CHAPTER X

CRIME AND PUNISHMENT

The penal laws of the British Empire are, by foreign writers, charged with being too sanguinary in the cases of lesser offences. They hold that the punishment of death ought to be inflicted only for crimes of the highest magnitude; and philanthropists of our own nation have accorded with their opinion. Such persons as have had no opportunity of inquiring into the subject will hardly credit the assertion that there are above one hundred and sixty offences punished by death, or, as it is denominated, without benefit of clergy.

ANTHONY KNAPP and WILLIAM BALDWIN: Preface to "The Newgate Calendar," 1824.

The progress we have made in the reform of criminal law in the last hundred years is really remarkable. In very recent days we have at last allowed the prisoner to give his evidence of the matter he is charged with if he desires to do so. We have, under certain restricted conditions, supplied him with legal assistance, and, best of all, there is at length a Court of Criminal Appeal.

It is interesting and encouraging when your mind has a bent towards legal reform to see how past reforms have come about. As recently as 1826 prisoners accused of felony were not allowed counsel, and the Rev. Sydney Smith, who had a winning way of stating the case of the Law and the Poor in his own day, was pleading in the _Edinburgh Review_ for a reform of this matter. One would have thought then, as one often thinks now, that a mere statement of the issue would have been sufficient. This is a picture of things as they were. "There are seventy or eighty prisoners to be tried for various offences at the Assizes who have lain in prison for some months; and fifty of whom, perhaps, are of the lowest order of the people, without friends in any better condition than themselves, and without one single penny to employ in their defence. How are they to obtain witnesses? No attorney can be employed--no subpoena can be taken out; the witnesses are fifty miles off perhaps--totally uninstructed--living from hand to mouth--utterly unable to give up their daily occupation to pay for their journey, or for their support when arrived at the town of trial--and if they could get there, not knowing where to go or what to do. It is impossible but that a human being in such a helpless situation must be found guilty; for as he cannot give evidence for himself, and has not a penny to fetch those who can give it for him, any story told against him must be taken for true (however false) since it is impossible for the poor wretch to contradict it."

And yet, absurd as it seems to us to-day, the prisoner's right to counsel was not obtained without a severe struggle. At the back of the mind of those who opposed the reform was the idea that as prisoners were accused by the Crown it was an act of disloyalty to defend them. Ridiculous as that idea is it still exists in a form that is interesting only as showing that the tradition was once a reality. A King's counsel has to obtain leave from the authorities, and pay a small tribute therefore, before he can appear for a prisoner and against the Crown. Leave is never refused, but the existence of such a curious custom is only comprehensible by studying the folklore of the subject.

A hundred years ago this folly sanctioned by antiquity was a reality. The defenders of the position said it was really all done in the interests of the prisoner. His witnesses were not put on oath, and this allowed them to tell any falsehood they wished; he was saved the expense of his counsel--as though he preferred economy to hanging--and the judge, he was told, was his counsel--an arrangement that the prisoner cannot have been very grateful for when he heard his counsel on the bench summing up to the jury for a conviction. The nonsense that was talked and written on this subject is encouraging to those who want things done to-day. Against all reforms, arguments of this kind have to be listened to and laughed out of Court, but to-day we are in a better position than Sydney Smith was, for we often find in the official world a human being ready to help on a reform when the time is ripe for it. In his day common-sense and common humanity had not permeated into Government offices, "the Attorney-General and the Solicitor-General for the time being always protesting against each alteration and regularly and officially prophesying the utter destruction of the whole jurisprudence of Great Britain." It was not until ten years after the _Edinburgh Review_ article was written that Parliament in August, 1836, passed an Act to permit prisoners charged with felony the right to be defended by counsel. And yet there are many people who think we move too fast in necessary reforms.

