Administration of the Criminal Law.

Evening Star, Issue 726, 2 July 1887, Page 2 (Supplement)

Administration of the Criminal Law.

At Melbourne last week Mr Justice Williams, of the Supreme Court Bench of that Colony, delivered the following highly instructive lecture on “The Administration of the Criminal Law and the Treatment of Criminals”:

“LOVE THY NEIGHBOR.”

His Honor said: During the last twelve years of the present century I think it may be safely said that extraordinary progress has been made in the endeavor to fulfil the great moral precept “ Love thy neighbor.” There is a feeling, amounting to a conviction, gaining ground and growing up amongst us day by day that man and woman have some loftier and nobler object to live for than that of living for self, whether from a religious or a worldly point of view. For Ido not shrink from saying that the man or woman who spends his or her life in anxious tribulation about his or her eternal welfare, or who is wrapt up in and only concerned with working out bis or her o<vn safety in fear and trembling, is not one whit less selfish than the man or woman who lives in pursuit of selfish pleasure, ease, and enjoyment. What, then, is that loftier and nobler object, which not only makes life worth living, but which warms and brightens life? What is that motive which may incite us to think and reason, strive, labor, and act humanely and unselfishly, with loving and willing hearts and minds, which tends to make us bury self iu the vast vineyard of humanity ? It is this; by the best efforts of our reason, by our honest and determined exertions, by the willing sacrifice of ourselves, to minimise, and wherever it be possible to eradicate, those moral and, nhyaicnl. ailmenf? side and in every land are weighing down. THE ADMINISTRATION OF CRIMINAL LAW-.

It is very seldom that a point of law occurs in the course of criminal trials which any average lawyer is not perfectly competent to deal with. In a word, there are comparatively no legal difficulties in its administration. In the trial of civil cases, on the other hand, innumerable, and often very intricate, points of law arise in the course of a sitting, which the presiding Judge, generally speaking, has to settle and decide. But though the exposition of the criminal law involves little or no legal difficulty, yet in cases where prisoners are not defended by able and prudent counsel there is a very heavy twofold responsibility oast upon the Judge. Some Judges do not, or affect not to, feel those responsibilities. I confess I do, and the burden of them at times presses upon me very heavily, and I believe that the wisest, beat, and most impartial Judge that ever sat upon the Victorian Bench (I mean Mr Justice, now Sir Robert Molesworth) was similarly affected. When prisoners are defended fay skilful and able counsel the responsibility becomes reduced, and all is in these cases comparatively plain sailing for the Judge till he comes to the sentence. THE RESPONSIBILITY OP DEALING WITH CRIMINALS. Now let me tell you very briefly what the nature of those responsibilities is. It is all very well to say that the responsibility of the Judge only begins at the sentence, and that the responsibility of acquitting or convicting rests solely with the jury. This is not the fact where prisoners are not defended by counsel, or are defended by counsel who are learning their business at the risk of their clients’ lives or liberty. In those cases a Judge ought, in my opinion, to watch more narrowly and dissect more carefully thane ordinarily the evidence for the prosecution —(hear, hear) —and, to the best of his ability, as the evidence proceeds, form a judgment as to the prisoner’s guilt or innocence, for in such cases the tenor of the Judge’s charge to the jury must naturally very gravely affect the result of the verdict. A conscientious Judge must, therefore, it seems to me, in cases which are not clear either the one way or the other, and where the prisoners are undefended, be painfully and anxiously impressed, not to say oppressed, with the responsibility of forming a judgment as to guilt or innocence which must necessarily color his charge to the jury upon questions so momentous as those which involve the life or the liberty of a fello v being. THE DUTY OF SENTENCING. But beyond all this there is another most important and serious duty which devolves upon the Judge in every case in which a verdict of guilty is recorded. That is the duty of sentencing. How supremely difficult it must be inflict a sentence which is adequate and just, wholesome in its effects, and yet merciful, must be apparent to every one who has studied the sentences that are, month after month, pronounced in our courts of criminal jurisdiction. As an illustration of what I am referring to, take that most elastic of all the offences known to our law, that of manslaughter, A man or a woman has been killed by a blow or a fall in the course of an angry scuffle or quarrel or brawl; the case bears a somewhat serious aspect until the medical evidence for the prosecution is adduced; then it appears that the brain of the deceased (not, of course, within the knowledge of the accused) was in such a diseased state that death has been produced by a blow or fall which, in 999 cases out of 1,000, would have produced no serious effects whatever. The cursory reader not in possession of the medical evidence, or only imperfectly comprehending its bearing, would probably jump to the conclusion that the case was one that demanded heavy punishment, whereas the fact brought to light by the medical evidence would undoubtedly, and very properly, reduce the offence to a low degree of manslaughter. On the other hand, for a comparatively light offence a severe sentence may occasionally be passed, owing to the offender being a confirmed and incorrigible criminal. THE NATURE OF PUNISHMENTS, The first grand principle that I start with is that in these days punishment is to bo reformative, where reformation is possible, as well as deterrent.—(Hear, hear.) The next is this, that offences against the person are, as a rule, to be more severely punished than offences against property—(applause)— and, passing by the offences of mnrder and aggravated manslaughter, that the class of offences against the person to be most severely punished tire offences against women and children. In the present day the soundness of these principles is, or ought to be, so obvious that, addressing such an audience as that now before me, I think I may safely leave these three prim ales at any rate to speak for themselves, snees against the persons of children of tender years cannot, in ipy opinion, be too

