CHAP. 10.]

COURTS OF EQUITY TO CRIMINAL TRIALS.

309

we may add, much more of elevation of character, is required. To endeavour to obtain this intelligence and uprightness by a mode of chance selection must always be very uncertain of success. If those who were eligible for this species of jury were obliged to possess a certain qualification in point of property; if, of those who were thus eligible, a competent number. were selected by ballot; and if the prisoner and the prosecutor were allowed a large right of challenge, perhaps every thing would be done which is in the power of man.

The number of arbitrators who form a court of equity should always be small. Large numbers effect less good by accumulating wisdom, than harm by putting off patient investigation to one another, and by "dividing the shame" of a partial decision.

The members of such courts, though capable of deciding with competent propriety on questions of right and wrong when facts are laid before them, may be incapable, from want of habit, of eliciting those facts from reluctant or partial witnesses. Now I perceive no reason why, both in criminal and civil courts, a person could not be employed, whose profession it was to elicit the truth. Is he to be a pleader or an advocate? No. The very name is sufficient to discredit the office in the view of pure morality. One professional man only should be employed. That one should be employed by neither party separately, but by both, or by the state. It should be his simple and sole business to elicit the truth, and to elicit it from the witnesses of both sides. Securities against corruption in this man are obviously as easy as in arbitrators themselves. The judges of England evince, in general an admirable example of impartiality; and as to corruptness it is almost unknown. What reason is there for questioning that officers such as we speak of may not be incorrupt and impartial too? If handsome remuneration be necessary to secure them from undue influence, and to maintain the dignity of their office, let them by all means have it. Even in a present court of law or justice, suppose the examination of witnesses was taken from barristers and conducted by the judge, does not every man perceive that the truth might be elicited by one interrogator of the witnesses of both parties? And does not every one perceive that such an interrogator would elicit it in a far more upright and manly way than is now the case? Pleading is a thing which, in the administration of justice, ought not to be so much as named.

Bearing along in our minds then the inconveniences and the evils of fixed laws, let us suppose that a circuit was taken, and that courts were held from which the application of fixed law was, so far as is practicable, excluded. Suppose these courts to consist of three, or five, or seven men, selected according to the utmost skill of precautionary measures, for their intelligence and uprightness, and of one publicly authorized and dignified person, whose office it should be to assist the court in the discovery of the truth. Suppose that, when the facts of the case, and as far as possible the motives and intentions of the parties, were laid open, these three, or five, or seven men, pronounced a decision as accordant as they could do with the immutable principles of right and wrong, and excluding almost all reference to fixed laws, and precedents, and technicalities;-is it not probable, is it not reasonable, to expect that the purposes of justice would be more effectually answered than they are at present? And even if justice was not better administered, would not

310

TECHNICALITIES.

[ESSAY IIL such a system exclude various existing evils connected with legal institutions, evils so great as to be real calamities to the state?

Perhaps it is needless to remark, that all courts of equity which are recognised by the state should be public. Individuals who refer their disputes to private arbitrators may have them privately adjusted if they please. But publicity is a powerful means of securing that impartiality which it is the first object in the administration of justice to secure. There is one advantage, collateral indeed to the administration of equity, but not therefore the less considerable, that it would have a strong tendency to diffuse sound ideas of justice in the public mind. As it is, it may unhappily be affirmed that courts of judicature spread an habitual confusion of ideas upon the subject; and, what is worse, very frequently inculcate that as just which is really the contrary. Our notions of a court of judicature are, or they ought to be, that it is a place sacred to justice. But when, superinduced upon this notion, it is the fact, that by very many of its decisions justice is put into the background; that law is elevated into supremacy; that the technicalities of forms and the finesse of pleaders triumph over the decisions of rectitude in the mind,-the effect cannot be otherwise than bad. It cannot do otherwise than confound, in the public mind, notions of good and evil, and teach them to think that every thing is virtuous which courts of justice sanction.-If, instead of this, the public were habituated to a constant appeal to equity, and to a constant conformity to its dictates, the effect would be opposite, and therefore good. Justice would stand prominently forward to the public view as the object of reverence and regard. The distinctions between equity and injustice would become, by habit, broad and defined. Instead of confounding the public ideas of morality, a court of jndicature would teach, very powerfully teach, discrimination. A court, seriously endeavouring to discover the decision of justice, and uprightly. awarding it between man and man, would be a spectacle of which the moral influence could not be lost upon the people.