Sydney Smith mentions as one of the injustices to the prisoner his inability to give evidence. This remained a disability until our own time and was only removed with great difficulty and against the advice of many learned lawyers. The folklore of the subject is quite entertaining. Our ancestors considered, from introspective knowledge of themselves and their neighbours, that no one with any interest in a dispute was likely to speak the truth about it, they therefore did not allow the parties to a suit to give any evidence at all. This was the old law in both civil and criminal cases. Thus you may remember that in the great case of _Bardell_ v. _Pickwick_ neither plaintiff nor defendant gives evidence, because in law at that date they were not competent witnesses. The inconveniences of this in civil matters was patent to everyone but the lawyers. Writing on the incompetency of witnesses to give evidence, Bentham said with some humour, "in the bosom of his family the lawyer by the force of good sense returns to the simple method from which he is led astray at the bar by the folly of his learning. No one is so deeply tainted with his judicial practice as to apply its rules to his domestic affairs. If you would represent madness--but a madness where all is melancholy and unintelligible--you have only to imagine an English barrister carrying into ordinary life the fictions, the rules, and the logic of the bar." Certainly we cannot believe that when Sergeant Snubbin returned to his house and found a dispute raging between his cook and his butler that he tried to find out the truth about it without hearing what either of them had to say.

In 1846 when County Courts were established, the parties and their wives were allowed to give evidence, and so obvious were the advantages of this that in 1851 Lord Brougham passed the Evidence Amendment Act extending the system to other Courts. The only thing that surprises us to-day is that there could ever have been any question about the necessity of allowing parties to give evidence if it was really desired that they should have justice.

But we still clung to the right of the prisoner to keep his mouth shut, and in our insular way boasted of his privilege. Thackeray is horrified by the examination of the prisoner in the ordinary French way. "In England, thank heaven, the law is more wise and merciful!" He sees in the French Government advocate an official seeking in every way to draw confessions from the prisoner to perplex and confound him and to do away with any effect that his testimony might have on the jury, and he thanks heaven openly that we should "never have acted as these Frenchmen have done." What really troubled Thackeray's patriotic mind was the indecency of asking the prisoner any question at all. Victorian Englishmen of all grades were peculiarly proud of our criminal administration of justice and considered the privilege of the prisoner to keep his mouth shut was the keystone of the edifice.

Dickens approached the matter more hesitatingly: "I wonder," he writes, "why I feel a glow of complacency in a court of justice, when I hear the learned judges taking uncommon pains to prevent the prisoner from letting out the truth. If the object of the trial be to discover the truth, perhaps it might be as edifying to hear it even from the prisoner, as to hear what is unquestionably not the truth from the prisoner's advocate. I wonder why I say, in a flushed and rapturous manner, that it would be 'un-English' to examine the prisoner. I suppose that with common fairness it would be next to impossible to confuse him unless he lied; and if he did lie I suppose he could hardly be brought to confusion too soon."

This being the Victorian attitude in the matter it was hardly to be wondered at that the reform was delayed until our own day. Yet I doubt if anyone conversant with the criminal Courts would doubt that although there are cases where it has been to the disadvantage of the guilty to go into the witness box, it has been of enormous value to the innocent that he can give his own account of things to the jury.

There are three recent Acts of criminal law reform which have done much to safeguard the interests of innocent men, especially if they are poor. These are the Criminal Evidence Act, 1898, the Poor Prisoners Defence Act, 1903, and the Court of Criminal Appeal Act, 1907. If we could have such an outburst of legal reform every ten years in other subjects we should be doing well. But it must not be thought that these reforms were obtained without trouble. Each was strenuously fought, year by year, for many many years before the energy and patience of the reformers were crowned with success.

One would have thought that the claim of a citizen, charged with a criminal offence, to give his account of the affair to the jury, if he wished to do so, was one of those matters of elementary justice that could hardly be contended against at the end of the nineteenth century, but the fight against this privilege was really a very strenuous one. Twenty years before the reform actually came the Bill had been read a second time in the House of Commons by a majority of 109, showing, at all events, that the lay mind of the country had no doubt about what should be done. In each succeeding year, when any new offence was created by Act of Parliament, there was a special clause put in to enable a prisoner to give evidence, so that at length there were some thirty or more Acts giving a prisoner the right to give evidence. This made the state of the law, as Lord Herschell said, "utterly indefensible and ridiculous." We were living under two competing systems, whose constant absurdities were made manifest in the Courts; thus, if a man was charged with forging a trade mark he was a competent witness, if he was charged with any other forgery his mouth was closed.

