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Administration of Civil Justice. 455
it incumbent on the Judge to guide the investigation, and draw the attention of the jury to the inherent intricacies and defects of the process of search resorted to.
With respect to the administration of justice in civil cases, the chief changes of late years affecting the liberty of the subject have been those connected with the abolition of imprisonment for an indefinitely extended period while a debt remains unpaid, coupled with the introduction of the system of County Courts giving a ready and effective remedy for the non-payment of small debts, and the reform of the bankruptcy and insolvency laws, for the punishment of fraudulent indebtedness on the one hand, and, on the other, for placing a merely unfortunate trader or debtor on a large scale in a position for retrieving his fortunes, and for ultimately paying his creditors in full, if disposed to do so. These changes are not only favourable to public liberty, which under the old system was often grossly violated through the preferment of preposterous claims, or the vindictiveness of disappointed creditors, but are highly conducive to wholesome trade relations, and to the placing of credit on the higher basis of moral confidence rather than the sandy foundation of mere legal terrors. In fact, the whole reconstitution of the Courts of Law and Equity which has recently been proceeded with, and the simplification of means by which rights can be vindicated, and wrongs remedied, has a directly favourable bearing on the protection of the liberty of the subject. Where law is capriciously or expensively administered, the rich always has an advantage in litigation,—and therefore in all business which might terminate in litigation,—over the poor. In such a state of things, the poor is bound—or led, whether consciously or not—to control his actions largely at the bidding of one who is prepared, on meeting the slightest resistance, to play the game of a legal proceeding, and incur any amount of expenditure in forcing on a matter in dispute from one court of appeal to another till he obtains a decree in his favour. Thus, the law so administered, in spite of its orderly forms and its plausible respect for the equal rights of all men, becomes as intolerable an engine of tyranny as the most despotic government or tyrant. The cheaper law is, the more certain it is, and the nearer it is to the homes and the work of all citizens, the better it conduces to defend the rights of those who have no other avenger, and to protect the liberty of those who, in a densely crowded population, without friends, without money, with spare education, and amidst absorbing toils, have just so much free space to live and breathe in, with the self-respect worthy of a man, as the law gives them, and no more.
II. It was said above that in a growing class of cases not connected with the administration of justice a tendency has recently manifested itself to encroach, in the name of the public interests, on the liberty of the subject. Illustrations of this tendency are supplied by the case of the Vaccination Laws, the laws for enforcing compulsory education, the Factory Acts, the Lunacy Laws, the Public Health Acts, and some of the practices and laws appertaining to the discipline of the Army and Navy.
The invasion of the liberty of the subject which is contemplated by each of the departments of legislation here enumerated is justified on its own special grounds, —so far as it is, or can be, justified at all. The broad Noji-Judicial Invasions of Private Rights. 457
principle is now pretty generally confessed that it is as much an ahuse of liberty for a parent to refuse to have his child educated as it is for him to refuse his child the necessaries of life. It is also admitted that to diffuse an infectious complaint, through a neglect of essential precautions which are in everybody's hands, is an abuse of liberty which the State is entitled and properly required to guard its subjects against. So far, there is now little discrepancy with regard to principles. The practical difficulties arise when it is attempted to give effect in detail to these general principles, keeping in view the rival scientific theories which are advocated in different quarters before the Legislature, and the diverse habits of the people, under a great variety of circumstances, for whom it is purported to provide by one comprehensive legislative measure. Assuming, for instance, that general vaccination is a valuable if not wholly trustworthy preservative against the general spread of the small-pox, and that the small-pox is so obnoxious a disease that a considerable diminution of public liberty may properly be encountered in order to resist its progress, still it may happen that, since the vast mass of the population on whom the burden of the compulsory clauses falls feel the burden, but do not feel with equal keenness and force the necessity for it, a spirit of resistance, not to say rebellioE, may be generated, which, if prolonged and intensi6ed, may be an evil which goes far to balance the somewhat problematical physical advantages of a peremptory and wholesale execution of the law. The difficulty of applying any comprehensive legislation of this sort, (and most sanitary legislation is by its nature of the most comprehensive kind,) is, that either one hard and fast stereotyped practice and mode of administration has to be applied to an indefinite number of variable cases and circumstances, or else the administration of the law, in itself forbidding and unpopular, has to be largely delegated to local authorities and agents of inferior capacity, subjected to a very complicated, and at the best most imperfect, process of inspection. This difficulty has been largely felt in applying the compulsory clauses of the Education Statutes; and it has been hitherto met, as in the Local Health Acts, by rendering the adoption of compulsion to a great extent a matter of voluntary choice in every district. The Vaccination Laws, and those clauses of the Factory and Workshop Acts which restrict the labour of women and young persons not of tender age, are couched in terms which leave no possibility for the admission of pliant and flexible variations in the execution of the law. The Lunacy Commission, as now existing, which superintends and controls in detail the operation of the Lunacy Acts, is charged with the duty of watching with the utmost possible minuteness the operation of the Acts. Nevertheless, even here, the operation of the Acts, as affording an insufficient protection to the liberty of the sane, so often as an imputation of insanity is beneficial to the interests of influential relatives or neighbours, has latterly been brought into most serious controversy. Probably, however, the remedy is here near at hand, and the interposition at all points of a Justice of the Peace and a quasi-judicial proceeding would obviate many of the difficulties at present experienced.
Over and above all difficulties of procedure, and the apprehension of an undue extension of police interference or magisterial despotism, there is a question which has Corporal Inflictions. 459
previously to be settled, though the discussion of it is frequently implicated in the discussion of those other matters. Supposing the region of police and magisterial activity were restricted to the smallest possible dimensions, and placed under the most satisfactory judicial or executive control, it still has to be ascertained whether, for any public purposes whatsoever, the person of a citizen can, with due regard to recognised constitutional principles, be exposed to certain kinds of forcible aggression or violation. In some respects, a line has been in practice drawn, which, in the matter at least of criminal punishments, excludes certain modes of corporal aggression as possible modes of punishment. To this class belong all kinds of mutilation, whether temporary or permanent, and all that is rather vaguely designated by the name of' torture.' When the question of flogging comes under discussion, it is always held to be a sufficient condemnation of it to establish that it belongs, especially if severe and repeated, to the class of' torture ;' and the same conclusive objection has been made to the use of what is known in prison discipline as the 'silent system,' and certain other kinds of punishment which are only proved after long experience to be far more painful and destructive than at first sight they seem. Such punishments are those of working, as at the treadmill, for a great length of time, at a wholly unproductive sort of labour, or being placed in positions of shame and public ignominy, as for instance by wearing a strait waistcoat, or being placed in the stocks or the pillory. But, apart from the consideration of criminal punishments, to which a far greater amount of scientific and humane thought has been attracted than elsewhere, the propriety of using flogging as a recognised punishment,