LIFE IN AN ENGLISH PRISON.
THE STORY OF A VICTIM
CHAPTER XXV THE CRIMINAL LAW.
Without a “ buyer,” a professional thief never thieves. His instinct is to get rid of property within a few hours of stealing it. To do so he must know where it can be disposed of. In all great burglaries, while the burglar is affecting hiis entrance, the “ fence” has his furnace lit, so as to melt down the gold and silver plate, or he is waiting by appointment with his money to purchase the goods left at his warehouse. Once let it be known that the burglar can procure his liberty at an earlier date by betraying his capitalist, and the trade will be instantly at an end. He will have no compunction of conscience in giving this evidence if it is made worth his while, and if the police had to hunt down the criminal capitalists there would be no criminal laborers. The capitalist “ fence ”is too wary to buy from a new customer except ho is “ properly introduced.” The legist will say that this is a dangerous game—that the liberty of the subject will be at the mercy of the uncorroborated word of the most degraded characters. Granted that is so. Why should society care about the way in which one set of social marauders should extinguish their like! If the trade is made impossible, owing to the destruction of confidence between buyer and seller, there will bo an end of the trade, and society will have cut out the cancer which is daily spreading wider and wider. I shall be told this is unconstitutional. My reply is that the principle is already in existence. In the Debtors Act, which is a quasicriminal statute, a person, whether bankrupt or solvent, is amenable to a prosecution if he incurs a debt by fraud. If within four months of bankruptcy he obtains credit improperly the creditor is not obliged to establish the case against him. The onus is left with the debtor in proving his innocence. Let this principle be adopted in our Criminal Courts, and then when there is fraud conviction will certainly follow. Give equal justice to the accused. Let him be examined, not as by a French Juge d’lnstruction, whose sole desire is to convict him of guilt, but as an examination before the Scottish Procurator Fiscal, where he can make his statement and have it laid before the Court. By all means give facilities for the accused to prove his innocence. The majesty of the law, which investigates to prove, if necessary, that the accused is guilty of a crime, should grant equal facilities to demonstrate that the accused is innocent, and the wealth of the Treasury should be at the service of the humblest person accused to enable him to establish his freedom from the accusation—not by technical pleading, but by the production of whatever evidence will tell in his favor. If there is one thing in English criminal jurisprudence which is cruel, unmanly, and cowardly, it is that desire to hunt down a man without giving him an equal chance of rebutting the evidence against him. It is a brutal farce to tell a penniless man who is committed for trial that he can give the names of persons whom he desires to be called as witnesses on his behalf when he has no means of ensuring their attendance, or of having their evidence collated by a solicitor acting on his behalf. Every man charged with an indictable crime ought to have means placed at his disposal to rebut the accusation against him upon his making a declaration that he requires such assistance. The liberty granted should be made conditional upon the fact that if his guilt was proved a much heavier penalty should be inflicted for putting the country to such an expense. Why should a defendant in a Criminal Court be protected when under like circumstances he would be interrogated in a civil Court ? Either party to a civil action is exposed to interrogation as to all matters relating to the cause in action. Why should not the same rule be adopted when a man is charged with a criminal offence 1
There is another improvement which, on behalf of the offended taxpayer, ought to be made a part of every criminal sentence. The cost of the trial should be ascertained, and the convict should pay the penalty as part of the punishment inflicted, or have it registered against him as a judgment debt due to the Crown. These costs should be subject to taxation, as in a civil case. If this principle were adopted it would put a stop to all unnecessary defences where a person was guilty. It would save an incalculable amount of public time. A person guilty would plead guilty, while an innocent man, with facilities for proving his innocence, would stand a better chance of procuring his freedom. Then, again, in cases of injury to the person, where either an acquittal or conviction takes place, the right to a civil action is “ barred.” It is different in France. Frequently, in cases of manslaughter or murder, where an acquittal takes place, the jury fixes the payment of damages with an annuity to the family of the deceased, and it is an act of justice which should serve as a precedent to ourselves.
