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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 Justice. 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 he pleases, at the time of the trial, under the general plea of 'not guilty'; and, in some cases, by relieving him from the payment of any costs, even where unsuccessful in the action, unless the Judge before whom the trial is had certifies his approbation of the action and of the verdict. Justices of the Peace are specially protected by a series of provisions which were recently codified in the three Statutes known as Jervis' Acts. (11 and 12 Vict. cc. xlii., xliii., and xliv.) It was under one of these Statutes that it was decided in the Court of Queen's Bench, in what is now well known as Governor Eyre's case, that, in the case of a charge of misdemeanour alleged to have been committed by the ex-Governor of a Colony, a magistrate within whose jurisdiction the accused had come had jurisdiction to hear the case; and if he committed on the charge, it was his duty to return the depositions into the Court of Queen's Bench, where alone the charge could be tried. It was also decided, on a civil action being brought in the Court of Queen's Bench against Governor Eyre, that a Colonial Act of Indemnity, by which the right of action in respect of an act done by the Governor of the Colony is taken away before an action has been brought in this country, is a good defence to such action in this country.1
Besides such topics as are included under the five preceding heads, and which may be regarded as normal matters of interest in reviewing the condition of the liberty of the subject during any period of history, there have of late years sprung up certain special controversies, to which accidental circumstances connected
1 Beg. v. Eyre, L.|K. 3 Q.B. 487. Phillips v. Eyre, L.R. 4 Q.B. 225.
with the rapid strides of civilisation in some of its aspects have imparted peculiar importance.
One of these topics, which as yet has only been cursorily alluded to, is that of the Police. It was seen in an earlier part of this treatise that the first institution of the Metropolitan Police by Sir Robert Peel in 1844, as a substitute for the older and then wholly ineffectual system of parochial constabulary, marked an important stage in the advance of that more centralised method of government which the modern conditions of society were rendering imperative. The reform of the municipal corporations, ten years before, supplied a ready machinery for the extension of the practice of imparting to the police force an official character and distinct organisation under a competent authority, which has gone far to supersede altogether the use of the watchman and the parish constable. The extension of the same sort of institution to counties, and the progressive enlargement of the area covered by the metropolitan police, together with the increase of their powers, are all harmonious steps in the same direction of making the police force of the country a substantial constitutional element of constantly increasing imports ance in reference to the liberty of the subject. In foreign countries, indeed, and especially in France, even under the most various forms of government, the police have been so highly organised, and invested with so great an amount of independence, both of legislative and of central executive control, that it is well known that they have constituted a physical and moral force of so portentous a description that neither political parties nor even influential private persons, and still less the dependent classes of society, have been able to move with any freedom in directions against which the police have determined, for reasons of their own, to oppose a barrier. It would not be in place here to investigate the causes of a state of things which is as much lamented by the more intelligent statesmen on the Continent as it is matter of just reproach on the part of States possessing better securities for public liberty. These causes, in France at least, mider the Kepublic, are being brought to the surface; and inasmuch as the undue preponderance of the authority of the police is found to have been connected with some of the greatest scandals and difficulties which the Government in that country has had to encounter, there is some hope that the country will be delivered from a thraldom which is worse than any other because it subsists mostly in the dark, and by its very nature defies the remedies of judicial investigations, parliamentary debates, and outspoken public opinion, which modify, and tend in time to correct, all other abuses.
Nevertheless, the fact of this vicious fungus growth of police officialism in other countries suffices to point out for the benefit of such countries as England and her colonies, and the United States, which possess the securities of the Habeas Corpus procedure and are habitually jealous of police aggression, some of the inherent dangers to public liberty which cling to a highly organised system of police administration. There are already too many instances presented in Courts of Justice in this country of these dangers having made their appearance.
It is to be remembered that the direct tendency of a growth of population, and of attendant civilisation, is first to multiply Statutes, and then to multiply police who shall carry them into effect. In England the police