A Bill intituled, "An Act to amend and consolidate the Criminal Law of England so far as relates to the Definition of Indictable Offences and the Punishment thereof." (Ordered to be printed by the House of Lords, 1844.)

BEFORE we proceed to observe upon the subject of this bill, we propose to premise some general observations on the Criminal Law and upon the present state of that branch of the law in this country.

This branch of the law is in one sense the most important of all, for upon its vigour and efficacy the wholesome operation of all other, including remedial, laws depends. Its principle is of the most plain and simple character, that is, of prevention; consequently its construction is not encumbered with the consideration of a multitude of laboured distinctions such as are necessarily incident to branches of the system accommodated to the numerous and complicated exigencies of an advanced state of civilisation.

Considering the simplicity of this branch of the law as regards its principle, and its vast importance as regards society, the long-continued neglect of it by the legislature may seem remarkable. It may, however, safely be asserted that till lately the Criminal Law of England was more sanguinary in its penalties, and more unjust in its processes, than that of any other code or system of law throughout Europe.

The causes which have conduced to such evil results may be told in a few words. The foundations of this branch of the law were laid in times of barbarity, superstition, and ignorance, when life and liberty were held in small estimation, and when crimes of outrageous, and often open violence, required restraints of great severity, when commercial dealings were few, and criminal frauds comparatively

rare.

Laws adapted to the exigencies of such times could, it is obvious, be little suited to an improved state of civilisation; yet it might reasonably have been expected that at some time or other a general revision of this branch of the law would have taken place, for the sake of rejecting what was barbarous, obsolete, or useless, and substituting rules better accommodated to the exigencies of an advanced stage of society. Century after century has, expired, but no such amendment on any considerable scale has, till very recent times, been effected. Many of the most cruel and oppressive laws were long, it is to be feared, preserved for the sake of their tempting fruits - confiscations, forfeitures, and fines. It exceeds the bounds of charity to suppose that the harsh restraints imposed on persons whose conviction would produce profit, and which made a trial but an unmeaning form and a cruel mockery, were so long retained from any other motive.

Be this as it may, ages were suffered to elapse without any general reformation of the criminal law, although from time to time, as particular grievances pressed hard, or some act of great atrocity excited public feeling, and the legislature was stimulated to extraordinary exertion. Laws were passed to suit present exigencies. These, however, were usually of a desultory, isolated character, ill-penned, as Lord Coke observes, "being hastily made on the spur of the occasion." One great error was common to most of these: the legis lature seem in former times to have been constantly impressed with the notion that the efficacy of a penal law was directly proportioned to the severity of the punishment.

An extraordinary instance illustrative at once of the resort to this principle, and of its fallacy, is afforded by the statute 22 Hen. 8. c. 9., which was founded on a most atrocious offence committed by a cook in poisoning broth, by which a great number of persons lost their lives. Sir E. Coke, in speaking of the offence, says, "This offence was so odious that by Act of Parliament it was made high treason, and a more grievous and lingering death inflicted than the common law prescribeth, viz. that the offender should be boiled to death in hot water; upon which statute Margaret Davy, a young woman, was attainted of high treason for poisoning her mistress, and some others were boyled to death in Smith

field the 17th day of March in the same year." But this Act was too severe to live long, and therefore was repealed by 1 Edw. 6. c. 12., and 1 Mar. c. 1. Sir W. Blackstone 1, observing on the severe statute of 21 R. 2. c. 3., which made the bare purpose and intent of killing or deposing the King, without any overt act to demonstrate it, high-treason, says, "And yet so little effect have over-violent laws to prevent any crime, that within two years afterwards this very prince was both deposed and murdered."

Our limits forbid the entering into any lengthened detail of the particular instances in which the legislature have by sudden impulses, on particular and urgent occasions, been roused to the enactment of numerous desultory penal laws. Great and similar errors are characteristic of the whole; the same erroneous reliance on extreme severity as regards the penalty denounced, the same want of system in neglecting to accommodate the new law to the laws in pari materiâ already existing or to repeal any which had become unnecessary, pervade this branch of the statute-book.

To attribute such neglect to the legislature generally, without looking to the causes why so important a branch of the law should have been neglected and some inquiry as to the source from which amendment might properly have been expected, would be little better than a mere figure of speech.