What is required in our criminal system is the same simplification of facts as distinguished from technicalities as we have now in our civil law. If this is possible in Scotland, why not in the rest of Her Majesty’s dominions 1 With us there is an unnecessary technicality in crimes. It is a misdemeanor in itself to compound a felony. Yet it takes a lawyer considerable trouble to find out the difference between those two classes of crimes. A misdemeanor may be compromised, or it may be punished with either fine or imprisonment. Formerly there was a profound difference between the two classes of offence. Now there is none of any practical moment. A misdemeanor is bailable as a right; a felony is not bailable in the like manner, but the former may be a great deal more serious than the latter. Until 1871 the distinction was kept up in law, but was overturned by an Actot Parliament by inference. A misdemeanant could always after conviction make a disposition of his property, and even while undergoing imprisonment could give a power of attorney to any person to act
on bis behalf. A felon was not so privileged. Fraction lly the necessity seldom arose, because it is very rare that those persons who are possessed of property are even arraigned for a serious crime ; and as a person could only he sentenced to transportation or penal servitude after the trial at the Assizes or .Sessions, there was time at their disposal, after commitment by a magistrate and before indictment, to make a settlement of their property. Old lawyers who practised in the bygone era of technicalities still hand down traditions that it was part of the practice of reversionary heirs and re-mainder-men of entailed estates to cut out a nearer line of descent by getting some wild young fellow charged with a felony which might cost a month’s imprisonment. A petty larceny was insufficient, hut many paltry offences which were bracketed in the lawyer’s hihle as felonies were sufficient to incapacitate an heir from inheriting. Just as in a sale of real estate it used to be necessary to search in the Common Pleas, and now in the High Court of Justice, to ascertain if any judgments were registered which affected land, so the pettifogger used to inspect the Assize and Session rolls to discover if the next claimant to real property had ever done any act which entailed corruption of blood and forfeiture of his rights to the Crown. It was the duty then for the Sheriff to hold an inquisition to protect the regal rights, and as he shared in the plunder he was assiduous in his inquiries after the estates of those who were convicted of felony. It was here that he was forestalled by attorney, whose undoubted privilege and sacred duty has ever been to permit no person except himself to rob his client. When he has gorged himself he contemptuously resigns his prey to the jackals who hang about as bailiffs. Upon this ancient maxim of the law the criminal’s advocate who has been retained to defend the accused has ever taken one invariable course for the promotion of business. He appears for the defence, and defends not upon the merits but on technical objections, which may delay the course of justice. This procures an adjournment —with another fee. When this method is exhausted, he gravely recommends his client to “ reserve his defence,” and his victim is committed for trial. The client getsbewildered. Therealexplanation is that for appearing before a magistrate a couple of guineas is generally considered a fair fee. The moment a man is, in the language of the thief, “faltied,” or fully committed, the legal Torquemada commences his torture. If the victim is poor, £lO is the least demand for a Session case. If money is plentiful £25 is a fair sum. Steam is got up in the legal factory. Money is daily required for deposition, subpoenas, witnesses, briefs and counsel. In sight of a prospective conviction powers of attorney used to be prepared, and the legal demand would only be exhausted by the money at the defendant’s command. Had the man been discharged by the magistrate there would be no pretence for this outlay. For this reason lawyers, as a matter of business, nearly always persuade their clients that the case' 1 must go for trial,” and they do their best to send it there. When this purpose is accomplished the next step is “ the indictment.” This nefarious instrument of legality is the most wicked device ever conceived to baffle the common sense of a jury and bewilder a defendant.
It is presented to a grand jury, a body of men who once had important duties to perform but who are now a relic of hoary antiquity. Once a grand jury had functions which enabled them to supersede the vindictiveness of a justice of peace, who had maliciously or without just cause committed a man for trial. At the present day public opinion is a better protector of the rights of the injured. Before the grand jury the indictment previously prepared from a barbarous jingo of mediieval technicalities is brought forward. It rests with those gentlemen to declare whether a true bill has been found or not, Universal experience tells us that the grand jury never ignore a bill unless they have been advised to do so by the Chairman, Recorder, or Judge. The indictment to a prisoner is simply unintelligible. It is meant to be so. It is composed of words which are obsolete, and describes offences by names which are unknown to laymen. Instead of saying that John Jones stole a purse, it describes that John Jones wickedly, maliciously, by fraud, covin, and deceit, against Her Majesty’s peace, did on a certain day