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to us as it can possibly be either to Mr Fonblanque or Mr Grote. It is from our very worship of it that we are unwilling, prematurely as it seems to us, to recognise and sanction, by enactment, our absolute despair of accomplishing the end by higher means. Under the high franchise and low morality which exist at present, the ballot is not viewed with suspicion, only by parties meaning to misuse the powers which publicity confers. Mr. Fonblanque must be well aware how unpopular it is with the chief advocates of universal suffrage. Regarding the electoral privilege, in the hands of limited constituencies, as a public trust, they insist upon their right to have the means kept open to them by which they can know and judge the conduct of their trustees. We agree with them in thinking, that in political arrangements every thing may at times depend upon the order in which the several steps are taken. While, therefore, we are far from wishing to taboo any subject from its claim to be duly considered in its turn, we feel that the proper season for discussing to most advantage, the extension of the suffrage-triennial parliaments--or even ballot, has not yet arrived. If our superstructure is to be firm, we must lay our foundations lower. In doing this, it will be far the best to at once begin with the beginning. At our present stage of civilisation, there can be no security for liberty and order but in a proportional and adequate NATIONAL EDUCATION. it alone the people can learn their true position; can learn, on the one hand, what they are entitled to expect shall be done for them by laws; on the other, what are the things which lie beyond the power of individuals or governments, and in which the body of the people must depend almost entirely on themselves. In looking forward to the improvements, by which our system of Education is to become worthy of the name of National, the nature and application of the funds provided for it, is in England, and especially in Ireland, a very important feature. In this point of view, the imperfect manner in which, from the change of times, ecclesiastical revenues are at present fulfilling their original destination, will appear in a new and striking light. It is a question which no collateral difficulties attending the discussion of it can much longer keep from being discussed. The state of things is unknown in as much of the rest of Europe as pretends to civilisation. It belongs to that great chapter of complete Religious Toleration, in which we are far behind the moral and intellectual standard which we have reached on most other subjects. Its time, however, we trust, is at hand. For it is a state of things, which to discuss is to overturn.

Ву

Arr. VIII.--1. First Report from his Majesty's Commissioners

on Criminal Law. Ordered, by the House of Commons, to

be printed, 30th July, 1834. Folio. 2. Second Report from his Majesty's Commissioners on Cri

minal Law. Ordered, by the House of Commons, to be printed, 20th June, 1836. Folio.

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LL that we propose, in the present short article, is to give a

general statement of the objects of the Criminal Law Commission, and an outline of the results of its labours; in the hope that such an introduction may be of use in preparing the reader for any after enquiries in which we may engage, and for the discussions now prevailing upon the measures wbich the Commissioners have recommended, and the Government has introduced.

The object of the Criminal Law Commission has been frequently misunderstood. It has been supposed that the Commissioners* were appointed to frame a new Code of the Criminal Law, and give their views thereon; whereas they were merely directed to digest into one statute all the enactments concerning

crimes, their trial and punishment; and to digest into another • statute all the provisions of the Common Law touching the same; and to enquire and report how far it might be expedient to combine both those statutes into one body of the Criminal Law, repealing all other statutory provisions; or how far it might be ' expedient to pass into a law the first-mentioned only of those 'two statutes. To this, the main object of their enquiry, was added another, not unnaturally arising out of it, though foreign to the Criminal Law. They were to enquire how far it might be expedient to consolidate the other branches of the existing Statute Law, or any of them.

The First Report of the Commissioners was made in June, 1834; the Commission having been issued in July, 1833.

It begins with a statement of their opinion that it would be expedient to reduce the written and unwritten Criminal Law into one Digest; and then proceeds to state the operations necessary in the process of digesting the unwritten Law, and the materials from which the digest is to be made, viz., the decisions of the

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* The Commissioners were originally Messrs. J. Austin, Starkie, B. Ker, Wightman, and Amos. Upon Mr Austin going to Malta, Mr Jardine was appointed in bis place. It certainly would not be easy to find any where men better fitted for the satisfactory discharge of the important duty committed to them.

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

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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, bowever, be remarked, that most of the offences under this head have been delined 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 manisest 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,-resorming patentevils, removing inconsistencies, and supplying admitted defects. By the unwritten law, is ineant 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 baste) the principles which he finds in the books, and wbich 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 be bas still the same power of resorting to analogies; but he has a greater advantage ihan 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 fexibility 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.

The process, as partially applied, however, is not new. In 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

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