In thus recommending the application of pure moral principles in the administration of justice, the writer does not presume to define how far the present condition of human virtue may capacitate a legislature to exchange fixed rules of decision for the impartial judgments of upright men. That it may be done to a much greater extent than it is now done he entertains no doubt. A legislature might perhaps begin with that pernicious species of arbitrary rules which consists of technicalities and forms. To deny justice to a man because he has not claimed it in a specific form of words, or because some legal inaccuracy has been committed in the proceedings, must always disapprove itself to the plain judgments of mankind. Begin then with the most palpable and useless rules. Whatever can be dispensed with, it is a sacred duty to abolish, and every act of judicious abolition will facilitate the abolition of others: -it will prepare the public mind for the contemplation of purer institu tions, and gradually enable it to adopt those institutions in the national practice.

As to the particular modes of securing the administration of simple justice, the writer would say, that those which he has suggested he has suggested with deference. His business is rather with the principles of

CHAP. 11.]

OF CRIMES.

311

sound political institutions than with the form and mode of applying them to practice. Other and better means than he has suggested are probably to be found. The candid reader will acknowledge, that in advocating institutions so different from those which actually obtain, the political moralist is under peculiar difficulties and disadvantages. The best machinery of social institutions is discovered rather from experience than from reasoning; and upon this machinery, in the present instance, experience has thrown little light.

Here, as in some other parts of this work, the reader will observe that alterations are proposed and improvements suggested which have been actually adopted since these Essays were written. Our courts, and also the legislature, have lately paid some attention to the modes in which public justice is administered. As yet, the alterations which have been made are chiefly confined to the criminal laws: but our judges are now beginning to exert the discretionary power which is vested in them, in preventing the course of justice from being, so frequently as it heretofore has been, intercepted by technicalities and verbal inac curacy. Of this the public had lately an instance in the cause of Gulley, v. the Bishop of Exeter. A parliamentary commission has been appointed and is now sitting, whose object it is to devise improvements in the practice of our courts of judicature.-ED.

CHAPTER XI.

OF THE POPULAR SUBJECTS OF PENAL ANIMADVERSION.

THE man who compares the actions which are denounced as wrong in the moral law with those which are punished by civil government will find that they are far from an accordance. The moral law declares many actions to be wicked which human institutions do not punish; and there are some that these institutions punish, of which there is no direct reprehension in the communicated will of God.

It is not easy to refer all these incongruities to the application of any one general principle of discrimination. You cannot say that the magistrate adverts only to those crimes which are pernicious to society,for all crimes are pernicious. Nor can you say that he selects the greatest for his animadversion, because he punishes many of which the guilt is incomparably less than others which he passes by. Nor, again, can you say that he punishes only those in which there is an injured and complaining party; for he punishes some of which all the parties were voluntary agents. Lastly, and what seems at first view very extraordinary, we find that civil governments create offences which, simply regarded, have no existence in the view of morality; and punish them with severity, while others, unquestionably immoral, pass with impunity. The practical rule which appears to be regarded in the selection of offences for punishment is founded upon the existing circumstances of the community.

Offences against which, from any cause, the public disapprobation is strongly directed are usually visited by the arm of the civil magistrate, -partly because that disapprobation implies that the offence disturbs the order of society, and partly because, in the case of such offences, penal animadversion is efficient and vigorous, by the ready co-operation of the

312

SEDUCTION, ETC.

[ESSAY III public. Thus it is with almost all offences against property, and with those which personally injure or alarm us. Every man is desirous of prosecuting a house-breaker, for he feels that his own house may be robbed. Every man is desirous of punishing an assault or a threatening letter, because he considers that his peace may be disturbed by the one and his person injured by the other. This general and strong reprobation makes detection comparatively easy, and punishment efficient.

Examples of the contrary kind are to be found in the crimes of drunkenness, of profane swearing, of fornication, of duelling. Not that we have any reason to expect that at the bar of heaven some of these crimes will be at all less obnoxious to punishment than the former,-but because, from whatever reason, the public very negligently co-operate with law in punishing them, and manifest little desire to see its penalties inflicted. An habitual drunkard does much more harm to his family and to the world than he who picks my pocket of a guinea,-yet we raise a hue and cry after the thief, and suffer the other to become drunk every day. So it is with duelling and fornication. The public know very well that these things are wrong, and pernicious to the general welfare; but scarcely any one will prosecute those who commit them. The magistrate may make laws, but in such a state of public feeling they will remain as a dead letter; or, which perhaps is as bad, be called out upon accidental and irregular occasions.

