delivery, and Oyer and Terminer, under which the assizes are held, are addressed to a great number of persons. For instance, the Commission of Oyer and Terminer is addressed to the Lord Chancellor, the Lord President of the Council, the Lord Privy Seal, and other distinguished persons, who would be greatly surprised if they were asked to act under it. All the commissions, however, are addressed to the judges who are to go the circuit, and to all the Queen's Counsel who practise upon it. The result is, that if the judges are unable to get through the work, they ask any Queen's Counsel who happens to be disengaged to assist them. To this arrangement there was no particular objection so long as it was confined within narrow limits, but of late years it has been so frequently resorted to as to become an abuse, certainly on some of the circuits, and I believe more or less upon all of them. On the Midland Circuit and on the North-Eastern Circuit, commissioners have sat so long and so often during the last five or six years, that it is hardly an exaggeration to say that there have, as a rule, been three judges on the circuit, namely, two real judges and one or other of some six or seven Queen's Counsel. I have myself sat for as much as ten or eleven days consecutively at Leeds trying both prisoners and causes, and often, though not so long, at York, Lincoln, Derby, and Warwick. If this had not been done, the business could hardly have been got through at all.
The objections to such a practice are obvious, and I think ought to be fatal to it. The mere fact that it makes the discharge of public business of the highest importance dependent upon chance services gratuitously rendered by professional men who happen at the moment to be disengaged, is sufficient to raise a strong presumption against it; but, in fact, it is open to much more serious objections. No man ought to fill the position of both advocate and judge at the same time and place. The following anecdote sets this in a stronger light than any discussion of the subject. Whilst a prisoner was being tried before a Commissioner, the Solicitor for the defence asked his Counsel to raise some frivolous objection. The Counsel refused on the ground that the Commissioner would overrule it. The Solicitor replied, “Oh I he is all right. I have just given his clerk a brief.” The possibility that such a thing should be said or even thought is to my mind an unanswerable objection to the whole system. It throws into the background all minor considerations. But surely it is difficult to reconcile with the dignity of the judicial office the spectacle of a man leaving the bench in order to plead, it may be, before one of the very counsel who have just been pleading before him, or even in order to engage in the rough encounters of the bar with men to whom he has just before been laying down the law as a judge. The good feeling and high tone of honour which prevail at the bar no doubt go far to neutralise the evils which might have been expected to be produced by such a system, but they do not and cannot alter its essential character. Of course no blame can attach either to the judges or to the counsel, who work the system by the only means available to them as matters stand; but its existence is not the less an evil which ought to be remedied, and I think it could be remedied by the means I have pointed out.
Objections to the proposal of grouping assize towns, founded on the expenses of witnesses and the like, would of course have to be considered by persons conversant with the details, but one objection often made to it appears to me unfounded. It is that the local administration of justice in a way which appeals to some extent to the imagination, and which is surrounded by many striking associations, is in itself highly popular, and ought to be carefully preserved, and that the proposed arrangement would interfere with it. I feel as strongly as any one can, that a system for the administration of justice, which is at once the object of great interest and deep respect, is in itself an invaluable possession, the dignity and impressiveness of which ought on no account to be impaired; but the proposals would, if adopted, tend not to diminish, but greatly to increase, all that is really striking and impressive in our present system. An assize at which a considerable number of important criminal cases are tried out by a good judge is one of the most characteristic sights to be seen in England; and to be present at and take part in the proceedings, say, as a juryman, is a piece of education of the highest importance. The ceremonial with which the judges are attended is not, I think, at all beyond what the intrinsic importance of their functions justifies and indeed requires, but the present system is so arranged as occasionally to make it look rather absurd. I have been present at an assize where the judge, the sheriff, the grand jury, a full panel of common jurymen, and many other persons, were brought together to try one little boy for an offence for which he ought to have been tried at sessions, and which was sought to be proved by two witnesses, one a policeman. If the criminals of three or four counties were collected together at one central place, there would always be something for the grand and petty juries to do, and something for the public to see and hear; but the whole is turned into an idle pageant if the judge in his robes, the sheriff in his uniform, the officers with their solemn proclamations and elaborate parchments, have nothing to do which deserves to be called business.
