The Pamphlet Collection of Sir Robert Stout: Volume 71
Justice is the foundation, or mainstay, of kingdoms, Iho rock upon which kingdom are founded.
He consideration of the extension of the educational and [unclear: banking] institutions at present carried on by the Government for [unclear: the] convenience and profit of the people, involves State [unclear: Socialist] questions properly so called; the subject now to be dealt [unclear: with]—although it does to some extent affect society—might [unclear: porhaps] more justly held a mere matter of reform involving the [unclear: interests] of only a few, and that few belonging to a class which seldom [unclear: succeeds] evoking much sympathy. This subject, however, differs from [unclear: those] that have gone before in at least one aspect, that is to say—if the [unclear: view] put forward in regard to the matters dealt with heretofore were [unclear: true] they were not new; but now, if the views advanced may not be [unclear: accept] as true, they have at least the negative and interesting [unclear: advantage] being new.
There has been an idea extant and it has continued to this [unclear: have] extremely popular that, in all cases where the law has been violated, [unclear: any] person charged with the offence is held to be innocent until [unclear: he] has been proved guilty. Than this idea there has never been a [unclear: greater] mistake. From early times, through the medium of property-[unclear: represent] ing legislatures, property has taken the very best care of its [unclear: interest] if only in such trifling and innocuous little matters as the [unclear: enaclaa] of game laws. Down to quite a recent period the punishments [unclear: infliced] for crimes committed against property were at least as severe as [unclear: for] those against the person. That this has been so is somewhat [unclear: notorious] Although the criminal code has been to a very considerable [unclear: extent] humanised, yet it is a fact that the foundation upon which it [unclear: was] originally built remains the same, the vengeful spirit against [unclear: possible] offenders is still an active power. If any individual is charged [unclear: with] transgressing the sacred rights of the person or the no less [unclear: sacred] rights of property, the whole action of tho State from that [unclear: houn] based upon the presumption of his guilt; the responsibility of [unclear: provision] his innocence is altogether his affair. Of course the laws in [unclear: force] must be respected, and punishment for their violation must be [unclear: inflict] upon the transgressor; no one—not even the criminal—doubts [unclear: thats] but what is suggested here has relation to the person arrested [unclear: being] held innocent until he has been found guilty, and the course which the page 49 State follows upon that hypothesis. The constable who makes the arrest and who represents the State believes him guilty; the deaective employed by the State to work up the case believes him guilty; the gaoler who receives him does the same; so also does the inspector before the Magistrate, and the Crown Prosecutor before the [unclear: Judge.] The State pays all these people, and all the vast machinery of the State—telegraphs, telephones, Post Offices, railways, police, gaols, officers in offices—are employed to bring the wretch to what is called justice. At last, when no single stone has been left unturned to secure the conviction of the accused, he is face to face with tho Supreme Court, and with a gentlman—an able, eloquent gentleman, who through a long experience in the conduct of many similar prosecutions is not likely to overlook a single point—he is brought to trial. It is the simple truth that though by a beautiful legend he is still held to be innocent, the State has put forth the whole of its resources against, and done not tne smallest thing for him. If the popularly-supposed to-be-innocent accused has the good fortune to possess money and friends, it is open to him employ them in the conduct of his defence; but, however he may be situated, it is scarcely possible that his resources can equal those of the State employed against him. If unfortunately he has neither money nor friends, then—Heaven help him! There is also a popular belief that, in such desperate straits as have been indicated, the accused may have counsel allotted to him by the Court; but if the case be simply of the vulgar complexion of burglary, forgery, larceny or assault, his application is not likely to receive much further consideration than a shrug of contemptuous indifference. If, indeed, the charge against him was of a highly sensational and capital nature—if, for instance, he was charged with all the murders of a Deeming—then, of course, the position might in this respect be different; time would be granted, counsel allotted, and many other considerations allowed. There are certain privileges for the great criminal, but none at all for the small one. It may be urged that such a case as that of a Deeming would involve a trial for life, but what does that matter so far as equality in the administration of justice is concerned? To many, the loss of liberty—the loss of honour—is even worse than death. Then, if it should so happen that