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Practice of Appeal to the Home Secretary. 435 with the operation of what is known as Palmer's Act, by which, in certain emergencies where it seems unlikely that a fair trial can be had in the country, the prisoner can be brought within the jurisdiction of the Central Criminal Court,-as well as the later provisions for multiplying winter assizes, and thereby guarding against the undue detention of prisoners committed for trial,—is a favourable specimen of the real constitutional anxiety which, though dormant in some directions, is keenly stirred into life on behalf of persons accused of wellrecognised crimes. The institution of the Court for the Consideration of Crown Cases Reserved, by which the uniform and logical administration of the Criminal Law by Judges is guarded, and the more systematic practice pursued of late by the Home Secretary in considering cases brought before him on the ground that for some reason or other a conviction or sentence is not satisfactory, are steps in the same direction. Much discussion has indeed taken place of late as to whether the post-judicial enquiry sometimes conducted by the Home Secretary had not better be of a more public character, or whether a purely executive officer such as the Home Secretary, charged with a multitude of other business, is the fittest person to preside over such important and delicate investigations. It usually happens that the reconsideration of a conviction depends upon a series of accidents quite as much as upon the intrinsic unsatisfactoriness of the verdict of a jury. The Parliamentary and ministerial position and character of the Home Secretary has much to do with it, and the fortuitous alliance of the public press of the country with the convicted prisoner has more. Under any system of administering criminal justice in this country there would always be a final opportunity for the exercise of the prerogative of mercy. The question is whether, previously to, or in anticipation of, the arbitrary exercise of this prerogative, it is expedient to interpose a public court of appeal from the verdict of a jury, to which either all convicted criminals should have a right of referring their cause, or only such criminals as might convince a public officer, say the Attorney-General, that, either through accidental circumstances at the trial, or through the appearance of fresh evidence since the trial, there was a presumption in favour of a fresh investigation of the whole or of some part of the case. Such a court of appeal might in some respects resemble that at present called into being by the Home Secretary for particular cases. It might be constituted of a special number of judges, assisteil on occasions by professional experts, and might be relieved from some of the technicalities which in all ordinary cases hedge round in a wholesome way the rules of evidence. There is no need for the proceedings of the Court to be public at the time, though an accurate report of them should be preserved and published at an early date in a parliamentary paper. In this way the advantages of privacy for the purpose of escaping from the pressure of political zeal or popular passion would be attained, while the utmost opportunity for parliamentary and public scrutiny at the proper time would be secured.
3. The subject of criminal punishments has been on the whole treated of late in a spirit more conformable to the requirements of scientific thought in the different regions to which it is related than perbaps any other matter to which the Legislature has addressed itself. The thought of Bentham, brought to bear by the per
Criminal Punishments.—Flogging: 437
tinacity of Romilly and the energetic invective of Brougham, has succeeded in transforming one of the most barbarous criminal codes of Europe into one which now competes with any, if not in respect of mildness, certainly in respect of scientific moderation. From the time that the punishment of death was confined to murder and treason, the main topics of general controversy have been those of the superior value of long or of short sentences, the proportions to each other which should be borne by the purely reformatory and penal elements in prison discipline, the use of remunerative labour in gaols, the value and kinds of penal servitude which can be resorted to in default of transportation, the modes and conditions of shortening terms of punishment, the expediency of systems of police supervision after release from gaol, and the limits within which, if at all, the punishment of flogging is permissible.
Most of these topics depend for their treatment on the logical application of principles of punishment which are now admitted with a tolerably wide amount of general assent. The question of flogging is the one which, more than any other, is closely connected with that of the liberty of the subject; and it is one for the proper handling of which the requisite principles seem hardly yet to have been discovered. Some confusion bas resulted from the attempt to combine in one view the subject of corporal punishments as it presents itself in juvenile education, in the discipline of the army and navy, in prison discipline, and in the administration of the general criminal law. Though it is quite possible that the practice of flogging might be wholly inadmissible or wholly admissible in all these cases, still the principles of admission or non-admission are only in
some respects the same for all. It seems to be admitted by the Legislature that flogging is the least desirable of all criminal punishments; and it has hitherto been restricted to one or two classes of crimes, such as shooting at the Queen, or committing a robbery with violence after a certain fashion which for a short period obtained a dangerous popularity. For other crimes, such as that of wife-beating, confessedly as odious and brutal as any, and also very frequent, the Legislature has shrunk much from applying this punishment. It seems to be confessed on all hands that while flogging has the valuable element of being signally deterrent, a reformatory element is wholly absent from it. Worse even than this, the infliction of the punishment seems calculated to aggravate those very brutal and vindictive passions for the repression of which it is invoked, while the sort of retaliatory measures adopted by the State and addressed to the person of the offender are in themselves more likely to diffuse a spirit of disrespect for the body, and annihilate the prevalent sense of modesty,—which is the reverse of the effects which a well-chosen punishment ought to produce. On the other hand it is no doubt an evil to admit the principle and practice of flogging when applied to certain offences, and to reject its use in the case of other offences even still more morally abominable. Such an illogical application of punishments must lead to moral confusion in the mind of that part of the public which draws a large part of its moral sentiments from the instruction given by the rules and administration of the criminal law. It may be well for a short time to strike terror into the minds of a particular class of offenders, among whom a novel exhibition of criminality has suddenly
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 ádministration 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.