The duty of submitting to the legislature such laws, and the necessary repair and amendment of such laws as properly speaking concern the State generally or the public in their aggregate capacity, must naturally and properly devolve upon the executive government, as much as any other matter does which concerns the public weal; and so also must all penal laws in respect of injuries to individuals, to the prevention of which the power of mere remedial laws is insufficient, and which therefore require more forcible restraints.

Essential as the vigorous operation of the Criminal Law is to every interest, public or private, incident to society, absolutely necessary as it is for the protection of the State, the

1 Comm. B. 4. c. 6. It is ever a rule (says Lord Bacon, in his proposal for amending the laws of England), that any over-great penalty (besides the acerbity of it) deadens the execution of the law.

it

public peace and tranquillity, the lives, liberty, and property of all, its general regulation and correction belongs to no individual, and excites little individual interest: it belongs peculiarly and solely to the State. The prospect of remedy by a civil action, where a remedy is given, stimulates an injured party to pursuit. Failures in such cases, from the want of adequate legal means of remedy, are the subject of complaint, may be of redress: in criminal proceedings it is far otherwise, and the party injured is not stimulated to exertion by the hope of remedy1; he is restrained by humane feelings, and has a great aversion to add to his loss by incurring the expense and trouble of prosecution. It is no adequate compensation that the miserable offender is hanged or transported, and should he through defect in the law escape, the prosecutor does not complain as a man does who has lost his suit for damages. The affair is altogether an unlucky accident, which is not likely to happen to him again, and it is therefore not worth while to think any more about it. Such being not uncommon feelings as regards even persons who have suffered injury, they are little likely to unite for the purpose of suggesting systematic penal laws for the benefit of the public.

We refer to one striking instance amongst many which might be cited in illustration of the preceding remarks. It is notorious that where a defendant in a civil case thinks that he has suffered wrong from a jury who have found a verdict against him to the amount of 201., the proper Court is open to receive his complaint, the matter is fully investigated, and justice is done; yet had the verdict affected his life, or the whole of his personal property, in a criminal proceeding, the gates of justice would have been fast closed against him.2 We should deviate from our present purpose in making any other remark upon this contrast upon the present occasion, than by observing how much more easily improvements are yielded to pressure from private interests than to such as are of a public nature to those which merely concern property, than to those which involve life and liberty.

It may perhaps appear to be somewhat singular that the

1 With the exception of the few instances where a prosecutor may be entitled to restitution.

2 The exception to the rule, where the case is sent from the Queen's Bench to be tried at the sittings or assizes only renders the general rule the more remarkable.

exertions of professional lawyers should not have contributed more largely to the improvement of the legal system. Unfortunately, however, law in this country has been rather practised as an art than cultivated as a science. Subject, no doubt, to many great exceptions, lawyers regard a knowledge of the law as a means of livelihood, the source of wealth, a steppingstone to dignities, caring little for any selection of principles or regular deduction of truths, or the scientific application of those principles and conclusions to the exigencies of society. "We are all" (says Sir Henry Spelman) "for profit, and lucrando pane taking what we find at market, without inquiring whence it came.”

It must, however, be admitted that the oppressive cha racter of the Criminal Law in past times, in refusing to a party accused the means of defence to which he was in natural justice entitled, particularly in excluding him from the benefit of defence by counsel except upon technical points, and the cruel manner in which laws in themselves so harsh were administered, and by which their severity was aggravated, were circumstances which well might warrant the indifference of lawyers (whose exertions were thus unjustly limited) to this branch of their profession. Mr. J. Foster in his Discourses deems the very reading of the proceedings, in criminal courts before the Revolution, to be a penance.

Whilst many who are not lawyers are apt to regard the legal system as unintelligible to all but lawyers, and its mysteries as penetrable by lawyers themselves only, after twenty years' lucubration, there are others who fall into the opposite extreme, and imagine themselves to be fitted to legislation by mere intuition. Sir W. Blackstone observes1, "Indeed it is really amazing that there should be no other state of life, no other occupation, art or science in which some method of instruction is not looked upon as requisite, except only the science of legislation, the noblest and most difficult of any. Apprenticeships are held necessary to almost every art, commercial or mechanical; a long course of reading and study must form the divine, the physician, and the practical professor of the law, but every man of fortune thinks himself born a legislator."1

11 Bl. Comm. p. 9.