in a minor case an accused person did apply to have counsel allotted to him and his request was granted, the learned counsel—even if he took up the personally unprofitable undertaking with the keenest interest and the very best heart—would labour under every disadvantage. How could he be expected to do anything beneficial for a prisoner he had probably never seen before and with the details of whose story he was perfectly unfamiliar? Compare his position with that of the representative of the State who has had weeks, possibly months, in which to imprint every salient feature against the prisoner upon his mind. Now, it will scarcely be questioned that many innocent persons have stood at the bar of justice, after undergoing page 50 ordeals every one or which were punishments, and the question asked here are:—What has the State done to help them to prove their innocence? Were they not justly entitled to took to the State for as energetic and careful a defence as prosecution? Is it not far more [unclear: to] the interest of the people that he should be proved innocent—if the proof of hi a innocence is possible—than that he should be proved guilty? Why should exertion be strained by the State upon the hypothesis that he is criminal, and not a finger be advanced by the State upon the hypothesis that he is innocent? Is it not the fact [unclear: that] the State does absolutely nothing to help an accused to vindicate himself, a proof that the spirit of revenge which found such large expression for ages still remains in our law and in its practice?
What is asserted here is that, upon the principle of strict and equal justice, the State ought to do at least as much on behalf of as accused as it does against him. If all the resources of the State are employed to prove him guilty, those same resources should be equally employed to prove him innocent. That if the State provides at the expense of the people a learned, experienced, capable and [unclear: equally] counsel to prosecute, an ofticer at least as gifted should be found by the State to conduct the defence. It is better that ten guilty should escape hanging than that one innocent person should suffer. This is the accepted doctrine upon which the laws of all civilised States are supposed to be based, but in their administration it is not so. The State requires someone to pay the penalty for the commission of a crime, and, in its eagerness in the pursuit of the criminal, omits to afford to a suspected person that just protection which is his due Again, when at the sacrifice of all his financial resources, the accused has succeeded in demonstrating that the State has been entirely wrong in its conclusions, he is flung from its grasp without the shadow of compunction to starve, or become the law breaker be was supposed. That the Queen—who is the head and front of the State—can do no wrong, is another of those delightful little fictions which have come down to this present from remote and semi-barbaric periods; it was originally invented, no doubt, to protect the State from the consequences of the blundering of the State; but why the State should not frankly "own up" to its blundering? and make adequate and just compensations for its wrongs, is one of the things which even the most intelligent minds will find a difficulty in reconciling to reason.
In New South Wales the administration of the criminal law has been amended to admit of a prisoner, when the case for the Crown has been concluded, going into the box and giving evidence in his own defence in precisely the same manner as has been ever allowed in civil cases Surely it is a reflection upon the acumen of our age that a reform so obviously just and necssary has been so tardy in coming into operation? Some two years ago, at the first sessions of the Supreme Court in Sydney after this amend m en i of the law had come into force, an undefended prisoner was placed upon trial, against whom the evidence page 51 seemed very clear and led conclusively to the guilt of the accused; so much so, indeed, that there were few in court who entertained doubt of his urimuiality. He claimed the right which the amended law allowed and gave evidence; he was subjected to cross-examination by the Crown, and his facts—which, while not contradicting any of the previous testimony, threw quite a new light upon all the circumstances—were found perfectly consistent and could not be shaken. The prisoner was almost immediately acquitted, His Honour the judge said, he quite concurred in the verdict of the jury, and the proceedings in that case allowed conclusively the wisdom of the new law, which For the first time had been tested by practical operation. He congratulated die lately accused upon the fact that he had had the advantage of a law which enabled him to establish his innocence, and he congratulated society that a law had been passed which thus promised to operate so satisfactorily in ensuring the acquittal of really innocent persons. Since the time of that first case, there have been several trials in which prisoners have given evidence with a like result, until one shudders to think of the thousands who have gone to a deathlike captivity, or to death itself, with gagged mouths for crimes of which they have been guiltless.
