Abbildungen der Seite

also the repetition of offences ought to be accompanied by increasing penalties.

23. Penalties ought to be such as offenders dread, or they must fail to operate ; the intention of them being to counterpoise the indulgence of a vice, by the fear of a suffering.

24. Imprisonment when applied as an instrument of punishment and correction, ought to be executed strictly and severely. Its duration might then be much lessened, and yet produce more dread than imprisonment excites, commixed as it now is with a large portion of indulgences.

25. The enforcemeni of a penally ought to be rendered as certain and speedy as possible. In proportion as this is done ils weight may be lessened. For instance-A man pilfers a trifling thing upon the motive of iís producing him two or three days' relief from abstinence, or from labor; but if punishment were a certain consequence of the theft, and it imposed on him hard labor, or a more severe abstinence for two or three weeks, he would endure the evil of two or three days, rather than 'that of two or three weeks, (for of two evils it is natural to chuse the least,) and forego the intended theft; but as punishment is uncertain, he does not simply compare the quantity of existing suffering from which the crime might relieve him, with the quaniity of suffering which the punishment of that crime would impose, but he reckons on the chance of such punishment not overtaking him at all; the chances of not being detected, and if detected not being prosecuted, and if prosecuted not being condemned, multiplied together, give him at least a hundred chances to one in favor of impunity, The penalty therefore, to operate on him, must be at least a hundjed times greater than it need be if it were certain to be inflicted; accordingly, we find that for such a theft as we have described, death is the penalty imposed. But even this extreme penalty, under the probability of escape, is found insufficient to deter persons from pilfering. In proportion then as punishment is uncertain, its weight must be increased, and it fails in the object of preventing crimes; and by an inversion of the argument, in proportion as punishment is rendered a certain consequence of crimes, it may be lessened, and will with more certainty prevent crimes.

26. Finding out offenders, vught not to be encouraged as an habitual means of livelihood, in coosequence of its tendency to raise up false witnesses and exciters of crime; but sufferers from, and witnesses of misdoing, ought to be fully indemnified in bringing offenders to justice. There can be no danger in ren dering the testimony of sufferers and witnesses merely not a loss to them.



27. Trial by a single Magistrate.- Whatever superior knowledge and acuteness may be possessed by persons, who make legal enquiries and adjudications the business of their lives, experience has shewn that the wisest Magistrates are open to the bias of political feelings, of self-interest, of favor, or of aversion; that the habit of dispensing punishment, frequently renders men less alive to the finer feelings of humanity, and that uncontrolled power is almost always abused.

And popular opinion attaches even more weight to these objections than they probably deserve. The decision of an individual is generally attributed to some personal motive or sinister bias, by one party at the least; the fear then is of the man, not of the law; the trust is in the favor of the individual in authority, not in the justice of the case. A single Magistrate therefore, ought not to have the power of deciding any question affecting the property, liberty, or character of the subject, unless his decision be subject to an appeal to a jury. With this safe-guard provided, the adjudication of pecuniary fines or short confinement, under regulations of police, may be safely and advantageously entrusted to a single Magistrate.

28. Trial upon written pleadings is the most tedious and erpensive mode of trial.-Of the ruinous and distracting expenses, delays, and disappointments, incident to trials upon written interrogatories, answers, and pleadings, little need be said here. The miseries entailed upon the people of England through proceedings in the High Court of Chancery and the Ecclesiastical Courts, are a reproach to the country, and to the age we live in.

29. Trial by permanent commissioners with discretionary powers in close session, is the worst instrument of trial in every sense.

'These discretionary, or to speak more plainly and correctly, these arbitrary powers, are used most oppressively for some purposes, and for others of more obvious utility they are impotent. Thus it is no uncommon thing to hear of a number of honest people, whose occupations cause them to be out in the night-time, being imprisoned in a watch-house at the discretion of a Magistrate, or even of a constable, without the imputation of a crime, and for no other reason than because they were found, not in an ale-house or dram-shop, but in a cheup Coffee-house, whither they had entered for sober and cheap refreshment; or for young people of good character, who are guilty of dancing, although innocent of any immoral conduct, to be in a similar disgraceful manner dragged to confinement. But if ruffians insult or terrify orderly citizens by their language or gestures, there are neither legal penalties nor discretionary powers to restrain their outrages. There is no law against abuse.

Where the right of deciding is vested in a particular set of men, who examine and determine in private, and according to their will, we have arbitrary power in its worst form. Men will pursue and carry objects under the concealment of an unknown majority at a bench, which they would not dare attempt if they stood individually identified with their acts. Arbitrary power, wherever endured, ought to be exercised by a single individual. Tle is then identifed with his acts, and he knows it; something may then be expected from his feurs, if nothing from his love of justice.

Of late years, a practice has been stealing on, of conferring the power of judging upon selected sets of men permanently, and endowing them with large discretionary powers. The ancient and admirable institution of Trial by Jury is not only by such means gradually superseded; but the protection of the law vanishes, when the imposition of punishments and restraints, and the disposition of the property of individuals, is subjected to the will of Justices, Commissioners, or Select Vestries, without control. This evil is seen to increase as discretionary powers are enlarged and rendered incapable of revision. Its climax is to be found in the arbitrary power of licensing victualling houses, with which the Magistrates of this country, and of no other, are furnished."

