THE PRINCIPLES OF THE CRIMINAL LAW.* MR. STEPHEN has produced
a book which, though of little or no value for professional purposes, deserves to be very extensively read. Vast as is the improvement which has been effected in our criminal law during the last half-century, much still remains to be done ; and as the alterations which are now demanded,— -such as the appointment of public prosecutors, the institution of a court of criminal appeal, or the introduction of the practice of interrogating prisoners,—are all of a kind which involve a complete change in the theory of our procedure, it is desirable that the principles of criminal law should be investigated by re- formers in a continuous and systematic manner. The especial value of this book in our eyes is that it will enable persons who are not lawyers to consider the subject as a whole. In less than five hundred octavo pages Mr. Stephen has not only given a general outline of the existing law and of the historical ceases to which its peculiarities are due, but has carefully compared it with the French system, and stated where and to what extent in his judgment it still requires reform. His conclusions have not, indeed, to readers of the Saturday Review and Cornhill Magazine, any very great novelty. But views which had before been °Stated by the author only in a fragmentary way are now connected and arranged—and this was precisely what was want- ing. It is no uncommon thing to hear people demanding in the same breath alterations which are founded on entirely opposite and irreconcileable principles—a kind of blunder which ought not to be committed in future by one who has read Mr. Stephen with only ordinary attention. For his style is forcible and perspicuous, and singularly free from the prevailing fault of professional writers—the unnecessary use of professional terms. In a book which appeals to the public this is no slight merit, especially when it deals with a subject from which the general reader has been too often repelled by the difficult language of Bentham, not seldom paradoxical as a thinker, and always un- couth as a writer. It is, moreover, of the more importance to facilitate the study of the subject by laymen, because almost every professional man is under the influence of an indistinct notion that his technical rules have an abstract value of their own. Even where they are unneceseary,,he is as uncomfort- able without them as he would be in the hottest day walking in Piccadilly in his shirt-sleeves. Of course, the more technical the profession is, the more has he been compelled to devote his wind to technicalities, and the more therefore is he wedded to them. This probably is one of the chief reasons why judges in
• A General View of the Criminal Law of England. By James Fitzjames Stephen, ALL, Recorder of Newark-on-Trent. /Luanda!' and Co. 180.
the time of George III, were so inveterately opposed to even the most moderate proposals for the reform of the law.
The weakest part of the book is the historical sketch of the law. The writer's plan did not allow hint to treat this part of his subject at any great length, and it is unfortunately hardly possible to condense history much without depriving it of its value. We believe it would have been better to have omitted this chapter—and have introduced historical explanations into the work when, and only when, they were absolutely re- quired. The weak point of the writer is a love of paradox.
In the very first chapter of his book Mr. Stephen commences by maintaining that all law is, in reality, criminal. "Thus the law is that the eldest son is heir-at-law to his father. This means that all persons except the eldest son of the dead man—if he has one —arc commanded by the sovereign power not to exercise pro- prietary rights over the land which belonged to him unless they can show a title to do so. If they should exercise such rights
and should fail to show such a title, the sovereign would com- mand the sheriff to give possession of the land to the heir-at-law, and to make the intruders pay the costs of the suit Thus the ultimate meaning of the phrase, by law the eldest son is heir to the father,' is that the sovereign commands all persons to act upon that rule, and will,if necessary, force them, by the terror of legal punishment, to do so." Of course, Mr. Stephen goes on to point out that the definition of crimes may be" conveniently re- stricted" to acts forbidden by law under pain of punishment im- posed for public purposes. Now really this seems to be a most worthless and unnecessary subtlety. The distinction between civil and criminal law is that the object of the one is to give re- dress, and of the other to inflict punishment. This is a substan- tial distinction, and what is the good of confusing people by first calling redress punishment, and then distinguishing between punishment for the sake of the injured party and punishment for the sake of the public ? The contention is a mere exercise in dialectics, just as when the author contends that there is no dif- ference between direct and circumstantial evidence. For a refu- tation of the laboured ten pages in which Mr. Stephen supports this last proposition, we need only refer our readers to the paper* in which this paradox was considered when it originally appeared in the Cornhill Magazine. But it is very much to be regretted that fine-spun theories of this kind—which have no practical value of any sort—should be introduced into a subject which it is particularly desirable to keep clear of refinements of all kinds.
