I venture to touch upon one or two points with the purpose of suggesting in how many ways the history becomes involved in topics interesting to various classes of readers, from the antiquary to the student of the development of thought. The history of trial by jury had, of course, been already unravelled by previous historians. Fitzjames was able, however, to produce quaint survivals of the old state of things, under which a man's neighbours were assumed to be capable of deciding his guilt or innocence from their own knowledge. There was the Gibbet Law of Halifax, which lasted till the seventeenth century. The jurors might catch a man 'handhabend, backbarend, or confessand,' with stolen goods worth 13½d. in his possession and cut off his head on a primitive guillotine without troubling the judges. Even in 1880 there existed (and I presume there still exists) a certain 'liberty of the Savoy,' under the shadow of the new courts of justice, which can deal with keepers of disorderly houses after the same fashion.[177] From this primitive institution Fitzjames has to grope his way by scanty records to show how, during the middle ages, the jury ceased to be also witnesses and became judges of fact informed by witnesses. Emerging into the period of the Tudors and the early Stuarts, he comes to trials full of historic interest; to the dramatic scenes in which Sir Thomas More, and Throckmorton, and Raleigh played their parts. He has to show how in a period of overpowering excitement, when social organisation was far weaker, and the power of the rulers more dependent upon personal vigour, the Government dealt out sharp and short justice, though juries still had to be cajoled or bullied; how the system was influenced by the growth of the Star Chamber, with a mode of procedure conforming to a different type; and how, when the tyranny of such courts had provoked indignation, they were swept away and left to the jury its still undisputed supremacy. From the time when honest John Lilburne wrangled successfully against Cromwell's judges, it began to assume a special sanctity in popular belief. Then we come to the Popish plots and the brutalities of Scroggs and Jeffreys, when the jury played a leading part, though often perverted by popular or judicial influence, and without any sound theory of evidence. The revolution of 1688 swept away the grosser abuses; the administration of justice became decorous and humane; a spirit of fair play showed itself; the laws of evidence were gradually worked out; and, instead of political tragedies, we have a number of picturesque cases throwing the strangest gleams of light into all manner of odd dark social corners. Within the last century, finally, the mode of investigating crime has become singularly dignified, impartial, and substantially just. A survey of this long history, bringing out at every step picturesque incidents and curious illustrations of social and political constitutions, lights up also the real merits and defects of the existing system. Fitzjames, with much fuller knowledge and longer experience, adheres substantially to his previous opinion. He has not, of course, the old-fashioned worship for the 'palladium of our liberties'; jurors could be 'blind and cruel' under Charles II., and as severe as the severest judge under George III. They are not more likely to do justice than a single judge. But the supreme advantages of placing the judge in his proper position as mediator and adviser, and of taking the public into confidence as to the perfect impartiality of the proceedings, outweigh all objections.
Again we have the curious history of the 'benefit of clergy.' Before 1487, a man who could read and write might commit murder as often as he pleased, subject to an indefinite chance of imprisonment by the 'ordinary.' At a later period, he could still murder at the cost of having M branded on the brawn of his thumb. But women and men who had married two wives or one widow did not enjoy this remarkable privilege. The rule seems as queer and arbitrary as any of the customs which excite our wonder among primitive tribes. The explanation, of course throws a curious light upon the struggle between Church and State in the middle ages; and in the other direction helps to explain the singularities of criminal legislation in the eighteenth century. Our grandfathers seem to have thought that felony and misdemeanour were as much natural classes as mammal and marsupial, and that all that they could do was to remove the benefit of clergy when the corresponding class of crime happened to be specially annoying. They managed to work out the strange system of brutality and laxity and technicality in which the impunity of a good many criminals was set off against excessive severity to others.
