556 PROCEEUINGS OF SECTION G. 



danger of any arbitrary or cruel punishment is more imaginary 

 than real. Nevertheless, if it were possible it would be better to 

 prevent error rather than cure it. 



Mr. Justice Hawkins contends that the inequality of sentences 

 will never cease until some general leading principles to be observed 

 in awarding punishment are authoritatively laid down for the 

 guidance of the court, and suggests a joint commission of lawyers 

 and laymen for the purpose of framing such a code. He does not 

 approve of the proposed court of criminal appeal. Mr. Poland 

 does not think the present system can be altered with advantage, 

 and remarks that Judges and Magistrates now generally consider 

 that the certainty of punishment is of more consequence than the 

 severity. He seems to think that to 



Fill the seats of Justice 



With good men, not so absolute in goodness 



As to forget what human frailty is, 



is all that is required in England. 



My own view is that much assistance might be obtained from 

 such a commission as that proposed by Mr. Justice Hawkins, so 

 long as the result of its deliberations left the Judges sufficient 

 latitude to deal with exceptional cases, for which in the nature of 

 things it seems impossible to provide. The First Offenders Act 

 is an admirable provision, with the power it gives to refrain from 

 punishing and to release the accused upon recognisances. It is a 

 statutory declaration by the Legislature as to the spirit in which 

 first offences should be dealt wdth. If Dr. Strahan's proposal, or 

 anything approaching to it, becomes law, there will be little diffi- 

 culty in knowing what sentence to award the habitual criminal — 

 the most troublesome of all. It is much easier to deal with the 

 occasional or accidental criminal. In proportion as education 

 advances — and, to my mind, the spread of education means the 

 diminution of crime — men's minds become enlarged, and their 

 sensibility increases. It has been justly said that punishment 

 " must be according to the spirit of the age." We have read 

 what punishment of criminals meant in a less enlightened age. 

 The retrospect is a dismal, if not a humiliating one. Great and 

 relentless severity failed to cure the evil. Under more benign 

 laws it has decreased, and is generally far less important than it 

 formerly was. Nevertheless, it is necessary to avoid the substitu- 

 tion of an exaggerated or misplaced sympathy for discriminating 

 and properly calculated severity ; in other words, punishment 

 should be just and not vindictive, its certainty being of far greater 

 importance than its severity. 