severely punished—(hear, hear}—-for they are generally speaking, of a description which not only inflicts physical injury, bnt, what is ten times worse, may pollute or tarnish the mind of a young and innocent cmld for life, lam not an advocate for the lash in cases in which its tendency may be to cause the patient to lose his self-respect, bat, in my opinion, ruffians who commit such offences as those I have just alluded to can have no self-respect to lose.—(Hear, hear.) If the infliction of Ihe lash does them no good, it certainly can do them no harm.—(Applause.) FIRST CONVICTIONS. The fourth principle which I venture to enunciate is this—that if the person convicted has been convicted for the first time in his or her life, be he or she young or old, and has up to the time of the commission of the offence in question led an honest, reputable and industrious life, his or her previous good record should stand the prisoner in good stead in his or her hour of trial, and that, provided the offence be not a serious offence against the person or property, as for instance, robbery with violence, offences against the persons of women and children, aggravated manslaughter, wounding with intent to do grevious bodily harm, arson, etc,, passing by for the moment the probationary system, or substitutes for it, the sentence should in point of duration be decidedly short, but in character severe, so as to impress upon the mind of the prisoner, wim has so transgressed for the first time in his life, two facts :•(!) that his previous good conduct and good character are placed to his credit, and (2) that breaking the criminal law entails upon the offender bitter and painful punishment.— (Applause.) At the same time the offender should be distinctly told that allowance has now been made for his previous good conuuct and good character; that the present conviction will be recorded against him: and that if he again transgress the criminal law his sentence for the second offence will be loaded by reason of his former conviction, and that the credit for good character has been wiped out by the allowance made under the sentence inflicted for his first offence. DISCHARGING OFFENDERS WITH A CAUTION. . In the absence of a probationary system—in the absence of any gaol being set apart for the reception of this class of offenders, many of whom have made a slip in an hour of temptation, or under pressing necessity—is it an unreasonable or wild thing to do to discharge such prisoners after binding them overby their own bond, and that of substantial sureties, to come up for sentence when called upon to do so ?—(Applause.) I will not discuss the qnestion of jurisdiction, for 1 unhesitatingly assert that Judges have jurisdiction to so act if they think fit. THE PROBATIONARY SYSTEM. Why should not the probationary system, or its reasonably efficient substitutes, discharging prisoners upon their own bonds, and that of sureties, to come up for sentence when required, and letting prisoners out on bail at call, foe applied to the offender of middle life, or of advanced years, bearing always in mind that he mnst come within the particular description of offender already mentioned ? It has often struck me that we, none of us, make sufficient allowance for the man or woman who commits a crime for the first time in his or her life under the pressure of necessity, or under sadden and strong temptation. Think for the moment of the credit that is due to those men or women who, year after year, work and toil for the purpose of earning a bare subsistence for themselves and their children; who are sometimes unable to find work; who travel in .itweary both at ~ heart arid In body, and then often fail to find it, and yet keep honest. Think of those fatbersjHidi totharn who, loving their children, see them sickening, and dwindling away for want of sufficient nourishment, and yet refrain from crime. What credit is there to us that we break not the law, we who live in comparative comfort, and who undergo none of these hardships and privations either in our own persona or in the persons of those near and dear to us ? None; but surely all honor and all glory to those other men and women so tried, so sorely tempted, and