The spiritual courts, again, give strange glimpses into the old ecclesiastical system. The records show that from the time of the Conquest to that of the Stuarts a system prevailed which was equivalent to the Spanish Inquisition, except that it did not use torture. It interfered with all manner of moral offences such as that of Eleanor Dalok, a 'communis skandalizatrix,' who 'utinizavit' (supposed to be a perfect of utinam) 'se fuisse in inferno quamdiu Deus erit in cælo, ut potuisset uncis infernalibus vindicare se de quodam Johanne Gybbys mortuo.' The wrath provoked by this and more vexatious interferences makes intelligible the sweeping away of the whole system in 1640. With this is connected the long history of religious persecution, from the time when (1382) the clergy forged an act of Parliament to give the bishops a freer hand with heretics. Strange fragments and shadows of these old systems still remain; and according to Fitzjames it would still in strict law be a penal offence to publish Renan's 'Life of Christ.'[178] The attempt to explain the law as referring to the manner, not the matter, of the attack is, he thinks, sophistical and the law should be simply repealed. A parallel case is that of seditious libels; and there is a very curious history connected with the process by which we have got rid of the simple, old doctrine that all attacks upon our rulers, reasonable or otherwise, were criminal.
These are some of many cases in which Fitzjames has to give a side of history generally left in comparative obscurity. Upon some matters, as, for example, upon the history of impeachments, he thought that he had been able to correct or clear up previous statements. I have only wished to show how many interesting topics come into his plan; and to me, I confess, the most interesting of all is the illustration of the amazing nature of the so-called intellectual process involved. People seem to begin by making the most cumbrous and unreasonable hypotheses possible, and slowly and reluctantly wriggling out of them under actual compulsion. That is not peculiar to lawyers, and may have a meaning even in philosophy.
Fitzjames's comments upon the actual state of the law brings him to many important ethical problems. The discussion of the conditions of legal responsibility is connected with that of moral responsibility. Fitzjames once more insists upon the close connection between morality and law. 'The sentence of the law,' he says, 'is to the moral sentiment of the public what a seal is to hot wax. It converts into a permanent final judgment what might otherwise be a transient sentiment.' The criminal law assumes that 'it is right to hate criminals.' He regards this hatred as a 'healthy natural feeling'; for which he again quotes the authority of Butler and Bentham. The legal mode of expressing resentment directs it to proper applications in the same way as the law of marriage gives the right direction to the passion of love. From his point of view, as I have already indicated, this represents the necessary complement to the purely utilitarian view, which would make deterrence the sole legitimate end of punishment. The other, though generally consistent, end is the gratification of the passion of moral indignation.[179]
Hence arise some difficult questions. Fitzjames insists, in agreement with Bentham, and especially with James Mill, that the criminal law is concerned with 'intentions,' not with 'motives.' All manner of ambiguities result from neglecting this consideration. The question for the lawyer is, did the prisoner mean to kill?—not, what were his motives for killing? The motives may, in a sense, have been good; as, for example, when a persecutor acts from a sincere desire to save souls. But the motive makes no difference to the sufferer. I am burnt equally, whether I am burnt from the best of motives or the worst. A rebel is equally mischievous whether he is at bottom a patriot or an enemy of society. The legislator cannot excuse a man because he was rather misguided than malignant. It is easy to claim good motives for many classes of criminal conduct, and impossible to test the truth of the excuse. We cannot judge motives with certainty. The court can be sure that a man was killed; it can be sure that the killing was not accidental; but it may be impossible to prove that the killer had not really admirable motives.
But if so, what becomes of the morality? The morality of an act is of course affected (if not determined) by the motive.[180] We can secure, no doubt, a general correspondence. Crimes, in nine cases out of ten, are also sins. But crimes clearly imply the most varying degrees of immorality: we may loathe the killer as utterly vile, or be half inclined very much to applaud what he has done. The difficulty is properly met, according to Fitzjames, by leaving a wide discretion in the hands of the judge. The jury says the law has been broken; the judge must consider the more delicate question of the degree of turpitude implied. Yet in some cases, such as that of a patriotic rebel, it is impossible to take this view. It is desirable that a man who attacks the Government should attack it at the risk of his life. Law and morality, therefore, cannot be brought into perfect coincidence, although the moral influence of law is of primary importance, and in the normal state of things no conflict occurs.
