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 But this Act was too severe to live long, and therefore was repealed by 1 Edw. 6.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.

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, it 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 207., 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

1 1 Bl. Comm. p. 9.

After all, the habit of neglect incident to the former class is less to be complained of than the crude notions and injudicious meddling often attributable to the latter.

The inadequacy of the ancient criminal laws to the ex igencies of a more improved state of civilisation, coupled with neglect on the part of the Legislature to make corresponding alterations suitable to the wants of society, have been productive of important consequences. The ministers of justice, left without direct and express laws adequate to the restraint of offenders, were under the necessity of adopting one of several different courses, of submitting to the Legislature the difficulties which thus occurred', and requesting a remedy by express declarations or enactments, or of declining to go beyond the express law and the authority of precedent, and thus, as it were, forcing the consideration of the subject on the Legislature 2, or of extending from time to time already existing rules, by the aid of constructive interpretations and enlargements, or even by making new application of principles to cases before unprovided for. Direct communication between the legislative and judicial powers would have been little consonant to habits and practice of very early growth, and originating in causes for which we have at present no leisure for inquiry. It seems to us that applications to the Legislature for alterations or extensions of the existing law would more properly emanate from the ordinary executive powers of the State.

When it is considered how long the practice has obtained of supplying or palliating legal defects by indirect means, rather than that present offenders should escape, it is not surprising that the evils naturally resulting from legislative supineness should have been greatly alleviated.

Which they were required to do in the particular case of treason.

2 "The disorders," says Beccaria, "that may arise from a rigorous observance of the letter of the penal laws are not to be compared with those produced by the interpretation of them. The first are temporary inconveniences which will oblige the Legislature to correct the letter of the law, the want of preciseness and uncertainty of which has occasioned these disorders, and this will put a stop to the fatal liberty of explaining the source of arbitrary and venal declamations." It is to be remembered that Beccaria speaks of the interpretation of written laws only the inconvenience likely to arise from the strained construction of unwritten laws did not enter into his contemplation.

:

Whilst the adoption of such a course has been of partial benefit to society, by the mending of some defects, it has been accompanied by some disadvantages, the ancient rules of law have been continually extended by the aid of construction; hence constructive treasons, constructive force, constructive possession, and numerous other such enlargements. Every strained extension of a pre-existing rule operates unjustly as an ex post facto law. Every such enlargement of a definite but too rigid rule is subject to the serious objection that, whilst it throws down a known and definite boundary, it substitutes no other in its stead; the arm of the law is lengthened, but no one knows to what extent. Last, but not least, an indirect system of legislation is introduced, which, although under the superintendance of the best of Judges and for the best of purposes, cannot possess the certainty and efficacy of a direct law, and thus it singularly happens that palliatives of this nature in one respect operate prejudicially,—they become a substitute for legislative measures which would otherwise be indispensable, and therefore interfere with the making of laws by that constitutional power which alone can invest them with state authority, and provide for their effectual promulgation.

We now advert to a very remarkable result from the imperfect state of the Criminal Law to which we have alluded,a result which, whilst it is demonstrative of such imperfection, is strikingly illustrative of the want of reliance on legislative aid for amendment, and of the preference for judicial palliatives we allude to the ordinary course now pursued in respect of doubts and difficulties which occur in the administration of criminal justice before the Judges at the assizes. The practice, it is well known, is to reserve all points of sufficient difficulty to warrant such a reference for the opinion of the fifteen Judges. A voluntary but most important and useful Court is thus in effect constituted, not warranted by any direct authority, which exercises absolute control over its own proceedings, deciding after hearing, or not hearing, as may seem most proper, arguments of counsel, and afterwards giving effect to its decisions by arresting the judgment where judgment has not been given, or applying for a pardon where it may be necessary. Such an