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Blackwood's Edinburgh Magazine — Volume 55, No. 339, January, 1844
STATE PROSECUTIONS
The Englishman who, however well inclined to defer to the wisdom "of former ages," should throw a glance at the stern realities of the past, as connected with the history of his country, will be little disposed to yield an implicit assent to the opinions or assertions of those, who maintain the superiority of the past, to the disparagement and depreciation of the present times. Maxims and sayings of this tendency have undoubtedly prevailed from periods of remote antiquity. The wise monarch of the Jewish nation even forbade his people to ask "the cause that the former days were better than these;" "for," he adds, "thou dost not enquire wisely concerning this." Far different would be the modern precept of a British monarch. Rather let the English subject "enquire diligently concerning this," for he cannot fail to enquire wisely. Let him enquire, and he will find that "the former days" of England were days of discord, tyranny, and oppression; days when an Empson and a Dudley could harass the honest and well-disposed, through the medium of the process of the odious star-chamber; when the crown was possessed of almost arbitrary power, and when the liberty and personal independence of individuals were in no way considered or regarded; days when the severity of our criminal laws drew down from a French philosopher the sneer, that a history of England was a history of the executioner; when the doomed were sent out of the world in bands of twenty, and even thirty, at a time, at Tyburn or at "Execution dock;" and when, in the then unhealthy tone of public morals, criminals famous for their deeds of violence and rapine, were regarded rather as the heroes of romance, than as the pests and scourges of society. Let him enquire, and he will find that all these things have now long since passed away; that the rigours of the criminal law have been entirely mitigated, and that the great charters of our liberties, the fruits of accumulated wisdom and experience, have now been long confirmed. These facts, if universally known and duly pondered over, would go far to banish discontent and disaffection, and would tend to produce a well-founded confidence in the inherent power of adaptation to the necessities of the people, possessed by the constitution of our country. Thus, the social wants of the outer man having been in a great measure supplied, the philanthropy of modern times has been chiefly employed on the mental and moral improvement of the species; the wants of the inner man are now the objects of universal attention, and education has become the great necessity of the age. Hitherto, the municipal laws and institutions of this country have been defective; inasmuch as they have made little or no provision for the adequate instruction of the people. Much, no doubt, has been already done, and education, even now, diffuses her benignant light over a large portion of the population; among whom, the children of the ignorant are able to instruct their parents, and impart, to those who gave them being, a share in the new-found blessing of modern times. Much, however, remains still to be done, and the splendid examples of princely munificence which a great minister of the crown has recently shown the wealthier classes of this wealthy nation, may, in the absence of a state provision, have the effect of stimulating private exertion and generosity. In spite, however, of the moral and intellectual advancement of the present age, the passions and evil designs of the vicious and discontented are still able to influence vast masses of the people. The experience of the last few years unfortunately teaches us, that increased knowledge has not yet banished disaffection, and that though, during the last quarter of a century, the general standard of the nation's morality may have been elevated above its former resting-place, that education, in its present state of advancement, has not as yet effectually disarmed discontent or disaffection, by showing the greater evil which ever attends the endeavour to effect the lesser good, by violent, factious, or seditious means.
Within the last thirteen years, the government has been compelled, on several occasions, to curb the violence and to repress the outbreaks of men who had yet to learn the folly of such attempts; and the powers of the executive have been frequently evoked by those who, of late years, have wielded the destinies of this country. Several state prosecutions have taken place during this period. They never occur without exciting a lively interest; the public eye is critically intent upon the minutest detail of these proceedings; and the public attention is concentrated upon those to whom is confided the vindication of the public rights and the redressing of the public wrongs. It has been often asked by some of these critical observers, How is it that, when great crimes or misdemeanours are to be punished, when the bold and daring offender is to be brought to justice, when the body politic is the offended party, when the minister honours a supposed offender with his notice in the shape of criminal proceedings, and the government condescends to prosecute—how is it, it has been asked on such occasions, when the first talent, science, and practical skill, are all arranged against the unfortunate object of a nation's vengeance, that the course of justice should be ever broken or impeded? Is the machinery then set in motion in truth defective—is there some inherent vice in the construction of the state engine? Is the law weak when it should be strong? Is its boasted majesty, after all, nothing but the creation of a fond imagination, or a delusion of the past? Are the wheels of the state-machine no longer bright, polished, and fit for use as they once were? or are they choked and clogged with the rust and dust of accumulated ages? Or, if not in the machine, does the fault, ask others of these bold critics, rest with the workmen who guide and superintend its action? Are the principles of its construction now no longer known or understood? Are they, like those of the engines of the Syracusan philosopher, lost in the lapse of time? Is the crown less efficiently served than private individuals? and can it be possible, it has even been demanded, that those who are actively employed on these occasions have been so long removed on the practice of what is often deemed the simpler portion of the law, and so long employed in the higher and more abstruse branches of the science, that they have forgotten the practice of their youth, and have lost the knowledge acquired in the commencement of their professional career? Lesser criminals, it is said, are every day convicted with ease and expedition—how is it, therefore, that the cobweb of the law holds fast the small ephemeræ which chance to stray across its filmy mesh, but that the gaudy insect of larger form and greater strength so often breaks through, his flight perhaps arrested for a moment, as he feels the insidious toil fold close about him? It is, however, only for a moment; one mighty effort breaks his bonds—he is free—and flies off in triumph and derision, trumpeting forth his victory, and proclaiming his escape from the snare, in which it was hoped to encompass him. The astute and practised gentlemen thus suspected, strong in the consciousness of deep legal knowledge, and ready practical skill and science, may justly despise the petty attacks of those who affect to doubt their professional ability and attainments. Some in high places have not hesitated to hint, on one occasion, at collusion, and to assert, that a certain prosecution failed, because there was no real desire to punish.
Such is the substance of the various questions and speculations to which the legal events of the last thirteen years have given rise. We have now collected and enumerated them in a condensed form, for the purpose of tracing their rise and progress, and in order that we may demonstrate that, though there may possibly exist some reasons for these opinions, founded often on a misapprehension of the real circumstances of the cases quoted in their support, that they have, in fact, little or no substantial foundation. With this view, therefore, we shall briefly notice those trials, within the period of which we speak, which form the groundwork of these charges against the executive, before we proceed to state the real obstacles which do, in fact, occasionally oppose the smooth and rapid progress of a "State Prosecution."
The first of these proceedings, which occurred during the period of the last thirteen years, was the trial of Messrs O'Connell, Lawless, Steel, and others. This case perhaps originated the opinions which have partially prevailed, and was, in truth, not unlikely to make a permanent impression on the public mind. In the month of January 1831, true bills were found against these parties by the Grand Jury of Dublin, for assembling and meeting together for purposes prohibited by a proclamation of the Lord Lieutenant; and for conspiring to do an act forbidden by the law. By every possible device, by demurrers and inconsistent pleas, delays were interposed; and though Mr O'Connell withdrew a former plea of not guilty, and pleaded guilty to the counts to which he had at first demurred—though Mr Stanley, in the House of Commons, in reply to a question put by the Marquis of Chandos, emphatically declared, that it was impossible for the Irish government, consistently with their dignity as a government, to enter