do something or other contrary to law. I have seen indictments containing several yards of parchment containing forty or fifty counts each, varying an allegation so as to ensure a conviction by bringing it under some Act of Parliament. This necessitates employing two lawyers at least, and expending a certain amount of money. A copy of the indictment cannot be obtained until it has been before the grand jury, as a rule no prisoner can see a copy until within from one hour to a day prior to his trial. As Quarter Sessions seldom occupy more than two days, and as the criminal business is taken on the first day at the Assizes, no defendant has time to study the indictment on which his liberty depends. In this matter, the Scotch law is immensely more just than our own. If we compare the difference between the two codes of jurisprudence the benefit will be at once perceived. With us, a man when he is arraigned in the Court, receives the first intimation of what he has to answer when the associate or clerk publicly reads the indictment, when it is impossible he can understand. He is next confronted by witnesses who he may have seen previously when before the magistrates, but others whom he has never seen are constantly produced against him. True, notice may have been given that those fresh witnesses will be called, but this is not absolutely required. Respectable solicitors will do this, but as a rule respectable solicitors do no* practice in the police-courts of large towns, and in such cases there is no possible means of rebutting their evidence. The judge will comment upon this, but the judge has no power to prevent the evidence of the fresh witnesses being taken. When the jury have returned their verdict, a policeman may be called by the prosecution to prove former alleged convictions, or to speak of the bad
character of the victim. This practically leaves it in the hands of the police whether a prisoner gets a light or a heavy sentence, and to a certain extent it means whether or not the prisoner’s friends have taken the proper course to “ square the police.” If the police who are called have the proper instinct of their calling they naturally divide society into two classes—the convicted and the unconvicted, and if a man is “ charged,” why, he ought not to he convicted. How different to the Scotch system of law. There an accused person may submit himself to the procurator-fiscal for examination. If he is an innocent man lie takes this course, and has the advantage of an impartial report, which is laid before the Court. If he is guilty he does what all guilty and some few innocent men do—reserves his defence. If he is sent for trial a printed copy of the indictment is delivered to him ten days at least previous to his trial. The indictment states in plain language what the prisoner has to answer, and the names and addresses of all witnesses who will appear against him, as well as a list of previous convictions (if any) intended to be proved at the trial He has ten days at least to prepare his defence, and knows exactly what he has to rebut. When upon his trial the jury have the power of returning a verdict of “ not proven,” which in itself is a terror to the criminal. There is not an Assizes or a Sessions held in England but some guilty man escapes for want of evidence known to be in existence, but which at the moment is not capable of being produced. The criminal is discharged and cannot be tried again, because we have only two verdicts —“ guilty ” and “not guilty.” Had we the Scotch verdict of “ not proven ” justice would be less halt and blind.
What transpires after the verdict I will not enter into, as some day, as a nation, we may be sufficiently civilised to revive our old writs ot error in criminal cases or possess a Court of Criminal Appeal. Befere leaving this subject I wish to point out the absurdity of continuing the present nomenclature of misdemeanor and felons. According to the Prison Discipline Acts there is not the slightest distinction in the two classes of offenders. These require no classification. When the Act “ Absolving forfeiture in cases of Felony” was passed in 1870, which gave the felon the right which the misdemeanant had always possessed of retaining his property after conviction, and conferred the additional privileges of the right to have an official administrator during civil disabilities, there was no longer an excuse for retaining the absolute distinction in our criminal law. At present there are few firstclass misdemeanants. They are confined to aristocratic bigamists and journalist libellers, but there is no reason why in a new criminal code there should not bo a sharp demarcation by which the list should be enlarged by giving an offender against the law the benefit which in recent times has been enjoyed by Sir Gulling Eardley, Colonel Baker, Mr Edmund Yates, Mrs Weldon, and Mr Stead. The distinction should be confined to cases where there was a legal offence which carried with it no essential moral degradation. There are offences which require stern repressive punishment, but which in themselves are not degrading. A sudden impulsive blow may be fatal without previous malice ; a letter written in anger may contain imputations provocative of serious consequences undreamt of at the time; a bigamous marriage may have been contracted under circumstances which entailed a legal offence, but no moral wrong. Each of such acts require punishment, but the judge should have power to inflict a sentence which would he an admonition without rendering a person degraded in the eyes of the world.