If it is said that under the present system every part of the country witnesses the administration of justice twice a year, and that this could not be under the system proposed, the answer is, that if the counties were grouped for assize purposes, and if there were four assizes a year, every town so grouped might witness at least one really interesting assize in the year instead of two of less interest. Suppose, e.g., that Lincoln, Nottingham, Derby, and Leicester were grouped together. The assizes might be held at Nottingham in the winter, Lincoln in the spring, Leicester in the summer, and Derby in the autumn. On each occasion matters of interest and importance would be pretty sure to be tried. The grand and petty jurymen would be summoned less often than at present, though their work at each assize would be more important; the judges and the bar would have far less travelling, and their work would be more regular and steadier than it now is.
One further observation arises on this part of the subject. No doubt an objection would be felt to extending the powers of the Courts of Quarter Session without doing something to improve them. This might be easily and cheaply brought about by allowing the justices to appoint, and perhaps in certain cases empowering the Home Secretary to require them to appoint, paid chairmen or assistant judges (to take the title of the paid Chairman of the Middlesex Sessions). Any number of perfectly well-qualified men of experience and standing at the bar would regard it as an honour to accept such a position at a very moderate salary. A Recordership worth £200 a year is an object of ambition to many men who have had long experience and considerable success at the bar, and to preside over the county magistrates at county sessions would generally be a more dignified and pleasant position than that of a Recorder. A small addition to the salary of a county court judge would probably in most cases be sufficient to induce him to accept such an office. The adoption of the plan suggested would make some rearrangements necessary as to civil business. I cannot now enter upon this subject, but there would be no very serious difficulty. Two circuits a year are quite enough for the civil business which has to be done at most of the circuit towns, and the advantage of grouping the towns would probably be even greater, whilst the difficulty would be less than in regard to criminal business.
Whether this plan or some other is adopted, it is obvious that something must be dome, for the existing system may be said to have broken down. Parliament last summer expressed so decided a feeling on the subject of having four circuits instead of three, that a fourth circuit had to be held, and was provided for by appointing three commissioners who tried the less important cases, whilst four judges went about from place to place trying all the cases of murder and some others. Probably this was as good an arrangement as could be made by way of a make-shift, but it cannot have been intended as a complete and permanent solution of the difficulty. The frequent repetition of such a proceeding would involve the establishment of an inferior order of judges, who, during part of the year, would be practising barristers and during other parts of the year judges of assize, holding their appointments on a strangely precarious tenure, as under the existing law they could be appointed only from circuit to circuit. I do not think such an arrangement would be found to be acceptable either to the profession or to the public, nor do I believe that it would be found in the long run to secure the sort of services which the public would expect and to which they are entitled. To say nothing of some minor inconveniences, the arrangement appears faulty in principle. If a man is to act habitually as a judge of assize, he surely ought to be put upon a footing at least as independent as that of the judge of a county court. The appointment should be permanent and sufficiently well paid to induce men at the head of the profession to give up their circuit business in order to accept it. I do not, however, think any arrangement good which leaves a man hovering between two scarcely consistent professions, and I think that it would be undesirable on every ground to establish judicial places which no man of marked ability would accept unless he hoped for promotion, and such hopes ought not to be excited. Hitherto the practice, with very rare exceptions, has been that a man who takes a seat on the bench, whether as a judge of a superior court, a judge of a county court, or a police magistrate, has reached the end of his career. This is one of the causes of the absolute independence of judicial officers of all sorts. Is it wise to run the risk of breaking in upon this rule?
By the system which I suggest all these difficulties would be avoided. All offenders would be tried within three months of their committal. The common run of cases would be disposed of at the quarter sessions, presided over by men of the position and experience of Recorders, paid for their duties partly by real importance and dignity, partly by salaries, the aggregate amount of which would be very trifling. Reserved cases would be tried by the judges of the superior courts, who would have proper time for the purpose. They would thus be able to try criminal cases with all the circumstances of deliberation and dignity which are associated with the administration of the law in this country.
I now pass to the other subjects mentioned, namely, the practice of excluding the prisoner himself from all but a passive share in the proceedings, or, to use the common phrase, ‘closing his mouth; and the absence of any effective system of appeal in criminal cases. From time to time, at irregular and often considerable intervals, these topics attract attention in consequence of the incidents of some trial which takes hold of the public imagination. The Penge case caused each of them to be considerably discussed two or three months ago, just as the trial of Dr. Smethurst did in the autumn of 1859. Of the Penge case I will say nothing. On the general question I have something, though little to alter in what I have said on the subject on many occasions and in many forms, but particularly in a book which I published in 1863, entitled A General View of the Criminal Law of England. Varied experience, however, for the last fourteen years, has perhaps given me a better right to express an opinion than I had at that time, and I cannot suppose that any considerable number of the readers of the Nineteenth Century are acquainted with, or have the means of referring to, the work mentioned.
