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FACTS AND REFLECTIONS
CRIME, CRIMINALS, AND JURISPRUDENCE.
BY THOMAS BEGGS.
most active and practical minds of the age. The discussion is most im
portant, as it not only affects the treatment of criminals, but the whole theory of Punishment. The present century has witnessed several relaxations in in our penal code, all of them attended with sufficiently favorable results to justify further steps in the same direction. An entire remodeling of our jurisprudence is required. It would be a misnomer to call it a system. At present it is a huge, cumbrous, expensive, and incoherent machinery,-a thing of forms, fictions, and precedents. Lord Brougham has devoted the energies of his mind, with creditable skill and industry, and for him, marvelous steadiness of purpose, to the labor of law reform. And not without success.
He has cleared away many palpable absurdities, purged the higher courts of few puerilities, and abolished some tedious processes. It is after all only removing a few pimples, while the grosser blotches remain. Local applications can do little where there is a virulent and deep seated malady. The constitution is unsound. A multiplicity of laws is in itself an evil, but when each of them has been made without any regard to the whole of which it was intended to form a part,-in fact, without reference to any general principle, --confusion was inevitable. Statutes have been passed as temporary expedients, or to meet particular emergencies. There has been, among our legislators, a perfect mania for law-making. Did any particular vice develop itself, it was the pretext for a new penal enactment. The trade of law-making, and that of law-interpreting, florished—the security of property and life, and the public morality, were minor considerations. The faith in physical force, in legal craft, is giving way, and men are seeking, therefore to alter and amend, to modify and correct, a vicious code of laws. The imperfections, the glaring inconsistencies, the monstrous errors, are patent to all the world. Law is a great lottery, and nothing more. The chances are generally in favor of the dextrously dishonest, and against the simple honest man. A court of law, instead of being a tribunal where all engaged are anxious to elicit the truth and obtain the fullest evidence, is an arena for the mere trial of skill. You find barristers bullying the witnesses, and trying every means to confound, mystisy, and bamboozle the jury. It is their profession to make the worse appear the better reason. Eloquence and cunning are employed to dazzle and confuse, if not to convince and convert. Law, and not justice, for the two things
are often as distinct as falsehood and truth,-is the arbiter. Counsel build up their cases on a pyramid of precedents, and fortify them with a buttress made up of authorities. The client, of course, is at the mercy of these legal combatants. The laws are couched in a jargon that rivals the unknown tongues. A plain man might as well attempt to decypher the hieroglyphics on an Egyptian monument. He can only wonder and submit. The wise man puts up with his wrong, and does all be can to keep out of court.
This rage for making laws has been most mischievous. Lord Bacon complained, in his time, of the multitude and intricacy of the laws. They were comprized in two volumes, and the laws of a whole century would scarcely fill a volume. Suppose his shade were to walk into the British Museum some fine day of 1850, what would be his surprize to find thirty six volumes of English law, and these increasing at the rate of one hundred statutes a year. Our criminal code has been remarkable for the number of offences created under it, and the severity of the punishments. A writer quoted by the Eclectic Review says :-"It is one of the most disgraceful facts ever recorded in the history of our race, that whilst in the reign of the Plantagenets four offences only were made capital; in the time of the Tudors twenty seven; and under the sway of the Stuarts thirty six ; there were one hundred and fifty six additional offences made punishable by death, during the reigns of the first four sovereigns of the house of Brunswick !" At length the public mind became sickened by the parade of death. Jurymen refused to convict, preferring the sin of perjury to that of becoming the ministers of laws, which rivaled in their spirit and letter, in their fierceness and barbarity, the bloody code of Draco. Men were found in the legislature to resist the enactment of sanguinary laws, and to insist on the abolition of many existing
A milder spirit once awakened, it proceeded in its work of mercy. At the commencement of the present century above two hundred capital crimes
the statute book, among which were, the stealing to the value of five shillings in a dwelling house, consorting a whole year with gypsies, and cutting a stick from a plantation. The number of capital offences are now reduced nominally to five, actually to one, that of murder. No one contends that there is less security for property. We hear of no wish to return to the severity of past legislation. True, the attempt to place the gibbet along with the pillory, the rack, and the whipping post, is resisted. Humanity, however, protests against the continuance of capital punishment, and her voice has already been responded to by thousands of men. The cry is gathering strength and emphasis. The strict defenders of the gallows on the Treasury Benches speak in less decisive tones. The question is put, there at least, on its proper ground—and from that there is hope. The only unwincing defender of death punishments is the bigot. He never yields and never changes. He erects his structure upon his solitary text, and to save that text he is willing that all else should perish. The benign principles of Christianity—the safety of human life-are mere trifles, so that his favorite text may be saved. Those who narrow down their discussions on this subject to the limits of a single doubtful text, and who choose to remain in dark
a ness notwithstanding the splendor and sunshine of a more perfect day—we leave to their mole-like labors. We belong to the present and the future, not to the
past. We prefer to toil on with the hopeful pioneer, rather than linger in the rear with the lame, the halt, and the blind.
