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Uncertainty of Justice. 439
attained a vicious sort of fashion. In such a case as this, all considerations of personal reformation may be cast to the winds, if they compete in the slightest degree with the absolute necessity of vindicating the public order. Indeed, for this purpose the indirect consequences of a punishment generally inexpedient may for a time be neglected. But punishments which are inconsistent with personal reformation, and unfavourable to the general strengthening of moral habits—of which punishments flogging is undoubtedly one—should never be allowed to become a permanent institution of the criminal law.
It is not saying too much, to assert that these propositions, as thus enunciated, are a mere description of the liberty of the subject- as an idea inherent in the English Constitution, and growing with the development of its growth.
4. The liberty of the subject in respect to the administration of the criminal law has been perhaps endangered as much from the curious doctrines which have prevailed in Courts of Justice relative to the definition of crimes as from any other cause whatever. This has been particularly manifested in the case of treason, murder, and the indefinite class of offences capable of being comprehended under the head of ' conspiracy.' Nor is it only the liberty of individual culprits or accused persons which has suffered from the indecision or the tortuous doctrines of Courts of Justice. The State has equally been a sufferer, as it must always be where convictions become matters of chance rather than of reasonable certainty, and where indiscriminate mercy is appealed to, to balance the scale over-weighted by a capricious severity.
The disorders, the political unrest, the lurking suspiciousness—if not overt doubt—as to the claims of the reigning family to the throne, as well as the want of good and free government throughout the country, had the effect, up to the commencement of the present century, of making the enactment and administration of the laws of treason one of the most conspicuous departments of Criminal Law activity. Usually, each successive Sovereign had his own Treason Statute for his special protection during his life ; and the strained interpretation of the most obsolete passages of the most obsolete Statutes of Treason forms one of the bitterest passages in the history of the reign of so recent a monarch as George III. The general content of the population during the present and the previous reign, and the energetic effort which has been made on all sides to promote good and equal government for the benefit of all classes of the community,—as well as the more intelligent apprehension of the real nature of the English Constitution, and of the way in which it is a product and expression rather than an arbitrary creation,— have been manifested in no way more conspicuously than in the simplification of the law of treason even to the extent of creating a new offence which, in the interests both of accused persons and of the State, is free from most of the vices of definition adherent to the offence of treason under the older but still subsisting Statutes. The Statute creating the offence of 'Treason-Felony' (12 Vict. c. xii.),— under which a series of discontented persons who had committed murder, in pursuit, as they alleged, of political objects, were tried in 1868,—had not only the advantage of dispensing with all the difficulties of proof and disputable doctrines inherent in what were
known as the 'constructive treasons' of the older Statutes, but, by ranging ordinary offences committed by political enthusiasts no longer with political offences, but with the commonest crimes, went a long way to clear the popular conscience, as well as to facilitate the trial of offenders,—quite as much in their own interest as in that of the State.
Much discontent has been felt of late years with the definition of the crime of murder as recognised in the Courts of Law; and many efforts have been made by legal reformers, in and out of Parliament, to amend t he definition. The effect of the existing definition, by which the essential element of malice need not be present in fact, but only by legal imputation,—by which, in other words, a person may be convicted of murder because of his peculiar situation in other respects, and not only because he actually desired to kill the person slain,—as for instance, because of his being engaged in committing another felony, resisting capture, or quarrelling and striking with a weapon likely to kill,— is to produce much vacillation in the administration of justice, and either to multiply convictions which are too discordant with the natural sentiments of justice prevalent in the community to have the slightest chance of being followed by adequate punishment, or to result in wholly irrational acquittals. Two remedies have been propounded,—the one, that of confining the punishment of death to cases where actual malicious intent is proved,—the other, that of distributing the crime of culpable homicide into two classes, of which only the graver class carries with it the punishment of death, and leaving it to the jury to find under what category the crime they hold to have been committed falls. This last remedy, though having a certain plausibility and show of deference to popular institutions, would be in the highest degree inconvenient, inasmuch as the real question in any case before a jury would be whether on the whole they wished the prisoner to be hanged or not; and even the abolition of capital punishment would only alter the force of this objection, and not its character. A popularly constituted body, from its very excellence for deciding bare matters of fact, is the least suitable of all bodies or persons to assign punishments. The assignment of punishments, when they are not fixed in advance by the law, tries to the utmost the skill of the Judge, who is bound to consider a vast number of topics, such as the prevalence of a particular class of crimes at the time, the character and temptations of the prisoner, the probability of a repetition of the crime either on the part of the prisoner or of some other person, and the danger to the community of a recurrence of the crime,—a class of complicated and sometimes competing considerations with which only a highlytrained mind can deal, and which could never be handled with advantage by a promiscuous and numerous group of persons, accidentally congregated together.
The law of conspiracy has recently undergone some amendment, with the view of preventing its being abused in the interests of employers of labour for the solution of purely trade disputes. Nevertheless, though this is the most indefinite part of the old criminal law, and the decisions upon it exhibit every kind of variety and indecisiveness,—the liberty of the subject being proportionately imperilled,—it is not clear that an amount of definiteness can really here be attained which would be in a logical sense satisfactory. For two or more Responsibility of Officers of fustice. 443
persons to agree to do an act injurious to another or to the State,—even if the act contemplated would not itself, where committed by a single person, be a crime, —may undoubtedly mark a stage in the accomplishment of a generally mischievous purpose which it may be of great public importance to arrest at that point. But it is obvious that the proof of such an agreement is always difficult, and none the less difficult where the facts are most reprehensible ; and if the objects agreed about be not restricted to those forbidden by the criminal law, almost any latitude of interpretation is permitted to the judge, to the jury, or to both. On the whole, the claims of the liberty of the subject seem to call for a very strict definition of the objects which are possible grounds for an indictment for conspiracy, though these grounds need not be limited to offences already cognisable under the criminal law.
5. The principle has been over and over again substantiated of late years, both by the Legislature and by Courts of Justice, that all judicial officers, as well as all members of the Executive purporting to act in a judicial character, are criminally as well as civilly liable for malicious invasions of the liberty of the subject. It has been the practice of late years, in all Statutes which prescribe in detail the procedure under which they have to be administered, to prevent this principle of civil and criminal responsibility from being abused so as to impair the facility of the general operation of the Act. This is effected by requiring a lengthened notice to be given to the officer whose conduct is impugned of the proceedings to be taken against him, which must be taken within a limited time; by facilitating his defence, through enabling him to give any matter of exculpation