The existing state of the law as to the interrogation of accused persons in this country is sufficiently well known. The only questions which, at any stage of the proceedings against him, can legally be asked of such a person are two. Before he is committed the magistrate, in a form prescribed by statute, asks him. Whether, having heard the evidence against him, he wishes to say anything? and cautions him that, if he does, what he says will be taken down and may be given in evidence at his trial. At the trial itself he is asked Whether he is guilty or not guilty? So far has scrupulosity about this matter gone, that some well-meaning persons have seriously proposed that this should be dispensed with, and that the prisoner should be asked only whether he wishes to be tried or prefers to plead guilty. He is not competent to give evidence, and if he is defended by counsel he is not even allowed to make any statement in addition to his counsel's speech.
The objections to this state of the law are so obvious and so strong that it is hardly necessary to state them. If the object of a criminal trial is to ascertain the truth, why debar yourself by elaborate precautions from access to what in the nature of things must be of all sources of information the best informed? If the object of a criminal trial is not to ascertain the truth, what is its object? The answer to this, as to all such questions, is that the question, What ought to exist? can hardly be answered satisfactorily till we have answered the previous question—How did the existing state of things come into being? When this question is answered, it becomes comparatively easy to deal with the other.
Condensed to the highest degree, the history of English criminal trials is somewhat as follows. In the very earliest period of our history the minute and careful scrutiny of facts to which we are now accustomed was practically unknown. Such a proceeding, for instance, as the trial of Orton, would have been physically impossible in an age when there was no writing-paper, and when only a very few people could have used it if it had existed. It would indeed have been all but impossible to hold such a trial without the assistance of printing, and these physical difficulties would have been nothing in comparison with the intellectual difficulty of classifying vast masses of assertions according to their logical relation, and weighing their value in critical scales. Such operations become possible only when the nature and the value of scientific methods of investigating matters of fact have been made familiar to educated men by their use in natural philosophy, history, and criticism. Before and for some time after the Conquest our ancestors relied upon compurgations and ordeals. The accused was to bring so many people to swear to his innocence. If he could not, or if he was accused more than once, or if his compurgators were suspected of perjury, he “ceased to be oath-worthy, and became ordeal-worthy.’ He had to be thrown into a pool of water. If he sank he was innocent (but I have some doubt whether he was not left to drown). If he floated he was hung, or at one time blinded and otherwise mutilated. By degrees these barbarous expedients were supplanted by the inquest, which was qualified to some extent by the trial by battle. The essence of the inquest was that questions of guilt and innocence were decided on the sworn reports of what might be called ea officio witnesses. The verdicts of juries proceeded upon their personal knowledge, whether immediate or derived from hearsay, of the offences committed in their own neighbourhood. Such a mode of procedure was so rough that it probably never existed in its very crudest shape. Jurymen must always have to some extent examined others besides testifying themselves. By degrees they came to rely altogether upon the evidence, and ceased to be in any sense witnesses. The change took place silently, but must have been complete by the fifteenth century. By the middle of the sixteenth century the ordinary form of a criminal trial was, with some few exceptions (the most important of which was the absence of counsel for the prisoner, supposing him to be accused of felony), very much what it is now. Sir Thomas Smith, who was Secretary of State to Queen Elizabeth, gives an account of the trials of the sixteenth century which, with some few alterations, would stand for a perfectly accurate account of a trial at the present day.
One of these exceptions, however, bears upon this very point of interrogating the prisoner. The following short extract is worth reading:—
‘The judge . . . asketh first the party robbed if he knows the prisoner, and biddeth him look upon him. He saith ‘Yea.’ The prisoner sometimes saith ‘Nay.' The party pursuant giveth good signs, verbi gratia. “I know thee well enough. Thou robbedst me in such a place, thou beatedst me, thou tookest away my horse from me, and my purse. Thou hadst such a coat and such a man in thy company.’ The thief will say ‘No,' and so they stand awhile in altercation.’[Smith's Commonwealth of England is one of the most striking books of the sixteenth century. It was written when the author was ambassador in France, in order to give the French civil lawyers a due notion of the merits of the common law as compared with their own procedure based upon Roman law. It is full of animation and vigour, and speaks up for the common law with a heartiness which is welcome in these days, when the revival of the study of Roman law on the one hand, and the discredit poured upon English law by Bentham and his followers on the other, have combined to obscure the extraordinary merits of our own system. The old-fashioned brags about the wisdom of the law of England no doubt required considerable discounting, but I believe it to be in substance the greatest repository of practical wisdom and strong common sense in the world.]