Curiously enough, owing to the irony of our party system, it was the Conservatives who brought in this reform and the Radicals who opposed it. It was left for Sir Richard Webster to point to the progress of all the States of America, and the experience of our Colonies, and to ask that we should not lag behind in the good work of reform. That sturdy radical, Mr. Pickersgill, was shocked, and elaborated the quaint argument that an innocent man should be debarred this privilege lest he might be an ignorant person who would tell lies, and get confused and muddled, thereby prejudicing his chance of acquittal.

A large body of influential legal opinion was adverse to the Bill, and in the division lists voting against the reform you find the names of Sam Evans, John Morley, W. S. Robson, Lawson Walton, and other well-known Liberals. It is one of the crosses that a legal reformer has to bear that only through the services of one or other of the great parties in the State can he hope to see his pet dream materialise and there seems a certainty that, if one party is converted to a proposal, the other party makes a point of being diverted by it. Over and above that unhappy difficulty to progress there is the certainty that the lawyers, as a profession, will always offer a strong opposition to any proposition of legal reform, and, when this is defeated, will fight strenuous little rearguard actions to cripple and delay it.

The Poor Prisoners Defence Act met with less opposition. It was a comparatively small affair, and there were a few fees in it. Mr. Justice Grantham--whose merits as a friend of the prisoner and a humane judge are often lost sight of in remembering his daring dives from the bench into the sea of politics--this good judge was a keen supporter of the movement for the better defence of poor prisoners. He thought the magistrates ought to ask the prisoner what his defence was, and tell him that, if he would state it, they would do all they could to assist him in proving it, and that, if he wanted evidence, they would adjourn the case and get evidence. His ideal was that the magistrate and the police should assist a man to prove his innocence, and that any sort of reasonable defence should be followed up at the public expense.

The letter of the Act, however, only gives the poor prisoner a solicitor and counsel and a copy of the depositions. No doubt the best is done for him that can be under these conditions, but it is not the same quality of legal defence that a rich prisoner can obtain for money. Naturally, counsel who take these cases are not men of the greatest experience, and the defending of prisoners is a difficult branch of the act of advocacy. A story is told of a Scotch prisoner, who had economically pretended he was without means in order to save counsel's fees, calling out in agony as he heard his defender addressing the jury in a very unconvincing manner: "Young mon, if ye'll sit doon at once I'll give ye a feeve poun' note." Although the Act is not everything it might be, yet, undoubtedly, it is a move in the right direction and capable, under sympathetic administration, of doing much good.

The Criminal Appeal Act of 1907 has proved itself of such value already that it becomes the more amazing to read of the difficulty experienced in getting it on the Statute Book. All manner of legal interests were banded together against it. One of the two learned king's counsel who moved its rejection in the House of Commons solemnly declared that the cost of taking shorthand notes and the expense of bringing a prisoner to London from the north of England appalled him and, in his view, "the machinery of the Bill must inevitably break down ... it was absolutely unworkable." The second uttered mournful prophecies of ruin: "to substitute," he said, "this most costly machinery for the present system would deprive our criminal Courts of their principal glory in the deep sense of care, caution, and responsibility which was pervading the atmosphere of every criminal Court in the country at the present time."

Many people seemed to think that juries knowing there was an appeal would take less pains and care in their duties. But a jury in a criminal case is a body of citizens called together on a special and solemn occasion to do a serious duty and the fact of appeal or no appeal would have little effect on their conduct. It was the slackness of some of the judges rather than the possible carelessness of juries that wanted looking to, especially in Courts of country Quarter Sessions where the shorthand writer and the Court of Criminal Appeal were bound to exercise a good influence. Nothing tends to good judicial work more certainly than publicity, a shorthand note, and a strong Court of Appeal easily available.