30. Trial by Jury, in its genuine form (a special jury is not meant,) is free from all the above objections; a jury of

· The privilege with which Justices of the Peace are endowed, in their respective localities, of preventing the sale of beer in any house, unless furnished with their license, is notoriously and grossly abused, to the most corrupt and oppressive purposes. By allowing the sale of beer on one estate, and prohibiting it on another, they are enabled to raise the fortunes of themselves or friends, and to despoil or depopulate the estate of an opponent, at will. Millions are paid for these licenses, and combinations and monopolies are barefacedly formed by means of them, to enhance the price of one out of the two chief necessaries of life. It has been proved, before the House of Commons, that at the least a penny a quart extra is paid for beer, in consequence of the licensing system; that such penny a quart amounts to a poll tax of 850,000l., twelve citizens taken by lot, from a mass of respectable persons, who are all unobjectionable in the eyes of the parties in litigation, who see the accuser, the accused, and the witnesses, face to face, and who are therefore enabled to judge by their looks, tone, and manner, as well as by their words;

poor of London alone, and between four and five millioos sterling, upon the nation at large; a sum equal to the whole revenue of the English Government in the reign of George the First. With all this power for grinding the laboring poor, and filling the pockets of the license-mongers, not a shilling thus exacted finds its way into the public coffers. The families of many a respectable victualler, under the baneful exercise of licensing power, have been reduced from respectability to pauperism, without a trial, an accuser, or the imputation of a fault. With all this strength for sinister purposes, the discretionary or arbitrary power thus given is impotence itself in the correction of disorders, for which correction the power seems to have been originally created.

on the

ho are assisted in the opinions they form by the exposition of skilful counsel, and by the instruction of learned judges; whose judgment, if misled or mistaken, is capable of revision by a new trial, and who act in open court together (and with all the parties to the suit,) exposed to the free observation of their neighbours and countrymen, offers the most impartial and just tribunal that the wit of man can devise.

Montesquieu truly says, in his “Spirit of Laws,” “ The judiciary power ought not to be given to a slanding senaie, it should be exercised by persons taken from the body of the people, (as at Athens) at certain times of the year, and pursuant to a form and manner prescribed by law, in order to erect a tribunal that should last only as long as necessity requires.” “By this means the power of judging, a power so terrible to mankind, not being annexed to any particular profession, becomes as it were invisible. People have not then the Judges continually present to their view: they fear the office, but not the Magistrate.

31. Trial hy a single Magistrate, by mutual consent, subject to appeal to a Jury:--To combine the great desiderata, celerity and economy, with purity in the administration of justice, is an object of the first importance. Celerity and cheapness are compassed by a trial before a single Magistrate; but the security of the subject ought never to rest on so fallible a test. On the other hand-truth, impartiality, and justice, are well secured by Trial by Jury. But the summoning, assembly, and array of a sufficient body of citizens to constitute a grand and a petit jury, together with the officering of an extensive court, must involve much expense, and a material consumption of time. Now it is conceived thai the desirable parts of the two modes of judging, might be embodied, without including the objectionable features of either, upon the following plan:Let it be competent for a single Magistrate to try, in the first instance, minor offences-such as annoyance, abuse, slander, challenging, common assaults, cruelty to animals, indecencies, solicitation of chastity, seduction, withholding the property of another, pilfering, privately stealing, frauds and embezzlement under the value of 20s., illegal combinations in trades, and sedition-provided the prosecutor, the accused, and the Magistrate, concur in chusing that mode of trial; bis deci

sion, however, to be subject to an appeal to a jury at the quarter sessions, (who in such cases should decide upon the fact, and the quantum of penalty,) provided such appeal be demanded by either prosecutor or accused, within 24 hours.

The advantages of such a jurisdiction, would be various and important. There are many accusations, against which no defence is offered, and yet prosecutors and witnesses are kept many months in suspense, and weeks in attendance, to prove their case before a jury. But the truth might be esta blished equally well in a few hours before a single Magistrate and a great deal of trouble and expense saved. Small thefts, the initiatory acts of regular thieves ; indecencies, abuse, annoyances, and other disorderly acts, which hourly disturb society, and provoke men to acts of resentment which are oftentimes fatal, are generally thought unworthy of the trouble, expense, and publicity of a Trial by Jury, and are therefore suffered to be carried on without restraint, until their fruition or consequences amount to great crimes. Pilfering and embezzlements committed by boys and girls are upon similar considerations passed over, by their parents and masters. But without material trouble and expense, and without exposing the character of the juvenile offender to the lasting disgrace of a public conviction, and thereby rendering his future condition desperate, a trial by a single Magistrate produces a corrective punishment when due; and in the facility of judging thus proposed, there is no compromise of the security of the subject, or of the ends of justice. If the accused prefers a public trial he may object to a trial by a single Magistrate, and so may either the prosecutor, or the Magistrate before whom the case is brought, if either of them thinks the case one upon which a public trial ought to be held. There must be a concurrence of all the three parties, to enter upon a summary trial ; and when the trial is ended, the right of appeal is a further protection against injustice; the prosecutor and accused will both go to the second trial with advantages. The facts alleged, and the witnesses, will be completely before both parties, neither can then be taken by surprise.

32. Appeals to superior powers, and new trials upon good cause shewn, are valuable protections against erroneous judgments, as arising from false evidence, corruption, or error of any kind; but every expense attending them should be made to fall upon the appellant, if unsuccessful, to prevent appeals from being made lightly, or to burthen the prosecutor with trouble and expense. In default of payment, the appellant to be subject to confinement or

« ZurückWeiter »