The trials thus ran into the shape of altercations between the prosecutor and the accused, and this must of necessity have involved a very effective cross-examination of the prisoner. That it did so in point of fact is proved by the earliest reports preserved to us of trials of importance. The first of these which goes into any detail is the trial of Sir Nicholas Throckmorton [State Trials, i. 869] for his supposed complicity in the rising of Wyatt in the reign of Queen Mary (April 17, 1554). The whole trial is a prolonged debate between Throckmorton, the counsel for the Crown, and the judges. The prisoner was closely pressed and questioned on every point of the case. Not only did he not complain of this or treat it as oppressive, but he begged as a favour that he might “answer particularly to the matters objected against’ him because his memory was weakened by imprisonment. All through the reigns of Elizabeth, James I., and Charles I., this practice seems to have prevailed. Perhaps the strongest illustration is afforded by the trial of Udall, [Ibid. 1271] a Puritan minister accused of being the author of Martin Marprelate. He obstinately refused to answer any questions before the Privy Council, denying their right to interrogate him; but when he was tried at Croydon Assizes he not only made no objection to being questioned, but asked, as Throckmorton did, that he might answer each point separately, lest, “my memory being overwhelmed with multitude of matter, I should forget to answer some points of importance.’ The trial then runs into a regular dispute between Udall, Dalton [Was he the author of Dalton's Justice?] (the counsel for the prosecution), and the presiding judges. Up to the very end of the seventeenth century the practice continued, but in the course of the eighteenth century it appears to have been given up so far as the trial was concerned. In the preliminary proceedings the practice of examining the prisoner continued longer. It rested upon a distinct statutory foundation. The statute 1 and 2 Ph. and Ma., c. 13, s. 4, directed the magistrates to take the “examination of persons accused of felony; and this was held to justify putting questions to them. The right existed down to the year 1848, though the practice had been disapproved of. The matter is at present regulated by the statute 11 and 12 Vic., c. 42, s. 18.
It is natural to ask what was the reason of so important a change, made (in the case of the final trial) silently and without the intervention of any statute or judicial decision. I believe that the change may be regarded as marking the final triumph of a feeling which played a very conspicuous part in our history, excessive jealousy of the procedure founded upon the version of the Roman law which prevailed all over the Continent, and which in this country was associated with arbitrary power in two of its most unpopular forms.
The ancient Roman law deals in a very cursory manner with the subject of evidence; but that curious hybrid product which was known as Roman law in the Middle Ages was full of elaborate speculations [Menochius and Mascardus are the best known authors on this particular subject. Dr. Wharton, the well-known American legal author, has a very interesting article on this subject in the Southern Law Review (published at St. Louis) for May 1877] of the most unprofitable kind upon this subject. To this source are owing most of the rules as to plena probatio, semi-plena probatio, suppletory oaths, and other matter of the same sort which exercised such an injurious influence over the laws of many continental countries. The effect of these speculations was as follows. A crime had to be proved by two eye-witnesses, but, if they were not to be had, circumstances of strong suspicion were held to justify the torture of the suspected person, and a confession so extorted was considered equivalent in connection with such circumstances to full proof. The continental civilians thus required a higher standard of proof than the English common lawyers, but in order to obtain it they resorted to a practice which the English people in general regarded with horror. Though not unfrequently practised in England at certain periods, torture was never legal amongst us, and a good deal of rather tawdry boasting (proceeding in part on the odd assumption that excessive fear of physical pain is a conclusive proof of physical courage) is to be found in Fortescue and other old books.
The English, however, disliked the procedure of the civilians, not only because it was connected with torture, but because it was connected with the ecclesiastical courts and the Star Chamber. In each of these the procedure was modelled upon that of the civil law; in each the accused was forced to answer specifically to whatever was alleged against him, not indeed by torture, but by what was known as the ex officio oath, which was required under pain of imprisonment of all defendants, and by which they were required to swear to make true answer to all demands made of them. In opposition to this claim, it was declared to be a maxim of the laws of God and of nature that no one ought to be forced to accuse himself, and I think it most probable that the practice of questioning prisoners died out by degrees under the influence of the popular hatred which had destroyed the courts of the procedure of which it had been the distinguishing feature. Though instances of it may be found as late as the year 1692, it was not nearly so common after the time of Charles I. as it was before, nor was it conducted at all in the same spirit.
