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serve, that the severity of the punishment goes directly to increase each separate chance.- Whether the practical reasoner, whose case we are figuring, will so argue, is of no consequence; he knows the fact, whatever may be the reason. The fact is, that persons are or may be more slow to prosecute a shoplifter-witnesses more unwilling to come forward—juries more anxious to acquit-and judges more prone to reprieve or pardon-than if the punishment were less severe. This fact being known to him, he being sure, in short, that only one in nearly 1900 is executed for offences of this description, what can be so obvious as the conclusion, that the spectacle he has witnessed proves nothing, practically speaking, but the bad luck of the sufferer ;-and that it should no more influence his own conduct, than if he never had beheld or heard of it?---Such is the answer which he gives to the second question.
The existence of the law in the statute-book, or, as it is termed, the denunciation there promulgated, is of most feeble force, when put in the balance against such considerations as these. What avails it to tell men that they shall suffer death for certain acts, and to show them the contrary ? - Will they believe the book rather than the fact ?-Will the rogue appeal from the evidence of his senses to the text of a statute ; and, instead of looking at his comrades taken to prison for shoplifting, and afterwards let off, -will he pore over the 10th and 11th of William III. to convince himself that it is a capital felony? Such fancies really suppose the persons who are the objects of criminal legislation, either to be a great deal more refined, or a great deal more dull and unthinking, than the rest of mankind.
Let us now turn to the administration of this law,-and we shall observe the fruits of the doctrine of discretion in another shape. Hitherto we have been considering chiefly its influence upon the public, to whom punishments are addressed. We shall now, in tracing its influence upon the mode of trial, see at the same time additional proofs of its interference with the instruction which punishments are meant to convey.
When a person is put upon his trial for a crime, it seems a very obvious proposition, that the truth or falsehood of the charge brought against him should be the point, and the only point, submitted to the consideration of the tribunal before which he is tried that the sentence, pronounced in the event of his conviction, should impose on him the penalty due to the offence of which he was accused and that the same tribunal which tries him, should investigate the truth of the charge whereupon the penalty attaches. Yet, nothing can be more wide of the proceedings which, in fact, take place under the
prevalence of the present system. The charge preferred in the indictment is frequently different from the charge inquired into by the Court. The culprit is accused of having stolen to the amount of five shillings in a shop; and it is possible that nothing beyond this charge may come before the Court which is to try it. But it is also very possible that other matter may arise out of the judicial investigation ; and that this incidental matter may be so important in its influence upon the ultimate result of the trial, as nearly to supersede the original subject of inquiry. The prisoner may turn out to be a person of a bandoned character, generally; he may prove to have been frequently before tried for a similar offence; he may have attempted to defend himself by suborning perjured evidence. If these things appear against him, the Court considers them; although one of them—that one which most frequently occurs, is a specific crime known in law, and severely punishable. So, if a person is tried for robbery, the felonious and forcible taking is not the only matter inquired of: A question arises often much more material to his fate, whether any act of violence was committed by him.--Again, the punishment awarded by the sentence is not always that which the law attaches to the crime charged. When one has been suspected of murder, but the proof of this charge fails, he may be convicted of stealing forty shillings in a dwelling; and the offence which cannot be proved—nay, which cannot be mentioned on the trial-may decide the sentence. A person charged with privately stealing in a shop or dwelling, and nominally tried for that offence, but found, in the course of the trial, to be a man of general bad character, or to have set up a perjured alibi in his defence, is sentenced to death ; not evidently because the law makes the crime charged a capital felony, (for this denunciation is never attended to in courts), but because he has been found, or supposed, to be guilty of that for which he never was tried, and which no law ever made capital—of having a bad character, which is not punishable at all--or of suborning perjury, which is punishable as a misdemeanour. Lastly, the tribunal which ought to try the truth of the whole charge, is frequently not permitted to inquire into that part of it which is to regulate the final result. This requires a little more attention.
The jury, by our law, are the judges of the whole facts of the case ;-the whole matter in issue is referred to them. The charge is stated in the indictment; and (at least in the great majority of cases) generally denied by the plea of the defendant. This affirmation, on the one hand, and denial on the other, of a proposition of fact, constitutes the issue which the jury are to try; and their verdict, or the opinion formed by them upon examining the evidence adduced on either side, is a decision of this question, or a determination affirming or denying the proposition submitted to them. If the indictment charges that the prisoner stole five shillings in a shop, the verdict of the jury can only determine whether or not he did steal to this amount in a shop; and the jury decide no other question. But the prisoner attempts an alibi ; and the jury no doubt consider whether he has succeeded in proving it. If they say he is guilty of the charge in the indictment, they say by implication that he has not proved his alibi : but they say nothing more. They do not determine any thing with respect to the merits of this defence, except, in general, that it has failed. How it has failed, they do not decide, nor have they any means of inquiring. It may be, that the prisoner has suborned false witnesses to swear he was absent from the spot where the crime was committed : or it may be, that his friends, unknown to him, have been guilty of this subornation: or it may be, that the witnesses were mistaken in the time, or in the person of the prisoners and that he alone knew of their mistake. In the first case, he has suborned false witnesses : In the second, he has only stood by, and profited by the subornation of others: In the third, no perjury has been committed ; but the prisoner has suffered a mistake to be committed beneficial to his defence, and innocent on the part of those who fell into it-has done something, in short, not very different in point of guilt from the mere assertion of his innocence, implied by pleading the general issue. Now, if the merits of this mode of defence are to regulate the sentence which follows on the verdict of guilty, it is manifest that the material question is not, whether the prisoner committed shoplifting ? but, to which of the three cases just enumerated his defence belongs ? Because, certainly, if it belongs to the last class, and probably if it belongs to the second, a perfectly different decision will be come to, from that which would follow if it belonged to the first. This, then, is really the question to be tried, in so far as the life of the prisoner is at stake: But this is a matter not directly in issue. It is a point into which the Jury do not inquire, and upon which their verdict is quite silent. By whomsoever the most material question is tried, the Jury have nothing to do with it. They try something quite different, and comparatively un-. important. The fate of the prisoner depends upon others ;not merely his punishment, but the facts of his case are decided on by the court. He cannot be said to be tried by a Jury.