Although the criminal law has in the main been fairly administered and equally enforced against rich and poor there are certain classes of laws which have often, no doubt from worthy motives, been used as engines of oppression against the poor. Of these the Blasphemy Laws are a standing example. Dr. Johnson tells us that: "Laws are formed by the manners and exigencies of particular times and it is but accidental that they last longer than their causes." This is not altogether true. The fact is we have no summary machinery for removing decayed and obsolete laws from the Statute book. We want a legal lethal chamber for these old die-hards, these laws against Sabbath Breaking and Blasphemy and other old world wickednesses. A rich man may break as many Sabbaths and blaspheme at his will but he is never prosecuted for it. In the days of that great and good reformer, Charles Bradlaugh, the Blasphemy Laws were made use of to stifle the poor in the expression of their opinions in a very shameless way. Only last year a man was imprisoned under them in circumstances which gave rise to a good deal of uneasiness. He was no doubt an ill-mannered and unpleasant person, but ill manners and unpleasantness are not crimes, and to make use of these old Blasphemy Laws, to lock up the poor blasphemer only, is one of those things that does extensive harm by giving the blasphemer new fuel for his blasphemy, not only against the sacred things he does not appreciate, but also against the law which he finds ready to do injustice for the protection of these holy mysteries.

This again, like many of the things which we may reasonably complain about in what is, as the world goes, a humane criminal law, is one of the matters handed down by our forefathers which we have not had time to set right. In the old days Unitarians and others were burned alive. Fuller in his Church History says: it was found that "such burning of heretics much startled common people, pitying all in pain and prone to asperse justice itself with cruelty because of the novelty and hideousness of this punishment.... Wherefore King James politickly preferred that heretics hereafter, though condemned, should silently and privately waste themselves in prison." And that is what all heretics ought to do to-day if the law were equally administered, but as a matter of fact these laws are only put in force against poor, noisy people who preach their doctrines in the market place, and are a dead letter against those who preach the same doctrines on hand-made paper bound in morocco. I can quite believe that a bye-law to hinder one man saying coarse and ill-mannered things about another man's religion in open spaces might be a reasonable police proposition; but there must be free trade in these things and the Established Church must not have a preference. Moreover, such a law must not be extended to pulpits or printing presses or much interesting theological polemics would be lost to us. For the Blasphemy Laws in the twentieth century, protecting only one form of religion and set in motion only against the poor, nothing can be said. Foul language and obscenity can and are punishable in other ways, and the cause of religion is poorly served by being protected by laws which are only set in motion when the well-to-do are annoyed by the vulgarity and ill-manners of the poor.

There is no gainsaying that once in the dock all men are equal or very nearly so, but one may harbour a suspicion whether all men have equal opportunities of getting there. Theoretically, the dock, like the Bench and the Cabinet and all other British institutions, is approached by an ever open door; but in practice more goats wander through the opening than sheep. Yet your sheep is a born trespasser. There are some who believe that his immunity from punishment is due to the wool on his back.

I doubt if this is altogether true. Crimes of violence and brutality are naturally the crimes of the less fortunate of mankind, and your sheep is more peaceably disposed than your goat. But when we come to the more modern crime of swindling we find that the criminal law is not very successful in punishing the fraudulent well-to-do. Fraud is a more complicated offence than larceny, and defrauders sometimes get the better of the law. Cheating is not always a crime, and successful cheating is a question of better education. That is why the rich so often keep out of the dock. The law is somewhat old and decrepit, and the modern well-to-do swindler is very much up to date. Therefore I fear it is as true to-day as it was in the days of Lord Chief Justice Coke, to say that the law "maketh a net to catch little birds and letteth the great ones go."

If you cast your eye down the police news you will many times come upon the case of a low-down man or woman who goes round collecting for a mission that does not exist, thereby cheating the well-disposed of a few pounds or shillings. It is quite right they should be run in and sent to prison. They are pests stealing money that would otherwise relieve real distress.