The discontinuance of the practice was in accordance with other parts of the English law. Many reasons, too long to be referred to here, have caused English criminal trials to assume by degrees the character of civil actions, in which the prosecutor is the plaintiff and the prisoner the defendant, and in which the nominal plaintiff—the Crown—is really altogether unconcerned. Till very lately the parties to an action were incompetent to testify, and as the rules of evidence are substantially the same in criminal as in civil cases, the rule that a party was not a competent witness easily passed into a practice which practically forbade the interrogation of the prisoner. It was during the eighteenth century that the rules of evidence assumed their present shape, and during the same period the practice of interrogating prisoners was finally abandoned. When in our own days parties were made competent witnesses in civil cases, it was expressly enacted that the new law should not extend to persons subjected to criminal accusations, or to their husbands or wives.
Such is the history of the present law, told shortly. It shows that our present system was never established by any express or deliberate act of legislation, either parliamentary or judicial; that it cannot even be said to be ancient; that it is probably due to a jealousy of despotic power, the exciting causes of which have now passed away; and lastly that it is maintained after the rule of evidence which was regarded as its main justification has been deliberately altered on the ground that it was found by experience to be mischievous. These considerations do away with any presumption in favour of the rule which might be supposed to be raised by the fact of its existence, and show that the matter ought to be considered on its merits.
When the subject is looked at from this point of view, it seems hardly to admit of dispute that prisoners ought to be questioned. The commonest experience shows that in the very nature of things this must be an advantage to an innocent and a disadvantage to a guilty person. An innocent man may often find it very difficult to give an explanation of the various circumstances which make against him, if he is left to find out for himself in what respects they are suspicious, and is obliged to throw his defence into the form of a connected statement. The very fact that he is innocent will often make it difficult for a person to understand the grounds on which he is supposed to be guilty, and will thus make it far more difficult than it would otherwise be for him to give explanations necessary to establish his innocence.
Many years ago a party of men were tried three times over on separate charges arising out of the same facts. On their first trial they defended themselves faintly and in so confused a manner that no one could appreciate the point of the defence. At the second trial they brought it out rather better. At the third trial they fully understood the bearings of the facts, and defended themselves with so much vigour, that though all were convicted, the judge saw great reason to doubt the guilt of some of them; and on further inquiry the innocence of some was proved, and they received a free pardon. I have little doubt that if they had been questioned at the trial, the men who were ultimately pardoned would have been acquitted in the first instance. It is indeed too clear to be insisted upon that whatever has a tendency to bring out the truth must be favourable to the innocent and unfavourable to the guilty; and so plain is this that the only question which presents any real difficulty is as to the manner in which the interrogation of prisoners ought to be provided for.
The proposal most commonly made is that prisoners should be rendered competent witnesses in criminal, as they already are in civil cases. There is an objection to this which has always appeared to me very weighty. It would be practically impossible to treat a prisoner as a witness for all purposes. It would be practically impossible to punish him for giving false evidence. If a prisoner were to be so punished, every one who was convicted of any crime which he denied would have to be re-tried for perjury in denying it. In other words every person who committed a crime would be put under a legal obligation to confess it under the penalty of being sent to penal servitude. Such a law could never be executed. It would shock a sentiment, none the less powerful for not being altogether rational, that even a guilty man has a sort of right to defend himself freely and fully. Moreover, it would be almost equally objectionable to allow a prisoner to be dealt with as ordinary witnesses are dealt with in the matter of cross-examination to credit. A man is accused of a crime. He denies it, perhaps truly, upon his oath. Is the mere circumstance of his being subjected to one accusation to be made to involve the consequence that he is to be cross-examined upon every transaction of his past life, upon the chance of finding out something that might affect his credit? To many English readers a French acte d’accusation, giving a history of the whole life and conversation of the accused previous to the charge made against him, appears a revolting document. If every person accused of an offence were liable to be cross-examined as Mrs. Bravo, for instance, was cross-examined, the cross-examination would be worse than any acte d'accusation. It would enable the prisoner's bitter enemy to pry into every detail of the whole of his life. By such a change our courts of criminal justice would lose their humane and decorous appearance, and would be tainted with a cruelty utterly abhorrent to their whole character and to all their traditionary habits. If, on the other hand, no such cross-examination were permitted, and no risk of punishment were incurred by falsehood, the prisoner would not, in reality, be a witness. He would be exempted from one strong motive for telling the truth and from one of the most searching tests to which a witness's credit can be subjected.