Another rule which appears to be practically, though not theoretically, adopted is, to punish those offences of which there is a natural prosecutor. Thus it is with every kind of robbery and violence. Some one especially is aggrieved: the sense of grievances induces a ready prosecution; and whatever is readily prosecuted by the people will generally be denounced in the laws of the state. The opposite fact is exhibited in the case of many offences against the public, such as smuggling, and generally in the case of all frauds upon the revenue. No individual is especially aggrieved (unless in the case of regular dealers whose business is injured by illicit trading), and the consequence is either that numberless frauds of this kind are suffered to pass with impunity, or that the government is obliged to employ persons to detect the offenders and to prosecute them itself. There are some crimes which seem in this respect of an intermediate sort,-where there is a natural prosecutor and yet where that prosecutor is not the most aggrieved person. This is instanced in the case of seduction. The father prosecutes, but he does not sustain one-half the injury that is suffered by the daughter. There are obvious reasons why the most injured party should be at best an inefficient prosecutor; and the result is consonant,--that this offence is frequently not punished at all, or, as is the case in our own country, it is punished very slightly, so slightly that in no case does the person of the offender suffer. This lenity does not arise from the venialness of this crime, or of that of adultery. They are among the most enormous that can be perpetrated by man. Of the less flagitious of the two, it has been affirmed "that not one-half of the crimes for which men suffer death by the laws of England are so flagitious as this."* This enormity is distinctly asserted in both the Old Testament and the New: in the first, adultery was punished with death; in the second, both this and fornication, which is less criminal than seduction, is repeatedly assorted with

* Paley: Mor. and Pol. Phil. b. 3, p. 3.-Seduction.

CHAP. 11.]

CREATED OFFENCES.

313

the greatest crimes, and alike threatened with the tremendous punishments of religion.

Such considerations lead the inquirer to expect that the offences which are denounced in a statute-book will bear some relation to the state of virtue in the people. The more virtuous the people are the greater will be the number of crimes which can be efficiently visited by the arm of power. Thus, during some part of the seventeenth century, that is, during the interregnum, adultery was punished with death; and it may be remarked, without paying a compliment to the religion or politics of those times, that the actual practice of morality was then, among a large proportion of the nation, at a higher standard than it is now. No society exists without some species of penal justice,-from that of a gang of thieves to that of a select and pious Christian community. The thieves will punish some crimes, but they will be few. The virtuous community will punish or, which for our present purpose is the same thing, animadvert upon very many. In a well-ordered family many things are held to be offences, and are noticed as such by the parent, which in a vicious family pass unregarded.

When, therefore, we contemplate the unnumbered offences against morality which the magistrate does not attempt to discourage, we may take comfort from hoping that as the virtue of mankind increases, it may increase in more than a simple ratio. As the public become prepared for it, governments will lend their aid; and thus they who have now little restraint from some crimes but that which exists in their own minds may hereafter be deterred by the fear of human penalty. And this induces the observation, that to throw obstacles in the way of increasing the subjects of penal animadversion is both impolitic and wrong. This, unhappily, has frequently been done in our own country. Some public writers (writers not of great eminence to be sure), have taken great pains to ridicule legislation respecting cruelty to animals,-and the endeavours on the part of well-disposed men to enforce almost obsolete statutes against some other common crimes. There are, surely, a sufficiency of obstacles to the extension of the subjects of penal legislation, without needlessly adding more. Besides, these men directly encourage the crimes. To sneer at him who prosecutes a ferocious man for cruelty to an animal, is to encourage cruelty. When a man is brought before a magistrate for profaneness,-to joke about how the culprit swore in the court, is to teach men to be profane.

That which we have called, in the commencement of this chapter, the creation of offences, demands peculiar solicitude on the part of a government. By a created offence, I mean an act which, but for the law, would be no offence at all. Of this class are some offences against the gamelaws. He who on another continent was accustomed, without blame, to knock down hares and pheasants as he found occasion, would feel the force of this creation of offences when, on doing the same thing in England, he was carried to a jail. The most fruitful cause of these factitious offences is in extensive taxation. When a new tax is imposed, the legislature endeavours to secure its due payment by requiring or forbidding certain acts. These acts, which antecedently were indifferent, become criminal by the legislative prohibition, or obligatory by the legis