But if they had had a little more money, and hired a house in some remote place, and kept half-a-dozen real orphans there, and called it The St. Anonymous Orphanage, they might have collected as many thousands a year as they liked for their excellent charity, and no one would have worried them by asking how the orphans were looked after, nor would anyone have wanted to know how much was spent on the orphanage and how much on the founder and his family, and their houses and carriages and furniture and upkeep. The poor orphan has many uses in the world. One of them is to enable the swindler to found orphanages and make his living thereby.

At first blush the crime seems the same as that of the house-to-house cadger who gets six months, but note that the uneducated man has told a lie and made a false pretence of an existing fact. The good Founder of St. Anonymous's never did that. He had an orphanage with real orphans in it. True, there were not very many of them, and the orphanage was rather a stuffy, insanitary sort of place, though photographed on end it looks imposing enough. And that is the _mot juste_, as the French have it; that is what the orphanage was, and what the good founder was--imposing.

If you tell no actual fibs the law does not mind you imposing as much as you like. You may transfer the savings of the working class into your pockets by promises of the wildest character and schemes of the silliest and most romantic sort, and if you do it successfully enough the nearest you will ever get to the dock will be a seat on the borough bench, from which altitude you may sentence the poor, mean criminal who never had any capital, and had no one to advise him as to the law of false pretences. This is not a fancy picture. There was at least one such a magistrate on the bench once, and for aught I know there may be some J.P.'s to-day whose wealth has been made by stealing the savings of the working classes within the law.

Certainly in this country we have been free from the subordination of the Criminal Courts to the power of gold that is said to exist in other civilised places. Any preferential treatment that exists is of a class character--snobbish if you will, but not corrupt. As an Irish barrister said to me at Liverpool--he was a great Home Ruler with a grand hatred of England and a real affection for many Englishmen: "My dear Parry, you'll never convince me that the Government ever meant to hang Mrs. Maybrick. They're a cowardly lot of snobs, and anyhow they couldn't hang a woman they might have to meet out at dinner afterwards."

And there is undoubtedly running through all our English institutions, even the administration of the criminal law, a certain amount of class snobbery which it would be better should be eliminated. Judges and magistrates are, of course, only human. The wrong doing of a man or woman of our own class naturally appeals to our bump of forgiveness more readily than that of a slum dweller whose temptations and environment we know nothing about.

Thus we can remember cases where lady shoplifters were discovered by eminent physicians to be suffering from some extraordinary form of neurasthenia--not insanity, of course--but one of those nervous breakdowns that made an acquittal and a rest cure in a nursing home the only appropriate course. Magistrates seem to grasp the medical facts about these well-to-do unfortunates almost too readily; but had it been a drunken woman snatching a pair of boots from a shop-nail in the street no eminent physician would have diagnosed her peculiar form of neurosis. Even if her husband had tendered evidence that of late the poor lady had been strange in her manner, he would scarcely have been listened to with much sorrowful attention. The good magistrate would have felt bound in the interests of the poor tradesman to make an example of this criminal. Such cases are not cases for acquittal, and the rest cure is generally three months hard.

There are certainly too many cases where the wealth and position of a prisoner leads to favoured treatment in the Criminal Courts. I am glad to note that these are always pilloried in the Press and publicity is given to them, and in a way nothing could be better because it is the open door that has done so much to keep our courts free from the taint of any suspicion of real corruption. I firmly believe that when these cases do occur they are generally the outcome of a spirit of humanity on the part of the presiding judge coupled to a certain extent by a class feeling of tenderness on account of the terrible downfall of a man or woman in his own social position. Such cases, too, are rare. No special note is taken of any case where the law takes its ordinary course and the rich criminal is treated in the same way as his poorer brother. These are, of course, the great majority, and there are also many cases I am glad to know where leniency and mercy is extended to the poor criminal and he is helped by societies and personal aid to regain his position among honest men.

