صور الصفحة
PDF
النشر الإلكتروني

Courts dispersed through the printed and MS. reports (reaching up to the earliest times of our judicial annals), and the different text-writers of authority. It then enumerates at length those multifarious sources from which the Common Law relating to crimes must be collected; with the view of showing the uncertainty and discrepancies of those authorities, and the space over which they are scattered. Thus the decisions on Criminal Law are not confined to Crown cases, or to those in the Court of King's Bench (the great Criminal Judicature), or those at Nisi Prius, or those on Writs of Error in the House of Lords; but are even occasionally to be met with in reports of cases in Chancery;—nay, a great number of rulings, on points of Criminal Law, are to be found in private manuscripts alone. The Irish decisions, well entitled to consideration, and having undoubted weight as judicial authorities, are little known to English lawyers, even through the medium of text-books; and the Commissioners remark on the singular circumstance of the decisions at Sessions- the Court where by far the greatest part of the criminal jurisdiction is exercised-being hardly ever cited even before the same kind of tribunal. Of the text-writers, many are referred to which are ancient, and not in general use even with the profession, and almost inaccessible to the public-as Bracton, Lambard, Stanndeforde, Dalton, &c., which have become for the most part obsolete, from the changes made in the law,-though still of great authority where modern decisions are silent or conflicting; while the works of modern text-writers, though some are of good repute, must be very cautiously relied on as authentic evidence of the Common Law.

The Report then states the difficulty of extracting plain, definite general rules from the materials; and assigns the causes of that difficulty. These are,-that the reported decisions, or textbooks, are defective in the statement of general rules--that discrepancies are to be met with in books of authority-that contradictory principles exist in the Common Law, which has grown up in the course of ages out of ancient policy and manners, and been accommodated to the altered circumstances of the times by exceptions successively introduced-that there are insulated or anomalous decisions to be found, irreconcilable with any rule or principle—and that the Criminal Law has undergone fluctuations, and has adopted occasionally subtle, refined, and useless distinctions.

The Commissioners recommend that one digest should be made. In order to show, as it were practically, how vague, how uncertain, and how inconsistent the actual Common Law is, and from

what a number of sources it must be derived, they give a specimen of a Digest of the Common Law relating to Theft. It must, however, be remarked, that most of the offences under this head have been defined by statute. Still the Common Law exists unrepealed, and must occasionally be executed; and, what is worse, its inconsistent and varying principles are applied even in the construction of the Statute Law. The most cursory view of this Specimen-Digest will show the barbarous absurdity, and the manifest incompleteness of the existing law, as it is now to be gathered, and that imperfectly, from a thousand sources.

The object of the Commissioners in giving it, evidently was to show, that it would be almost useless labour to digest the whole mass of absurdity to be found in the Common Law relating to criminal proceedings; and they suggested that before going further, they should have powers to consider What partial 'alterations might be necessary or expedient for more simply and 'completely defining crimes and punishments, and for the more 'effectual administration of justice.' These were granted them by the Government,-as appears by their Second Report which was printed in 1836; and they now considered the possibility, expediency, and utility of digesting the Criminal Law.

No subject has been more misunderstood than that of Codification. There are many modes of making a code: there may be an entire new body of laws-a partial re-casting, and a retaining part of the old, and adding some new-or there may be merely what the Commissioners propose; viz., a digest of the unwritten with the written law,-reforming patent evils, removing inconsistencies, and supplying admitted defects. By the unwritten law, is meant the principles of the law as found by the judges in the text-books and reports. What is the process by which a judge now makes the law? A case arises;-he either decides it on the authority of some similar decided case; or, if he finds none (and seeing the inextricable mass of decisions, there may be many which he does not find), he applies as well as he can (and often in haste) the principles which he finds in the books, and which he conceives govern the case; or he adopts some imperfect analogy. Now, what is proposed? Merely to digest and systematize all these cases and principles to which the judge resorts, and furnish them ready to his hand, and just by the same process which he adopts ;-only doing this more carefully and at leisure, and with the advantage of having the whole field under view at once; and where the digest shows imperfections or inconsistencies, to supply or remove them by new enactments. What would be the result? The judge would have a complete

systematic digest, in which he would find all the decisions and principles embodied, with the evils of inconsistency, as far as possible, removed. In fact, he would have the manufactured instead of the raw material to work on. But, with this exception, his range is in nowise abridged: he still, in cases unprovided for, has the power of applying principle (and all the principle he could resort to would be found in the digest), and he has still the same power of resorting to analogies; but he has a greater advantage than before; because, instead of being hampered by absurd principles, or by decisions and principles applicable to a state of manners and law no longer existing, or by a set of conflicting decisions, he would repair to a purified source from which to draw his new law. The proposed digest, therefore, would in nowise abridge the vaunted flexibility and comprehensiveness of the common law. This is the great argument in favour of codification.

There is another argument in favour of its being first tried in Criminal Law. As no rights of property are affected, no difficulty arises in adapting the new law to existing transactions; and in any mistake or difficulty, the construction is certain to be in favour of mercy.