yet honest through aIL Then if such a man or woman at the age of fifty or sixty years does slip, does succumb, after resistance move or less protracted, does not the half-century of honest toil and good citizenship, which stands to their ..credit, entitle them at any rate to the same consideration, to the same chance, as the younger and far less severely tried offender. —(Applause.) Why not give them both the chance to redeem themselves—the one chance after the one slip ? HABITUAL. CRIMINALS. The fifth principle is this—that habitual criminals, seasoned offenders, should be most severely punished. Indeed, I have now almost come to the conclusion that the man, the greater portion of whose life has been devoted to preying npon society, who has proved himself to be incorrigible, had far better be imprisoned for life; otherwise, as soon as he regains his liberty, so soon will he be found again planning and committing fresh crimes. Why should not incorrigible offenders of this description be prevented for all time from preying upon their fellowcreatures, and why should they not be thus prevented from doing that which many of them d# contributing to propagate and breed criminals ? CRIMINALS WHO ARE NOT SEASONED. The sixth principle I endeavor to act i ! upon is this ; When the psrson who has been convicted is not a first offender, bnt also not an habitual or seasoned criminal, in other words, where a reasonable hope may be entertained of his being reclaimed, to make the term of imprisonment in gaol comparatively short, , % but the character . of the imprisonmeqt very severe, and, at the same time, as far as possible, reformatory. It is for the purpose of dealing with prisoners of this description that I am desirous that the Judges should have jurisdiction to inflict as a part of the sentence separate confinement as distinguished from solitary confinement, for the reason that separate con-, finement is both severe and reformative |n its character, whilst the only feature of solitary confinement is its severity. The Judges at present, however, having qb power to inflict separate confinement, are obliged, fop the purposes of making a sentence, whether of short or long duration, severe, to inflict solitary. Let roe, however, he not mis? understood upon the subject of the infliction of solitary confinement as part of a sentence, In the case of habitnal, hardened, incorri? gible criminals who hftve not committed offences for which the lash could be in? flicted, I firaily believe —in fact | may say X know—solitary confinement to be the only portion of a sentence that they feel in the slightest degree. To this class of criminals prison life, without solitary confinement, is absolutely nothing. They have become habituated to it A prisoner of this description, who has been sentenced, say, to a term of ten years, feels that as soon as he has served a few months in the A Division, where he is subjected, by virtue of an utterly illegal gaol regulation, to a course of separate confinement, the unpleasantness of prison life is over; and when he emerges from the C Division into the outer world again, he does so with the impression npon his mind that Pentridge is not half a bad place. But if his term of imprisonment be dotted with doses of solitary, he will leave the prison gates with a very different impression. Had I,'therefore, the power to give separate confinement, I should be disposed to inflict solitary only in the cases of habitual, hardened, and incorrigible criminals; but, except in those cases which entail the infliction of the lash, whenever a sentence is passed I think a feature of it should be either solitary or separate confinement, for the purpose of making the prisoner, whether his sentence be . short or long, realise the fact that tiro consequences of crime are painful and bitter. Mr Wifeless: “Mike, you rascal, what are you doing there ? HoWcan you dare to wipe my goblets with my handkerchief f Mike: “ Sure, an’, sorr, it’s not your bankerchnff at all, at all. It’s moine.” A clergyman who married four couples In one hour the other evening remarked to a friend that it was “ pretty fast work.” “ Not very,” responded the friend, “ only four knots an hour.” ...