But are we quite sure that he has been really tried at all ;that the facts most material to his case-those points, upon the truth or falsehood of which the result of the trial hinges, have been judicially inquired into by any part of the tribunal said to try the cause? We fear not. The verdict only answers the question raised in the pleadings; and the trial is only shaped with a view to answer this question. If the witnesses who swear to the alibi are mistaken, the affirmative is as much proved as if they were wilfully perjured ; and therefore, no inquiry needs be instituted into the point- upon which, however, the sentence is to hinge Whether there be perjury in the defence or not? It is clear that, if no such inqudry is necessary, none will
, in the majority of cascs, be made; because the prosecutor only seeks to prove his case, that is, to bring evidence sufficient for substantiating the charge on the record. The court cannot call witnesses, and try the emerging pointthe collateral issue, whether the alibi is founded in false swearing or not. There may be grounds of suspicion ;-observations may occur ;-the case may, of itself, furnish more or less of light into its origin :-But, how wide is this of the certainty required by our law? The prisoner is fenced round with forms, and protected from all unfavourable presumptions, upon the inquiry which professedly constitutes the subject of the trial, but the result of which is insignificant in detera mining his life or death ;-while the question upon which every thing turns, is to be determined without forms, or precautions, or safeguards of any kind to be decided without deliberate examination, incidentally, and upon the evidence adduced in prosecuting a perfectly different inquiry. Let it also be remembered, that in confining ourselves to the illustration from the aggravation now alluded to, we are taking the case most favourable to the opposite argument, inasmuch as it involves an imputation at least of a known charge, which might be inquired of, and is not a vague indefinite aspersion, like that of general bad character, which could scarcely, in any shape, be judicially sifted.
Cases will probably occur to the legal reader, in which the result of a trial is affected by matters not put in issue; and others, where the result turns materially upon points which, though in issue, are nevertheless by no means the main object of the proceedings. Thus, where an action of damages is brought against a person for seducing another's wife, and the defence consists in an attempt to prove that the husband treated her brutally, prostituted her to others, or connived at her guilt ;-or where å similar action is brought for seduction of a daughter, and the defence is to destroy the woman's character by attempting to prove prostitution, the nature of these defences, if the proof of them fails, will be taken into the account in assessing the damages ; and the
plaintiff plaintiff may be said to recover more for the loss of his wife's or daughter's society than he ought to do, because his own or his daughter's character has been attacked in the course of the proceedings. In like manner, if an action is brought for slander or libel, and there is a plea of justification which fails, the damages will be greatly increased, although, strictly speaking, the Jury are only required to try the matters arising previous to bringing the action. But, in all these instances, the necessity of the case justifies, or rather requires, a departure from stríct and rigorous principle. There is no other remedy--no other means of assessing the additional compensation which every one must admit that such defences render just and fitting to be given at least no means which would not greatly endanger the free course of justice. The inconvenience would be extreme, of allowing separate actions to be brought for injuries sustained by the recriminations of the defendant's counsel; and there would be a manifest absurdity in making the statements set forth on a record, or sworn to (and not falsely sworn to) by witnesses, the subjectmatter of new trials. Besides, in all these cases, no inconvenience arises from the incidental matters which are raised for consideration. When these matters are on record, by being pleaded specially, they are in every respect before the court, and no. tified to the opposite party, as much as if they formed the original ground of any proceeding; and even when they arise in the course of trial under the general issue, they are regularly examined and decided upon by the Jury, exactly as the rest of the case is.
Very different, however, is the evil of which we have been complaining in our criminal procedure; and it is an evil by no means justified by any necessity. The letter of the law says, shoplifting is a capital felony. The practice of the courts says, it shall not be punished capitally, except it be accompanied with certain aggravations. Then, why not put those aggravations in issue, as well as the act of shoplifting itself? But is there any sense in thus confounding together distinct offences ? Would it not be infinitely better to punish each appropriately and separately? Why not attach a certain penalty to shoplifiing, and a certain penalty to subornation of perjury? If the former crime should be punished with transportation or imprisonment, and the latter with imprisonment or pillory-if such would infallibly be the sentences pronounced, where the same person committed the second offence in any other way but in the attempt to escape punishment for the first—why should we, in this one case, confound the two crimes together, and, out of a clergiable felony (as in practice it has becoine) and a misdemeanour, create, by some strange process of judicial compound