If it is said that these arguments imply that witnesses ought not to be cross-examined to their credit, the answer is, that a witness and a prisoner do not stand on the same footing. The worst that can happen to a witness is exposure. A prisoner on his trial has to dread not merely shame, but conviction, as a result of prejudice. You show that a man accused of theft is an habitual thief, nominally in order to discredit his assertion that he did not steal one particular thing, but the effect of the examination must of necessity be to make the jury convict him on account of his general bad character. To this it must be added that though cross-examination to credit is absolutely necessary to the due administration of justice, it is at present pushed, even as against witnesses, to a mischievous length.
The truth is, that the fact that a man is placed on his trial, and is defending all that makes life worth having, perhaps even life itself, must of itself make his testimony, considered merely as testimony, simply valueless. When a disinterested witness of good character swears that he has seen and heard certain things, he is, in the absence of special reasons, believed, because experience shows that such persons usually speak the truth as far as their memory and powers of observation enable them to do so. But, in the presence of such an overwhelming interest as that of obtaining an acquittal, natural disinclination to falsehood goes for nothing. In weighing statements so made, its influence may be neglected, and belief in the matter stated ought to depend upon its inherent probability, the way in which it fits into and explains matters stated by others, the inquiries it suggests, and other reasons of the same sort. These considerations seem to me to establish a broad distinction between the statements of an accused person and evidence properly so called; and I would mark the distinction by a corresponding difference as to the way in which they should be received. Let the ordinary witness testify, as at present, under every sanction which can be devised for the purpose of securing his veracity. Examine the accused not as a witness, but in order, if he is innocent, to give him an opportunity of proving his innocence by explaining matters apparently suspicious; and in order, if he is guilty, to prove his guilt by showing that he is unable to give such explanations when he has every possible reason to do so, and when his attention is pointedly directed to the subject.
I have little doubt myself that the few cases in which, under our present law, innocent people are convicted, are mostly to be accounted for either by wilful perjury—which, I think, is less uncommon than many people believe—or else by an omission to give explanations the necessity for which is not sufficiently understood by the persons accused. None but those who constantly see it can appreciate the gross stupidity of prisoners, or the state of abject helplessness to which terror and the apparatus of courts of justice reduce them. Moreover, most of them are very poor. The class of solicitors who take up their cases is not a high one, and the instructions given to counsel (and the business of defending of prisoners is mostly in the hands either of young or of not very successful men) frequently consist of a copy of the depositions, endorsed with the name of the counsel and the amount of his fee. The solicitor in a common case often takes little trouble in the matter. The counsel never speaks to his client, but makes the best speech that occurs to him on the evidence; and the truth of the matter may never come out at all. If, as happens in a majority of cases, the prisoner is undefended, it is even worse. A man with a good case if he knew how to state it may be convicted merely because he is frightened, stupid, and called upon for the first time in his life to make a speech—a thing which frightens many an educated man almost out of his wits when he runs no greater risk than that of looking silly when his health is drunk. The following story, told me by one of our most distinguished judges, ought to be deeply pondered by those whom it concerns, for it may be a typical one: –A decent-looking labourer was tried years ago at the quarter sessions for stealing a pickaxe. The owner proved that the pickaxe was safe overnight, and lost in the morning. A pawnbroker or dealer of some kind proved that in the course of the following day the pickaxe was sold to him by the prisoner. The prisoner had no questions to ask, and made no defence. The jury were told that the rule of law is, that if a man is found in possession of stolen goods immediately after the theft, he must be taken to be the thief unless he can account for his possession of the goods. They instantly convicted the prisoner, who was then in due course called upon to say why sentence should not be passed upon him. He inarticulately growled out something which on further inquiry appeared to be this: ‘It’s very hard they should say I stole the axe when I bought it from that man standing there.” The man referred to, on being called, admitted that he had sold the axe to the prisoner. The jury were allowed to recall their verdict, and the prisoner was acquitted. But one minute more of nervous bewilderment would have sent him to gaol and ruined his character for life. Two questions—‘Did you sell that axe?' ‘How did you get it?’ —would have cleared the matter up; but the man's liberty was all but sacrificed to a prudish fear of interfering with it. In how many cases the sacrifice has been completed no one will ever know; but after much prosecuting and defending of prisoners for all sorts of crimes in former years, and after trying a considerable number in later years, I have come to the conclusion that such cases do occur, though, one may hope, not often.