There are certain cases in which the difficulty presents itself conspicuously. The most interesting, perhaps, is the case of insanity, which Fitzjames treats in one of the most elaborate chapters of his book. It replaces a comparatively brief and crude discussion in the 'View,' and is conspicuously candid as well as lucid. He read a great many medical treatises upon the subject, and accepts many arguments from an opponent who had denounced English judges and lawyers with irritating bitterness. There is no difficulty when the madman is under an illusion. Our ancestors seem to have called nobody mad so long as he did not suppose himself to be made of glass or to be the Devil. But madness has come to include far more delicate cases. The old lawyers were content to ask whether a prisoner knew what he was doing and whether it was wrong. But we have learnt that a man may be perfectly well aware that he is committing a murder, and know murders to be forbidden in the Ten Commandments, and yet unable to refrain from murder. He has, say the doctors, homicidal monomania, and it is monstrous to call in the hangman when you ought to be sending for the doctor. The lawyer naturally objects to the introduction of this uncertain element, which may be easily turned to account by 'experts' capable of finding symptoms of all kinds of monomania. Fitzjames, however, after an elaborate discussion, decides that the law ought to take account of mental disease which operates by destroying the power of self-control. The jury, he thinks, should be allowed to say either 'guilty,' or 'not guilty on the ground of insanity,' or 'guilty, but his power of self-control was diminished by insanity.'[181] I need not go into further detail, into a question which seems to be curiously irritating to both sides. I am content to observe that in the earlier book Fitzjames had been content with the existing law, and that the change of opinion shows very careful and candid consideration of the question, and, as I think, an advance to more moderate and satisfactory conclusions.
The moral view of the question comes out in other relations. He intimates now and then his dissatisfaction with the modern sentimentalism, his belief in the value of capital and other corporal punishments, and his doubt whether the toleration of which he has traced the growth can represent more than a temporary compromise. But these represent mere obiter dicta which, as he admits, are contrary to popular modes of thought. He is at least equally anxious to secure fair play for the accused. He dwells, for example, upon the hardships inflicted upon prisoners by the English system of abstinence from interrogation. The French plan, indeed, leads to cruelty, and our own has the incidental advantage of stimulating to the search of independent evidence. 'It is much pleasanter,' as an Indian official remarked to him by way of explaining the practice of extorting confessions in India, 'to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence.'[182] Fitzjames, however, frequently remarked that poor and ignorant prisoners, unaccustomed to collect their ideas or to understand the bearing of evidence, are placed at a great disadvantage by never having stated their own cases. The proceedings must pass before them 'like a dream which they cannot grasp,' and their counsel, if they have counsel, can only guess at the most obvious line of defence. He gives instances of injustice inflicted in such cases, and suggests that the prisoners should be made competent witnesses before both the magistrates and the judge. This would often enable an innocent man to clear up the case; and would avoid the evils due to the French system.[183]
Without going further into this or other practical suggestions, I will quote his characteristic conclusion. The Criminal Law, he says, may be regarded as an expression of the second table of the Ten Commandments. It follows step by step the exposition of our duty to our neighbours in the Catechism. There was never more urgent necessity for preaching such a sermon than there is at present. There was never so much doubt as to other sanctions. The religious sanction, in particular, has been 'immensely weakened, and people seem to believe that if they do not happen to like morality, there is no reason why they should be moral.' It is, then, 'specially necessary to those who do care for morality to make its one unquestionable indisputable sanction as clear and strong and emphatic as acts and words can make it. A man may disbelieve in God, heaven, and hell; he may care little for mankind, or society, or for the nation to which he belongs—let him at least be plainly told what are the acts which will stamp him with infamy, hold him up to public execration and bring him to the gallows, the gaol, or the lash.'[184] That vigorous summary shows the connection between the 'Liberty, Equality, Fraternity,' the various codifying enterprises, and his writings upon theology and ethics. The remarkable point, if I am not mistaken, is that in spite of the strong feeling indicated by the passage just quoted, the tone of the book is throughout that of sound common sense, impartiality, and love of fair play. It is characteristic that in spite of his prejudice against the commonplaces about progress, he does, in fact, show that the history of criminal law is in many most important respects the history of a steady advance in humanity and justice. Nor, in spite of a reservation or two against 'sentimentalism,' does he fail to show hearty sympathy with the process of improvement.