But with all this the poor man can point to too many instances where rich hooligans running amok with a motor car in Regent Street or assaulting the police on a racecourse are let off with a fine. Here is a curious case from the London Sessions that is bound to cause a lot of talk in the mean streets. A fashionably dressed young man was indicted in an admittedly false name, and was allowed to use it for the purpose of the proceedings, and pleaded guilty. He had obtained a sable stole, value L40, from a costumier in Shaftesbury Avenue by false pretences. He had opened an account at Oxford. He received a cheque book and then withdrew his money and closed the account. He used to obtain goods which he paid for with cheques on the Oxford Bank, and cheques to the amount of L5,241 6_s._ 3_d._ had been returned marked "no account." A detective said he was a young man leading a fast life. The city police had a warrant for him for obtaining a ring value L145 and a gold watch L15. These articles it is true were returned. The Oxford police had a warrant out for him and when arrested he was attempting to obtain a valuable fur article in Dover Street. His counsel urged that his parents were people of respectability and integrity who had suffered losses, and the young gentleman was trying to keep things going in the same style he had been accustomed to, and had come under bad influences. That is the whole story, and the report ends, "the defendant was bound over, the magistrate remarking that there was no need to cause his relatives to suffer by mentioning his name."

How many poor men and women whose children have been taken away from them for long terms of years to a reformatory or sent to gaol for months with hard labour, to the knowledge of all their neighbours, will read that report, and what will they think and say of the justice of our criminal law? One pities the parents and relatives of this particular young criminal waster as one pities the parents of all children and the children of all parents when one or the other bring disgrace or ignominy on the home--but why is this one particularly undesirable swindler to be allowed the privilege of an alias in an indictment, and why is his name alone among all the prisoners arraigned at the Sessions to be kept from the world? And how hard it will be on some youngster of like criminal tendencies when he comes before a court where harsher methods prevail, and he finds that not only is his name brutally noised abroad, but offences of this character are deemed worthy of imprisonment.

One would not wish to say a word against leniency to the young however much it may savour of class-tenderness, but the concealment of a criminal's name on his trial because his parents are well-to-do and respectable, is just one of those things that the poor people treasure up and quote as an instance of the law's unfairness. At a time when every effort should be made to impress on the poor the impartiality of the law little cases of this kind, arising no doubt from motives of kindness and humanity, are exaggerated and quoted as typical of our criminal administration--which assuredly they are not.

In cases where the whole of the resources of the State are against the prisoner fair play demands that everything that can be done for him without detriment to the demands of justice should be done. In a case of murder which created a great sensation this year, the whole evidence turned on identity. Several witnesses came to the police and said they had seen the victim, a child, in company of the prisoner. Other witnesses had stated to the police that they had seen the victim in company with a woman. During the examination of the police inspector in charge of the case he was asked by the defence for these statements, the magistrate expressed his opinion that they should be shown to the solicitor for the defence, but the counsel for the Crown, a gentleman of very wide experience, "suggested that the proper thing for the solicitor for the defence to do would be to go and see the people."

I do not for a moment say that the learned counsel was inaccurate in his statement of a legal proposition. It may be that such is the law; but if it is what does it mean? The police have honest statements of citizens in their hands suggesting that a man has committed murder, they have equally honest statements from other witnesses that the murder has been committed by a woman. However mistaken they may believe the latter statements to be, surely fair play demands that the prisoner should have access to these statements for what they are worth. After all he is at present to be deemed an innocent man, he is not even committed for trial, and he is a citizen with as much right to the protection of the police as any other. If they have statements going to prove his innocence he ought to have access to them and be told who has made them so that he and his solicitor can see how far they help to prove his case. But no, that is not the official view. Counsel for the Crown no doubt states it correctly. The proper thing is for the solicitor for the defence to go about at the expense of the poor man he is defending and find these people out and take statements afresh. It is a denial of justice, the man has not the money to do it, his solicitor is not a charitable institution, and even if he were he probably has not money and staff for such work. In this particular case the whole of the police had scoured London for evidence to clear up the mystery. Surely when a citizen was charged with the offence public interest demands that the matter that has been discovered that goes to prove innocence should be as readily available as matter that goes to prove guilt. The present practice is to my mind a tradition, handed down from the bad old days, that needs to be swept away. We ought to free our criminal law from any shred of suggestion that the State is out to obtain a conviction rather than an acquittal. The State is only interested in the truth and justice of the verdict, and a true verdict obtained by methods of injustice is a crime against the community.