Such being the object for which prisoners ought to be questioned, how ought it to be done? I think it is highly desirable that a first examination should be made before the committing magistrates. Such a step would make it practically almost impossible to devise fraudulent defences (false alibis for instance) between the trial and the prisoner's committal. It would also, in many instances, prevent defences which an unassisted prisoner would never think of raising. In most instances a guilty man's advisers make a far better defence for him than he would make for himself. They stand upon defects in the case for the Crown, instead of admitting the matter charged and attempting to explain it away, as he would in many cases be sure to do. The best advice which can possibly be given to a guilty man is to hold his tongue, or, as they say, ‘reserve his defence,’ and this is just the reason why the magistrates ought to question him.
At the trial I think the prisoner should, at the end of the case against him, be invited to say whatever he pleased, even though he might be defended by counsel. I would allow the counsel for the Crown to cross-examine him on his statement or if he kept silence, and I would also allow the judge and the jury to interpose at any time any questions they thought fit to ask. I would allow his own counsel to re-examine him. It admits of some doubt whether the whole of the examination ought not to be conducted by the judge and jury, to the exclusion of the counsel on each side. Something, at all events, may be said for adopting this plan in cases where a prisoner is not defended by counsel; but be this as it may, in one way or another I think the prisoner ought in every case to be called upon to tell his own story and to be questioned as to its truth, and that not in the character of an ordinary witness, but in order that the best and most natural of all conceivable tests may be applied for discovering whether he is innocent or guilty.
A strong and natural prejudice against such a proposal has been created by the impression which prevails that this practice has led to oppression in foreign countries, and particularly in France. I think, though with the reserve which becomes every one in judging of foreign institutions with which he is imperfectly acquainted, that French criminal procedure would be regarded in this country as intolerable. In order, however, to understand the system, it must be considered as a whole. Trial by jury, and the principle of leaving the regulation of the procedure in the hands of the prosecutor and prisoner respectively, are the roots out of which the whole English system has grown. Trial by jury is in France grafted upon a system in which it is quite out of place. It is impossible to study either the Code d’Instruction Criminelle or to hear, or read accounts of, the trials which take place under its provisions, without seeing that the framework of the system is derived from the times before the Revolution, when evidence was collected by torture. [See several of such trials minutely described in my General View of the Criminal Law of England. M. Gaboriau's novels, published long afterwards, seem to me, as indeed do many of Balzac's, to give a much better account of French trials than any English novelist has ever succeeded in giving of English trials.] You may force a man to confess either by Squeezing his legs between wedges till he confesses, or by keeping him in solitary confinement for months together, worrying him by interrogatories held in secret and founded upon evidence taken also in secret behind his back. The principle of the two processes is precisely the same, namely, that it is the duty of the Government to take possession of suspected people, lock them up in gaol, and make their lives a burden to them, until they satisfy the authorities either that they are innocent, or that nothing more is to be got out of them in the way of admitting that they are guilty. A French Cour d’Assise is a sort of open confessional, for the proceedings of which preparations have been made by the proceedings of a confessional held in private, the priest (i.e. the juge d'instruction) being armed with the power of keeping his penitent in solitary confinement till he considers that he has got as near as he is likely to get to the bottom of the penitent's heart. It is not the power of asking questions of prisoners, but the power of extorting answers to those questions, which makes the French system so oppressive. Much, too, must be allowed for the temperament of the people. The mobile, excitable, passionate nature of the French is not favourable to fair play as we understand it. Judges and public prosecutors get to look on accused persons as enemies to society to be crushed and hunted down. They do not seem to appreciate the immeasurable superiority of force which is on the side of society, or to feel that deep considerate pity which I think comes over most English people, and not a few English lawyers, however fierce they may look, when they have before them a poor wretch who, whatever his crimes may be, is fighting for his life—sometimes literally—against terrible odds. Judges or counsel who are harsh to prisoners, however vile, or cunning, or impudent, are as much in the wrong as a strong man who strikes a little child or a sick woman, and I think it may fairly be said that in this country as it is there is not much more reason to fear the one scandal than the other. I do not think there would be much, if any, real danger that any arrangement which might be made for questioning prisoners would seriously affect this noble characteristic of English courts of justice. If it did, the price would certainly be far too heavy to pay for any advantage which could be obtained by it.
