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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 has 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 Uncertainty of Justice. 439
attained a vicious sort of fashion. In such a case as this, all considerations of personal reformation may he 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
Definition of Murder. 441
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 the 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