Very little reflection, however, will suffice to convince that even such an amendment of the law as this by no means meets the requirements of the position. A prisoner entirely innocent of the charge preferred may be slow of apprehension, dull of intellect, weak in nerves; he may have the fatal gift of loquacity, or prove equally stubborn in taciturnity; he may be liable to fits of excitement, hysteria, epilepsy; or the prisoner may be a woman of a too timid disposition, and wholly unconscious from extreme sensitiveness to all that is taking place before her. Under such circumstances of what advantage is the right to go into the box and tender evidence? Most readers of modern fiction will remember the story of "Dark Days," by Hugh Conway. It is that of a woman upon whom the conviction slowly forces itself that during a period of delirium arising from fever she had sain her first husband. Her second husband, a doctor who had been her lover before her first marriage, firmly believed that she had commtted the crime, for lie had found hot upon that fatal night standing in a dazed condition beside the body with the still-reeking instrument of leath in her hand. Upon the news reaching them that a man had been arrested for the murder, and was about to be tried for his life, husband and wife immediately hasten to England to reveal the truth md save the innocent. They obtain entrance to the Court not a monent too soon; the interrogatory is put to prisoner, "guilty or not guilty;" he is about to reply in the negative, hub upon sight of the woman to her amazement and the utter bewilderment of her husband be pleads guilty; and it was even so, he was the actual and sole perperator of the crime. This is fiction of course, but truth is sometines even stranger than fiction, and it is scarcely possible for anyone who reads page 52 "Dark Days" to fail to realise that the story might very easily [unclear: have] been true. What then? Hero is the illustration of a case known [unclear: to] only two persons, and both are thorougldy convinced that one of [unclear: them] was guilty of the perpetration of a crime, and in that belief they [unclear: purposed] making a surrender to justice; had the actual criminal [unclear: not] pleaded guilty, how would the cause of justice have fared then? [unclear: It] seems a vain thing to attempt to provide for every possible contingency but at least the appointment by the State of a defender who would have brought the experience of an acute analytical mind to their assistance would not have been productive of injury to the cause of justice and truth.
No doubt practical experience is necessary to bring fully home to the mind the gross partiality of the action of the State in criminal prosecutions. One needs to stand in the dock an innocent man, with out money and with but a few helpless friends, and survey from that precipitous eminence the learned Crown Prosecutor, and all the [unclear: host] of officers of justice who have gone before him in the struggle to secure conviction, before the wholly one-sided action of the State in the proceedings can be at all adequately realised. Yet a very limited imagination can do much to picture the terrible horror of such a situation. Those who suffer unjustly, very fortunatelyt may he few; they go to their doom, and, like the noble steed that is broken, very speedily become case-hardened and utterly callous, so that when liberty comes to them again—if it ever does come—they have no heart to point out how a great free people has been perfectly even-handed in its course to ensure justice, and with every shred of character torm from them and trampled in the mud, no one would heed them if they had. The time is surely coming when the intelligence of people will awaken to the fact that their State does nothing to ensure protection to the innocent, and they will insist that if the Crown lifts a strong left arm to smite the guilty, a powerful right arm shall also be exerted to shield the innocent; that if there are learned and experienced Crown prosecutors to give assistance to the strong, there shall be equally learned and experienced Crown defenders to protect the weak; so that no mortal—however destitute—shall be hustled into moral destruction without an effort being made to ensure that all has been done for him that was really possible. This writer may not live to see his idea in this respect carried into full fruition—he will soon pass away, but his words will not. Other minds will see this thing in its truth, and other tongues and other pens—more able, more powerful, more eloquent—will take up the theme and carry the work onward. For ages the criminal code has been a shocking illustration of the horrible cruelty and revenge of semi-barbaric times; the progress of reform—at first instituted with a sweeping hand—has since been desultory and slow, until it has lately reached a full stop; but the partiality, the leaven of the old spirit of vengeance is still found in tho administration of our criminal laws, and the humanitarian principles of just and thinking men will not tolerate its existence much longer.