The last subject to which I wish to refer is that of appeal in criminal cases. The defects of the present system are so great that, as far as I am aware, no one either denies or even underrates them. It is enough to say, that whenever serious doubt is thrown on the propriety of a given conviction, the Secretary of State may be called upon, usually by popular clamour, to overrule the verdict of a jury by his own private opinion, formed on grounds which are never made public, and on evidence given under no sanction, after which he has to advise Her Majesty to grant a free pardon for guilt on the ground that the guilty man is innocent. The only serious question arising upon this state of things is: What is the most appropriate remedy? The choice lies between two courses. Either a person convicted of crime ought to be allowed to move for a new trial, as may be done by the unsuccessful party in a civil action, or some sort of Court of Appeal upon the facts must be instituted. In the work already referred to I gave at considerable length my reasons for thinking that the latter would be the better course of the two. Further experience and reflection have led me to change that opinion. The principal reason which formerly led me to prefer a Court of Appeal was that the most important class of criminal cases in which new trials are desirable are cases in which new trials would not be granted if the matter were civil. Dr. Smethurst's case afforded a striking illustration of this. He was tried and convicted in 1859 for poisoning Isabella Bankes, his mistress, and after the trial there was reason to believe that the importance of certain medical questions which were referred to on the trial had not, at that time, been sufficiently appreciated. Any one who will study that case will, I think, agree with me in saying that the proper course would have been a new trial. As it was, Smethurst was pardoned because Sir Benjamin Brodie reported to Sir George Lewis his opinion that ‘there was not absolute and complete evidence of’ Smethurst’s ‘guilt.’ If the proceeding had been a civil one, if Smethurst had been sued for damages for causing Miss Bankes's death, and if a verdict with ruinous damages had been given against him, I do not think he would have entitled himself to a new trial merely by showing that the evidence in his favour might have been stronger than it was, and that if he had then seen all the . bearings of the question, he would have shaped his case differently. The answer in such a case would have been : ‘You must go further than that; you must either show that, under the circumstances in which you then stood, you could produce no more evidence than you did, or else you must take the consequences of your own neglect.’ This, though satisfactory as between party and party, would not and ought not to satisfy the public in the administration of criminal justice. It would be practically impossible to carry out a sentence of death or penal servitude whilst there was a serious doubt as to its justice, because the convict or his advisers had not understood their case, and so had failed to present it properly to the court.
From this consideration I formerly drew the inference that the proper remedy in cases like Smethurst's, where the parties had failed to bring the matter forward in a satisfactory way, was not a motion for a new trial, but the institution of a public inquiry before the Home Secretary and some selected judges. I am now disposed to think that the difficulty I have pointed out might be met by enabling the court to grant new trials in criminal cases on somewhat different terms from those on which they would be granted in a civil case. On all other grounds it seems to me that power to grant new trials would be better than the institution of a system of appeals properly so called. Not to insist on other reasons for this opinion, I would observe that trial by jury is the standing method of trial established in this country, and that it is more in accordance with all our habits to let the final decision of all questions of fact rest with a jury than to send them before a small number of specially selected judges. The principal objection which I have met with to this proposal is that it would cause a great increase in the business of the courts, as every one who was convicted would move for a new trial. To this it may be replied that a motion for a new trial would never be made when counsel advised, as they generally would, that there was no possible chance of success. If groundless applications were made, the courts would refuse them in a very summary fashion. The suggestion that the jury might, if they had so pleased, have found a different verdict from the one which they actually did find, would never be regarded as a reason for granting a new trial. If it were thought desirable to take security against possible abuses of the system, the permission of the Attorney-General, or that of the judge who tried the case, to make the motion, might, if necessary, be made a condition precedent to it. If, however, it is true that, in any considerable number of cases, there are substantial grounds for new trials, which, under the present law, cannot even be discussed, it follows that the present law involves a cruel and flagrant denial of justice; and if it is said that the courts have no time to do justice, the answer is that more judges ought to be appointed.
I may observe, in support of the opinion given above, that in India, appeals, both on the facts and on the law, are admitted in all criminal cases whatever in which any heavier sentence than a fine of 50 rupees, or an imprisonment of one month, is inflicted. Every capital sentence is referred to a superior court for confirmation before it is carried out, and means are taken to enable every convicted person to appeal, with hardly any trouble or expense. I have not the statistics at hand, but it is my impression that in a large majority of cases there is no appeal at all, for the simple reason that the convicts are well aware that they are and have been proved to be guilty, and that an appeal would be of no use. I have little doubt that the same would be the case in this country.
There are many other points in which our system of criminal procedure appears to me to admit of great improvement, but they are for the most part of too technical a character to be discussed in these pages. If the alterations which I have suggested were made, we should have a system freed, I think, from all glaring defects, compact, and in which no time would be wasted. Whether it could be administered by the existing staff of judges is a question on which I offer no opinion.
The Nineteenth Century, December 1877.
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