There is another absurdity which requires public attention to be directed to an alteration, in the matter of the defence of prisoners by Queen’s Counsel. It is not frequently a “ silk ” is required as a criminal advocate, but where the necessity arises it ought not to be made a tax on the time of the Queen as well as a robbery on the purse of the prisoner. When a counsel is rich enough to afford the luxury of “ wearing silk ” he generally can get ifc on application to the Lord Chancellor, Etiquette then demands his retirement from the junior bar. In an important case a prisoner may desire an advocate who he thinks will command weight with the judge, and he wishes to be defended by a Queen’s Counsel. He is informed that a Q.C. will cost an additional fifty guineas. Now that cost is a parody upon our legal system. Suppose Mr Charles Peace, an eminent burglar, who has added murder to his multifarious transactions, thinks that he would be better served by a gentleman who, like himself, had reached the higher ranks of his profession, and as money is not so much an object as liberty, ho duly instructs his solicitor to retain Mr Buzfuz, Q.C. It is done in this way. The trial takes place at Lancaster Assizes on the Ist February. The Lancaster solicitor instructs his London agent to procure a license for Mr Buzfuz, Q.C., to defend Mr Charles Peace. A clerk from the London agents goes to Mr Buzfuz, Q. C.’s, chambers and has an interview with Mr Buzfuz, Q.C.’s, clerk, who, as a rule, is a much greater man than the Q.C. himself. After referring to his book this gentleman gravely informs the solicitor’s clerk that Mr Buzfuz, Q. 0., has some heavy cases at Lancaster which might have “to he handed over” if he had to go into the Crown Court, but suggests that if the fee was sufficiently attractive he might possibly arrange it. “What’s your feel” demands the solicitor’s clerk. “ Oh! Mr Buzfuz never goes into a criminal case for less than 50 guineas.” “In that case, then,” replies the other clerk, “ I must go to Mr Bigwig, Q.C., who will take our brief for 30 guineas.” This soon brings Mr Buzfuz’s gentleman to reason, and he accepts the “ retainer.” The next step is to go to the Home Office for the “ license ” to appear for the defence, as it is one of the farcical privileges of the Crown to reserve the services of all Q.C.’s, and I to prevent any counsel who wears a
silk gown from appearing for a prisonon as his sprvinos might ho irqnirpcl hy the Crown. This regulation in the time of the Stuarts was sometimes of service. At a much later date a man was made Q.O. only when ho was at the summit of his profession, after being some twenty years in profitable practice. Now the rank is only nominal, as there is work for them to do at the inner bar. A counsel can get made a Q.O. just as easy as a Major-General gets liis K.C.B. But why, then, should the Crown keep up the ancient custom of compelling those who wish for the services of Mr Buzfuz, Q.C., and his class to get an especial license from the Queen, which is never refused, and which was never required by the still more ancient rank of Sergeant-at-Law. Application must be made at Downing street for this permission, where the solicitor’s clerk must make his demand for his petition. He cannot got it at once. If he had to wait for it Mr Charles Peace might have been attended by the last administrator of the law before it could be procured. He makes his demand, however, upon a petition form, for which 10s is charged. He fills up the blanks ami recites how Mr Charles Peace has a peremptory engagement to appear before one of Her Majesty’s Justices at Lancaster Winter Assizes, ancUlosires permission to have the services of Mr Buzfuz, one of Her Majesty’s counsel learned in the law, as his counsel. Having filled up the form he seats himself for half an hour while a Home Office Nominated Competition Wallah finishes reading ‘The Times,’ when he condescends to take the petition in to some official in another room, He returns with a “temporary” certificate granting the permission applied for, which will serve until the petition is sent to and returned signed by Her Majesty at her Court in Balmoral. Armed with the lithographed document the solicitor’s clerk hands it to his employer for despatch to the Lancaster lawyer who is preparing the defence of Mr Charles Peace. He duly fastens it on the front page of the brief. Without this certificate the Q.C. dare not appear. All this legal tomfoolery costs about LilO in. “ attendances.” Then there are the extra fees to be considered. In ordinary cases ajunior counsel would consider himself splendidly paid if he had a seven guineas’ fee for such a defence. Etiquette, however, demands that no Q.O. shall appear in a criminal case for less than a twenty-five guinea fee. This means about L 32 for the Q.C. alone in hard cash. Then lie must have a “junior” to help him at a proportionate fee of say, 10 guineas. The solicitor’s profits amount to precisely the length of the prisoner’s purse. In due course Mr Charles Peace is tried and hanged, and when the lime in his coffin has calcined his bones Mr Buzfuz, Q.C., has duly forgotten about tho lamented Mr Charles Peace. Not so his clerk. Somewhere in the month of May the clerk marches up to Downing Street for the “ license.” This is the perquisite of a Q.C.’s clerk. The document has arrived from Balmoral. A month or two after the execution of the petitioner Her Majesty has granted her gracious permission that Mr Buzfuz, Q. 0., shall “defend” the deceased gentleman, and has signed the warrant with her royal autograph. That autograph has a trade value of five shillings. It is duly conveyed to an autograph shop, whore the clerk receives his dollar, and the transaction is closed. Most of Her Majesty’s subjects will probably coincide with me that Her Majesty ought to be protected from wasting her time in granting warrants to perform a duty which has been rendered unnecessary by the previous death of the prisoner in process of law, when the only excuse for this needless duty is solely that extra costa may be extracted from the pockets of the malefactor for the benefit of the lawyers, and that a barrister’s clerk may eke out his scanty income by hawking about London the Royal autograph to see if he can get from a private collection more than its trade value of five shillings. [Since I exposed this piece of folly the Home Secretary has given orders that the folly of sending the petition for leave to employ Queen’s Counsel to the Queen has been abolished.]
(To he continued. )
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LIFE IN AN ENGLISH PRISON., Evening Star, Issue 7910, 18 May 1889, Supplement
LIFE IN AN ENGLISH PRISON. Evening Star, Issue 7910, 18 May 1889, Supplement
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