In

The process, as partially applied, however, is not new. the Criminal Law much already has been done by Sir Robert Peel in the way of digesting, of removing inconsistencies, and repealing obsolete and absurd enactments. In the Civil Law, Sir Edward Sugden's Acts-which, in fact, are a digest of the cases and Statute Law relating to the conveyance of property by infants and others incapacitated,-are a specimen of a digest ably executed; and affording a proof that this may be done safely, even with respect to the laws of property. Again, the Fines and Recoveries Act of 1833 is another and still more important example; it repeals volumes on volumes of absurd and useless law. But it may truly be affirmed that the consolidations of the Criminal Law already made only render the imperfections of what is left the more glaring.

Whilst the Commissioners were at work on their laborious task (the Digest), they were called on to intermit their labours, and to report on the subject of 'Prisoners' Counsel,' and the 'Punish'ment of Death.' Their Second Report contains an elaborate statement on both these subjects. The result was the passing the Prisoners' Counsel Bill last session; and it is only fair to observe, that none of the defects which have been complained of are attributable to the Commissioners; as the clauses added in Parliament were in direct opposition to their opinions. Another

result of the same Report is the introduction this year, by Lord John Russell, of the nine bills for the abolition of the punishment of death in many cases, and for other purposes. Of these bills we shall speak, after concluding our summary of the work of the Commissioners. They were again called off from their principal enquiry by a direction to consider and report whether or not there should be any different mode adopted in the trial of Juvenile offenders. There may be different opinions of the remedy which they have suggested, viz. giving the Magistrates a power of summary conviction and of punishment, if not exceeding twelve months' imprisonment. But no doubt can be entertained of the value of the information contained in the Report. They have been all the while proceeding with the Digest, which, of course, must be a work of more time.

The expediency of digesting the existing General Statute Law, was the other subject of enquiry intrusted to the Commissioners. On this most important point they also made a very full and able report, evidently the work of great labour. Although it has been for two years before Parliament, it has singularly enough hardly ever been taken notice of by any one. For the first time, they have entirely considered the whole subject; and in a full and fair manner pointed out the evils of the present mass of confusion contained in the Statute-Book-the mischiefs which result in all new enactments from the confusion in the old ones-and the consequences of a want of systematic method in framing all Acts of Parliament. But they do not disguise the difficulty and labour which must attend the execution of such a task. From the time of Edward VI. the project has been recommended by all the constituted authorities, and by the most eminent names in the law; by the Sovereign, by the Resolutions and Petitions of both Houses of Parliament, by Lord Keeper Bacon, Lord Bacon, Lord Hale, Mr Justice Blackstone. During the Usurpation some progress was made in executing the design; after the Restoration it was resumed; and Nottingham (then Finch), Maynard, and Atkyns, were a Committee of the Commons to confer with the Lords, the Judges, and others of the long robe, 'who have already 'taken pains, and made progress in perusing the Statute Laws, ' and to consider of repealing such former Statute Laws as they 'shall find necessary to be repealed; if expedient for reducing all 'Statute Laws of one nature under such a method and head as may 'conduce to the more ready nnderstanding and better execution ' of such laws.' (Commons' Journals.) So explicitly was the principle of codification, as regards written law at least, recognised by Parliament, as early as the year 1666! Finally, in 1816, the

two Houses of Parliament joined in a resolution for completely digesting the Statutes; the Lords having declared the expediency of employing one learned person with twenty assistants in that work. The Commissioners, besides giving an elaborate and interesting statement of the inconveniences attending the want of a complete digest, have examined practical lawyers on the subject; and they have likewise given the evidence of an eminent American lawyer, with some documentary evidence showing the progress made in this work by the United States, and the benefits which have resulted from it. The Digest of the Criminal Law, in which the Commissioners are themselves engaged, is stated to be in considerable forwardness, and to contain not merely the definition of offences, but the whole Law of Criminal proceedings.

We have adverted to the Nine Bills already introduced by the Government upon the Reports of the Commissioners, and which, it is probable, will have been passed into laws before these pages see the light. Into the particulars of these bills it is not our purpose now to enter, further than is necessary for giving the outline of the change which they are intended to make upon the Criminal Law. The opinion of the Commissioners (as stated in the Second Report, p. 32) is, that capital punishment ought (subject to the exercise of the Royal prerogative) to follow conviction of a capital offence-and therefore they have recommended a large reduction of the number of these offences; and have given a full classification of them, and of the other offences not to be made capital, and of the various punishments to be inflicted for these. But it is of course for the Government and the Legislature to determine whether or not the number of capital offences shall be still further reduced. The Commissioners could pronounce no opinion in favour of retaining so many; and when it is considered that the main object in diminishing their number at all is to introduce certainty into the criminal code that the principal argument for the proposed change is the expediency of making the denunciation of punishment real, and no longer a mere name there is no wonder that the greatest anxiety should be felt lest the result of these measures may be to increase the number of instances in which death is actually inflicted upon offenders. This consideration it is which we earnestly press upon the attention both of the Legislature, of the Judges, and of the advisers of the Crown; feeling that such a consequence is inevitable, if it shall be understood that, after the alteration is effected, the punishment must be inflicted in each case of conviction; and yet aware that unless such a fatal certainty is the result, the alteration will only have diminished in degree the evil which

« السابقةمتابعة »