Perhaps the most valuable feature of Mr. Stephen's treatise is the elaborate comparison which he institutes between the English and French system of prosecution for crimes. A criminal trial may be conducted as a litigation or an inquisi- tion. In the first case, a private accuser demands the punish- ment of the accused, and the judge moderates between them ; in the second, the public authorities institute an inquiry into the circumstances of a crime in order to discover the criminal. The latter is the view taken of the matter by those nations whose procedure is founded on the Roman law. The former was the theory of the Anglo-Saxons, in common with the other Northern nations, a curiously minute picture of whose forms of trial may be found in Dr. Dasent's translation of the Icelandic legend of "Burnt Njal." Of course, after the Norman Conquest our own procedure took the form of an inquisition, and the various obscure steps by which the old litigious spirit subdued the in- quisitorial form, might, if carefully explained and narrated, afford a very fair measure of the extent to which the absorption of the Norman aristocracy into the mass of the population had been effected. Mr. Stephen thinks It self-evident that the in- quisitorial theory is the true one, because "a public trial ought to be a public inquiry into the truth of a matter affecting the public interest." At the same time he allows that the beat manner of conducting a trial is to treat it mainly as a litigation. But if the theory of the inquisition be right, it must of necessity be the best in practice. This error is, we think, to be found in a faulty definition of the inquisitorial form of procedure. He defines the one system with reference to its form, and the other wrongly with reference to its object. But the object of both is the same ; truth is just as much the object of the litigious as of the inquisitorial procedure. The distinction between the two is in the way in which they endeavour to arrive at truth. Now it seems to us very clear that the best way of discovering a criminal is not the appointment of a public official to investigate the matter authoritatively. That official must be a human being—he will inevitably forin a theory at an early stage of the inquiry—and when- he has formed his theory * Spedator, Nov. 22, 18132. be will, nine times out of ten, confound his theory with truth. Then he begins to abuse the powers with which lie is necessarily entrusted. The person whom he assumes to be guilty is kept in solitary confinement, is repeatedly cross-examined, is confronted now with this witness now with that, in the hope of torturing him into a confession. If the theory turns out by good luck to be correct, of course there is no great harm done ; but under such a system even a confession affords no satisfactory proof of guilt. Rosalie Poise confessed—and she was not guilty. Such an atrocity as this is impossible under our system, which, never- theless, has its faults. As Mr. Stephen remarks, it is nearly per- fect where money is no object either to the accuser or accused, and the accuser cares to struggle for a conviction. But where this is not the case the prosecution is often got up in a very slovenly way, and the prisoner, if be is poor, has a burden thrown on him which he is quite unable to support. The remedy, however, is easy. If the Crown would allow the costs of prose- cuting on a little more liberal scale, and would pay an acquitted prisoner his costs when the judge certifies that he ought to have them, these evils would almost entirely disappear. We also agree with Mr. Stephen, that it ought to be a recognized part of the duty of the chief constable to prosecute, where no private person is willing to do so. As a matter of fact the police so prosecute now, and they ought to be under the control of their superior officer, and responsible to him, and he to the public. And it must be added that only one who has observed the ardour to obtain a conviction by which these volunteer prosecutors are in- fluenced, will fully comprehend what is the effect of professional amour propre, and what chance of justice a prisoner has in the hands of judges and a public prosecutor who have all, as in France, adopted the theory of his guilt before the trial.
A much more difficult question is whether the prisoner should be interrogated at his trial. The devotees of the litigious theory have proposed to make him a competent witness. But the spec- tacle of a man, speaking under the obligation of an oath, but who, nevertheless, cermet be expected to tell the truth, would be a public mischief. And whenever he did not avail himself of the right, it would be almost conclusive against him. On the whole, we agree with Mr. Stephen that the prisoner should be ex- amined by the prosecuting counsel after the evidence has been given, and that the object of the examination should be to call his attention to the points which tell against him. It is almost absurd to tell an ignorant boor to defend himself by a speech, and a few questions put in a humane way would be positively an ad- vantage to an undefended and uneducated man. They would often elicit a defence which he is quite incapable of expressing in a continuous form. It is curious that this practice of interro- gating prisoners was a very favourite one with that most humane &judges, Sir Matthew Hale, and did not entirely disappear from the magistrates' courts till 1818. It is better, however, to keep the character of the judge entirely distinct from that of a prosecu- tor, and no prosecuting counsel in England ever acts except as a public officer aiming at the manifestation of truth—at least with- out incurring the rebuke of the judge and the censure of the profession. There would be very little danger of an unfair and harsh examination.
It is impossible within reasonable limits to touch on a tithe of the numerous questions of interest which Mr. Stephen raises ; but we heartily recommend his book to the public. He is in- etructive, even where he is wrong.
Previous page
