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The number of convictions for the lighter crimes in different countries, gives no exact measure of their comparative moral condition; it gives but an approximation founded upon the only data which the nature of the inquiry affords; for much must depend upon the criminal code itself, which in some countries may treat as crimes what in others are considered as police transgressions only; and still more must depend upon the manner or principle of administering the criminal law. In Scotland, for instance, the administration of the law, the detecting, arresting, committing, and prosecuting criminal offenders, are duties performed by paid functionaries, the procurator fiscal, sheriff depute, and their officers, in each county. The consequence is, that the public at large, as there are official people paid to do these duties, are not at all embued with that sense of duty to others, so lively in England, which leads men to seek out, arrest, and bring to justice, offenders, even when not directly sufferers by the offence. The sufferer himself, unless he see a chance of compensation or recovery of his loss, will scarcely be at the trouble
in jail. Of the prisoners 547 were debtors; and the total number exceeds, by 778, the number at the close of the preceding year. Great Britain and Ireland, with their 27 millions, would, in the same ratio, have 118,000 of their population in jail; that is, more than the peace establishment of our army and navy would be criminals and debtors, under confinement. In 1836, the number of convicts under punishment in the Houses of Correction, in Sweden, was 3240.
of travelling to the county town or place of business of the paid functionaries, who cannot be so numerous as to be found in every neighbourhood, to lodge informations which may produce to him considerable trouble and loss of time; and that merely to discharge a public duty, which there are functionaries paid to do. There is among the Scottish people, accordingly, an apathy about the duty of apprehending ordinary delinquents, and even a kind of feeling in favour of the offender and of his escape from justice. This tendency of the multitude, and even of those above the vulgar, is complained of by all the functionaries who have to administer criminal law in Scotland. The small amount, therefore, of criminal committals among the Scotch population may prove not so much the absence of crime, as the absence of that sense of duty to society which induces men to denounce, detect, and arrest crime. In Sweden, Norway, and Denmark, the same principle of administering the law prevails as in Scotland, and with the same effect on the spirit of the people. In England it is left very much to the public themselves to detect and bring to justice offenders. It is a duty forced upon every man, as from the dense population and great diffusion and exposure of personal property, society could not exist, if stipendiary functionaries, however numerous, were alone charged with it, and the public looked on with apathy, as in Scotland. It is exactly the want of paid functionaries to do the duty, which keeps alive in England that strong sense of duty to society in bringing to justice
offenders, which is far more effective, both in deterring and detecting, than any body of paid functionaries, however numerous and watchful. The criminal lists of a country under this administration of law may exhibit a much greater number of offences, especially of the minor depredations upon property, which every man feels a personal interest in checking, than those of countries in which the people have nothing to do with the execution of the law.
Which principle, for the administration of the criminal law of a country, is the best that by which it is left very much to the people themselves, and to that sense of duty to society which is thereby nourished as in England with its unpaid magistracy and its private prosecutors of offences; or that by which it is in the hands of a body of paid functionaries spread over the country for the performance of that duty as in Scotland and all the feudally constituted countries of the Continent? The question has never been dispassionately examined. It is taken up as a party question in the present times, and, singularly enough, each party espouses that side of the question which is in direct opposition to their own principles. The high Tory advocates the ancient system of the administration of the criminal law in England. This system is, in fact, democratical in the highest degree. It leaves the penal law in the last resort to the judgment and good sense of the people themselves. If any law be unjust, oppressive, inhuman-as, for instance, the laws inflicting death for sheep-stealing,
stealing in bleach-fields, or forgery - it becomes non-effective, is, in fact, practically abrogated by the people, because prosecutors will not come forward upon a law which shocks humanity and good sense by its disproportionate punishment. Parliaments may enact, and judges expound, but practically there is an ultimate appeal to the public, whether a law be necessary in all its severity; whether the crime disturbs their well-being so much, that the law should be made fully effective. Public opinion regulates the execution of the law according to the wants of society for protection against the offence. It is surprising, that this important practical element in the social structure of England is so little taken notice of by writers on her legislative system. It is the most important feature in it, that bad or unnecessary legislation, laws not generally required, but adapted only for local or partial evils, may be, and practically are, corrected, or even nullified, by the sense of the country, in a silent unseen way. Yet our Radicals, on the other hand, call for the abolition of the system of an unpaid magistracy, and of private prosecutors, and for the establishment of stipendiary magistrates, official prosecutors, peace officers, and, as a necessary consequence, paid informers — leaving the people nothing to do with the laws but to obey them; no means of rendering obnoxious or unnecessarily severe laws ineffective, or of correcting wrong, unsuitable, or excessive enactments of the legislative body, but by agitation or open resistance. They call for the abolition of that ultimate appeal
to the people themselves, whether the enforcement of a law be necessary, and its inflictions proportionate to the evil which society suffers from the offence, which is the great safeguard in England against faulty and oppressive legislation; and they require the establishment of that machinery of a standing army of civil functionaries subservient to the crown, to administer law, which has been, in every age and country, the most effective support of arbitrary government. These are the inconsistencies of party spirit.
The great practical difference in the dispensation of law in England, and on the Continent, is the superior despatch of criminal cases, from the people being the prosecutors themselves, instead of paid functionaries. Doubtful cases are not, perhaps, brought forward so readily by the private prosecutor as they would be by the practised lawyer, who has his own skill and ingenuity to display at the bar, as well as to satisfy the end of law by the discovery of guilt. Many more guilty may escape, but the still greater evil of the law's delay in criminal cases is prevented. The English criminal law is often talked of by foreign jurists as hasty in its conclusions; I met the other day in a newspaper, the following instance of the deliberative mercy of the criminal law on the Continent. In 1830, a retired nobleman of the Danish court, the Chamberlain Von Qual, dwelling in Eutin, a town between Holstein and Lubeck, was found murdered at his own door. His two servants, the gardener and coachman, were sus