It is well for the Reformer, of whatever class, when momentarily discouraged, to look back upon the past. He will derive instruction from the review-he will obtain consolation-he will experience a revival of hope. He will find that every great achievment in the history of our race has been accomplished in the face of difficulty or danger. The facts of science which admitted of the clearest proofs, have been assailed by the bigot's croak. The builders of systems, and the defenders of creeds, have met the announcement of new physical truths with the same weapons that are now used against those who assert the sacredness of human life. They did not sit down to examine the fact by its evidence—they measured it by their own interpretation of texts. The world is but a revelation, an elder revelation, of the Almighty; every new development of its wonders, another claim to the admiration of mankind. The men that make infidels and doubters, are the men who bring the Bible to test a new fact in astronomy or chemistry, or to oppose a moral truth approved by reason and conscience. Look at the history of persecution. In the field of physical science stand prominently forward the names of Galileo and Harvey—in the treatment of disease Dr. Jenner and the illustrious Pinel-while in moral science and the work of humanity the martyrs are innumerable. Men seek to defend war, slavery, and despotism of every kind and degree, and throw over that defence the sacred sanction of scripture! Priest and dogmatist take their stand upon the Bible. They succeed for a time in rolling back the tide of improvement--they do more, they lower the authority of the book which ought to be a rule of holy life and conduct.
As a specimen of 'the good old times,'--the persecutions for witchcraft may be noticed. At one time our penal code was burthened with statutes against witchcraft. In the reigns of Henry VIII., Elizabeth, and James I., statutes were passed making witchcraft a capital offence. In about one hundred years (from 1600 to 1700) some sixty thousand persons were executed for this crime. In 1735 the last of these penal statutes was repealed. The seceders of Scotland, in their annual confession of national sins printed in an Act of their Associate Presbytery at Edinburgh in 1743, enumerated as a grievous error the repeal of these statutes contrary to the express laws of God.'
There is an instance more kindred to our subject—the treatment of insanity. Formerly it was the practice to subject the poor patient who had a partially dark or totally beclouded mind, to a treatment at which humanity shudders. He was shut out from the light of hope, and almost from the light of day. He was imprisoned in a dark and dismal cell, chained and beaten. In fact, a treatment was adopted to cure insanity, which would have driven a sane man mad. Sir A. Halliday describes a visit to the Edinburgh Bedlam in company with Dr. Spurzheim. They found fifty four persons, two thirds of them females, with scarcely a sufficiency of “rags to cover their nakedness, and even the shreds that remained appeared not to have been cleansed for months.” In a distant cell we discovered a woman worn out by the violence of her disease, stretched on a straw pallet, and sinking rapidly to the grave. A rat was perched upon her bed. I will not affirm that this animal attempted to mangle the exhausted body of the
dying maniac, but the sight was horrible.” Dr. Spurzheim observed, after sight of all this misery, "That palaces were provided for the accommodation of the greatest villains and disturbers of society, while these unfortunate beings were left in misery, and I am a living witness that the swine of Germany are better cared for." A number of philanthropic minds revolted at this treatment, and endeavored to induce a milder one. They suggested the propriety of freeing the maniac from his chains, and substituting kindness for harshness and the whip. They even spoke of the possibility of conquering the malady in many instances, and restoring the sufferer to the useful avocations of life. The proposal was, of course, pronounced Utopian--the dream of a morbidly benevolent mind. The bigot denounced the attempt as impious,--as an interference where God had laid his afflicting hand. These ignorant zealots overlooked the fact that this argument would apply to all treatment of disease; to cholera or small pock as well as insanity. The immortal simpleton who has lately informed the world that the cholera was a visitation of providence for the omission of the words Dei Gratia from the new Florin, is a worthy member of this class. At length Pinel succeeded in his benevolent design. He was neither discouraged by the warnings of friends nor dismayed by the opposition of those who decried his attempt. This man belongs to the race of conquerors. He warred against bigotry, ignorance, and cruelty, and his conquest was no mean one. His name will occupy a large place in history when men have learnt to value their truest benefactors. Towards the end of 1792 he succeeded in inducing the authorities of the Bicetre (after having in vain appealed to the government) to grant him permission to unchain some of the maniacs. His friend Couthon, a member of the Commune, duly cautioned him as to the danger of his attempt. He received the warning with respect, but did not desist from the undertaking. He commenced, and the experiment was successful and safe. In the course of fifteen days he released fifty three of the persons confined in the Bicetre. Tranquility succeeded to tumult, and in many cases the most furious became the most tractable. One man, a soldier in the French Guards, who had been remarkable for his furious conduct, on being liberated, became obliging and attentive, and during the remainder of his life manifested a most ardent devotion to his deliverer.
From that time began a more humane treatment of insanity. It is now treated as a disease over which medicine and regimen have a fair control. And what is the result ? Very many are sent back to the bosoms of their families—to social intercourse—and to their usual occupations. Under the old treatment no such results are recorded, nor were they ever expected. Even in 1814 we find in Bethlem Hospital the system of chaining continued, in cases considered incurable. In answer to the question “What constitutes an incurable case ?” the following answer was given :-“After a residence of twelve months, if such person has exhibited symptoms of malevolence, or is mischievous, and it is considered necessary that society be delivered from them, they are declared incurable.” Few cases are now pronounced absolutely incurable, and in those cases where the malady is beyond the reach of medical aid, there is the consolation to friends and relations, that the poor sufferers are not left to struggle with the most melancholy disorder that can afflict humanity, in the midst of darkness, cold, and filth, and subject to the brutal treatment of hardened and ignorant keepers.