Much might be said on the inequality of punishments. The question of the advisability of corporal punishment is one upon which people hold strong and conflicting opinions. I am not a sentimentalist on this subject. I am told by some quite sane and scientific thinkers that for men, women and children of the hooligan class who have a mania for violence and destruction it is probably the most appropriate form of punishment. Its good qualities are that it is cheap; it is soon over, but irksome whilst it lasts; and it is said to appeal to the homeopathic instincts of the hooligan class who recognise the justice of meeting violence by violence.

Against these positive merits it is very unequal in its incidence; one victim will suffer more than others over the same punishment; and it is brutalising, in some measure, to the flogger and floggee. Too much may be made of this last argument, for nothing can be more brutalising and deadening to all hopeful and better instincts than long terms of imprisonment.

On the whole, my instinct is against flogging, because I am an optimist and believe that though it has had its uses in the past as an educative influence we have come to a state of civilisation when we should abolish if possible all violent or cruel punishments. There was a lot perhaps to be said for thumbscrews in their day, but that day is admittedly over. My grumble about the cat-of-nine-tails and the birch is not so much that the law should put them in the cupboard once and for ever, but that if they are to be used at all, their lashes should, like God's good rain, descend on rich and poor alike.

Take the crimes for which flogging is permissible punishment to-day. For adults there is garrotting, offences under the Criminal Law Amendment Act, procuring, etc., and being an incorrigible rogue. For lads under sixteen, stealing and malicious damage.

Now the first objection to these punishments is that whether flogging is or is not to be administered depends altogether on the taste and fancy of the presiding Judge. Some think it is an advisable form of punishment; others view it with disfavour. This element of human lottery in the administration of the law should surely be kept under as far as possible. Out of a hundred and forty-five criminals convicted of robbery only three were flogged. An intending robber therefore who studies judicial "form" in the statistics will see that it is about fifty to one against the cat, and if he is the one unfortunate surely he has a distinct grievance against the forty-nine lucky blackguards who escape.

When only three criminals receive this punishment in one year it is worth while considering whether it should be continued, or, if it is to be continued, whether it should not be extended to crimes against women and children and other nameless horrors. Highway robbers to-day are all of the lowest and the poorest, but in the other category of crime there are sometimes men of means who find their way into the dock.

If it ever comes to be recognised, as Butler in his beautifully prophetic account of the land of Erewhon would have us believe, that crime is a disease and should be treated by a family Straightener, as we now call in the doctor, then all doubts as to corporal punishment will disappear. The Erewhonians when they had lapsed from the path of honesty took, under their doctor's advice, a flogging once a week and a diet of bread and water for three months on end with the same heroism and resignation with which we undergo a cure at Harrogate after a London season. Once recognise that the birch rod is a cure for dishonesty, violence, and malicious injury to property, then all sensible men and women afflicted with these tendencies would welcome the cure and visit their Straightener as they now visit their dentist.

But at present we are far from the realisation of these sane, clear-sighted dreams. Flogging, as the law uses it as a punishment to-day, is not used, I fear, merely as a remedy or even a deterrent but rather by way of revenge. It is almost wholly used against the very poor and degraded. Even under the White Slave Act, I cannot remember any case in which it has been used against a well-to-do man. In any case it is only available against the actual procurer and not against the landlords, ground landlords, restaurant proprietors, and dressmakers, who knowingly share in the woman's earnings and live on them.

Flogging may, or may not, be an advisable form of punishment, but if it is to be used, let it be administered automatically and without fear or favour to all beasts and blackmailers and hooligans, be they rich or poor. At present the chances of a rich man being flogged for his wickedness on earth are about the same as those of the camel with an ambition to loop the needle.