« ПредыдущаяПродолжить »
is here, more than anywhere else, that the subtlest dangers to popular liberty sometimes lie concealed. This remark has a special pertinence in reference to the period which has elapsed since the passing of the first Reform Bill. The notion that individual freedom needed protection against the Crown and its officers, and even against an aristocratically-constituted Legislature, had long been fixed in the popular mind, and had been fortified by burning memories of victories won in Courts of Justice and often in fields of a more irregular warfare. But it was not unnatural to believe that, so soon as the people became adequately represented in Parliament, and indeed promised to attain an authority paramount over all privileged classes as well as over the highly organised engines of government, all fear of encroachments on private liberty, over and above such as might be called for in the strict and intelligently-interpreted interests of the whole community, might be dispensed with. The House of Commons was, henceforth, it might have been believed, an assembly mainly composed of popular tribunes,—sensitive even to captiousness of the minutest novel invasion of popular freedom, whether threatened through the medium of the police, the construction and administration of the criminal law, the requirements of the army and navy, or the claims of novel scientific theories for arresting disease and promoting general wellbeing. • If such anticipations were entertained, they have not been fulfilled. It has rather been proved, in accordance with well-known precedents in other times and countries,—that legislative assemblies are not the less despotic for being democratised. They are tempted,
Fulfilled. Il-known. ve assem Phey aret
Despotism of Democratic Legislatures. 425
indeed, to be more despotic. They are ostentatiously the organs of the popular opinion and voice; and when they invent chains for their constituents, it is their natural and ready defence that their constituents are willingly and gladly fettering themselves. The parade of free and public discussion, the cautious procedure of Select Committees of Inquiry (however constituted), the total absence of secrecy,—so soon, at least, as any attempt at secrecy has been detected,—and the concurrent opportunities for discussion in the public newspapers, all give a plausibility to legislative measures introducing any amount whatever of restraint on private freedom, in the face of which bare abstract dogmas borrowed from the mouldy relics of another age are impotent to make a stand.
It has usually happened, indeed, during the last few years, that the defence of the so-called • liberty of the subject’in the Houses of Parliament has fallen into the hands of a very limited group of Members, who, except in the cases where they have on other grounds been individually respected, have rather seemed possessed by a fanaticism, or at the best an ignorant whim. It is no doubt true that the progress of modern science, especially in the sanitary department, has laid open many fields for the advance of the province of government to which former times could present no parallel. It is also true that the greatest possible lenefit to public health, and to the classes of society least able to protect themselves, has been accomplished, and will yet be accomplished, by imposing on a refractory minority sanitary restraints and conditions imperatively demanded in the interests of all, majority and minority alike. In a former part of this treatise it has been seen that one
main function of Parliament in recent times has been that of constituting small subordinate legislatures, such as Boards of Health and Local Boards, in close and constant communication with the central Executive Government. The constitutional propriety of such legislation has never been doubted, though the nature and limits of the general policy may be at any time matter of fresh political criticism. The only point to be noticed here is, that there is a limit beyond which no measure which contemplates aggression on the independence of private persons must proceed, whatever the public interests involved. The public, as a whole, is constituted out of an assemblage of private persons; and just as there are modes of torture and injurious treatment of individual persons which no public end can justify, so, for ends which are valuable in themselves, there are some kinds of intrusion on private rights which would constitute a far greater public evil than the failure to attain those ends. It was thus that Coleridge distinguished between a person and a thing, in that a person alone was an end in himself. • Side by side with the really important and wellconsidered schemes of scientific men for bringing to bear on the mass of the population the product of scientific researches, there have been of late years flying about in all directions all sorts of crude legislative propositions calculated to attain, after a fashion, one sort of beneficial end, but certain to carry with them in their train a wholly new class of evils which they are powerless to remedy. Among these evils, those of endless registrations at every turn and corner, incessant and omniscient inspection, the imposition of uniformity in hours, construction of dwellings, fashions of life, and
rates of work, are among the most transparent. And yet, though the average good sense of the House of Commons, coupled with other favouring causes, has opposed a barrier to most of these devices, very little nas been heard in opposition to them of arguments based on the essential rights of the subject to a certain measure of liberty. But unless the nature and the value of these rights are better apprehended and more loudly insisted on, it may become a mere matter of legislative accident how far any of these rights are retained in the future.
The Liberty of the Subject may be considered under two aspects, according as it is or is not connected with the administration of justice.
I. It is perhaps in connection with the administration of justice, and especially of criminal justice, that the liberty of the subject is at the present day most thought of and talked about. It is also in the administration of criminal justice, especially as presided over by the Court of Queen's Bench, that the value of the liberty of the subject is appreciated at the highest, and that liberty most efficiently protected. The main changes which have passed over the administration of criminal law of late years have related to:
1. The extension of the summary jurisdiction of Magistrates, and the creation of Police Magistrates, Stipendiary Magistrates, and Stipendiary Chairmen of Quarter Sessions, as substitutes to some extent for unpaid Justices of the Peace :
2. The establishment of new Criminal Courts, such as the Central Criminal Court, and the Court for Consideration of Crown Cases Reserved, for appeal on
points of law raised in criminal trials ; and the reduction to a certain kind of principle of the practice of re-opening before the Home Secretary cases which presumably seem to have some claim to the exercise of the Royal prerogative of mercy:
3. The settlement of criminal punishments on a scientific basis, as laid down by the best philanthropists and prison reformers of the past and present generation :
4. The re-construction, more or less complete at present, of the Criminal Common Law and Statutes :
5. The insistence on the responsibility of officers of justice to civil or criminal Courts.
. It might have been expected that the ancient system of unpaid Justices of the Peace, nominated by the Lord Lieutenant out of the county gentry, would be found wholly inadequate to meet the wants of an age when the inordinate growth of some great towns, and especially the metropolis, was bringing with it an amount, variety, and complexity of criminal business, for the discharge of which the Justices appointed under that system could not be expected to have either leisure or capacity. At the same time the wants of a new age, and of a more refined civilisation, were generating a new class of emergencies, to provide for which a long and constantly growing list of offences has had to be constructed, not allied to crimes in the moral sense of the term, but made to resemble them in respect of the paramount importance of prohibiting their commission. These novel necessities have been grappled with by the Legislature in three distinct ways.
First, there was the expedient of providing for the appointment, through the Home Office, of professional Magistrates, sufficiently remunerated, and possessed of