compiling and amendment of the laws of England. This proposal extends to the law generally, but more especially to the penal part

of it.

This work,' he says, shining so in itself needs no taper. For the safety and convenience thereof, it is good to consider, and to answer, those objections or scruples which may arise or be made against this work.'

The two chief objections stated by him, are :

1. That it is a thing needless, and that the law, as it now is, is in good estate comparable to any foreign law; and that it is not possible for the wit of man, in respect to the frailty thereof, to provide against the incertainties and evasions or omissions of the law.'

To which he immediately afterwards makes this reply:

For the comparison with foreign laws, it is in vain to speak of it; for men will never agree about it. Our lawyers will maintain for our municipal laws; civilians, scholars, travellers, will be of the other opi

nion.'

2d objection, That it is a great innovation; and innovations are dangerous beyond foresight."

To this he answers with that weight of thought and expression which so peculiarly belongs to him,

All purgings and medicines, either in the civil or natural body, are innovations: so as that argument is a common place against all noble reformations. But the truth is, that this work ought not to be termed or held for any innovation in the suspected sense. For those are the innovations which are quarrelled and spoken against, that concern the consciences, estates, and fortunes of particular persons; but this of general ordinance, pricketh not particulars, but passeth sine strepitu. Besides, it is on the favourable part; for it easeth, it presseth not: and lastly, it is rather matter of order and explanation, than of alteration. The opinion of Lord Coke in the Preface to his 4th Institute, is expressed in the following terms :

'As concerning the correcting of the common laws or ancient customs of England, may be applied all that hath been said concerning making of laws: only this add; that it hath been an old rule in policy and law, that correctio legum est evitanda. And yet concerning certain of our penal statutes, to repeal many that time hath antiquated as unprofitable, and remain but as snares to entangle the subjects withal; and to omit all those that be repealed, that none by them be deceived, as for example, concerning drapery or such like. To make one plain and perspicuous law, divided into articles, so as every subject may know what acts be in force, and what repealed, either by particular or general words, in part or in the whole, or what branches and parts abridged, what enlarged, what expounded; so as each man may clearly know what and how much of them is in force, and how to obey them, it were a necessary work, and worthy of singular commendation; which his Majesty, out of his great wisdom and care to the commonwealth,

hath

hath commanded to be done for as they now stand, it will require great pains in reading over all, great attention in observing, and greater judgment in discerning, upon consideration of the whole, what the law is in any one particular point; but with this caution, that there be certain statutes concerning the administration of justice, that are in effect so woven into the common law, and so well approved by experience, as it will be no small danger to alter or change them; and herein, according to his royal commandment, (God willing) somewhat in due time shall be performed.' He adds For bringing of the common laws

into a better method, I doubt much of the fruit of that labour.'

The last person to whom we alluded is Lord Hale, and for his judgment we refer our readers to his Discourse on the Improvement of the Laws of England,' published in Hargrave's Collection of Juridical Tracts, which, though remaining in an unfinished state, well deserves a greater share of notice than has yet been paid to it. Those who have hitherto considered that exalted person merely as a dry practical lawyer and pious man, will there see him evincing a freedom from passion and prejudice, and a clearness and comprehensiveness of understanding, in no respect inferior to that of Bacon himself. More judicious maxims than the following, which occur at page 256, are no where to be met with.

'Therefore it is of great importance upon any alteration of the laws to be sure, 1. That the change be demonstrable to be for the better, and such as cannot introduce any considerable inconvenience in the other end of the wallet. 2. That the change, though most clearly for the better, be not in foundations or principles, but in such things as consist with the general frame and basis of the government or law. 3. That the change be gradual and not too much at once, or at least more than exigence of things requires.'

He afterwards makes some observations at page 264, which, though not pointed to the present subject, yet bear so strongly upon it, and are so applicable to the present times, that we cannot forbear to quote them.

Exemplary miscarriages in the late times of such as have undertaken reformation, both in matters civil and ecclesiastical, hath brought a disrepute upon the undertaking of any reformation in either: so that the very name of reformation and a reformer begins to be a stile or name of contempt and obloquy; so that men are as fearful to be under the reputation of a reformer of the law, as they would be of the name of knave, or fool, or hypocrite. And upon these and the like accounts it fares with the law and the sages thereof, as to the point of reformation of the law, as it did with the present age and the virtuosi of Parnassus in Bocaline. They dare not meddle with it, but let it live as long and as well as it can in the state they find it. Only to save their credit upon such occasions, they meddle with some little inconsiderable things, as they set the price upon turnips and carrot seed, but nothing is dared to be done of use and importance.'-And at page 270,' All that which I contend for in the first and second chapter is, not to render

laws

laws of men like laws of nature, fixed and unalterable, but that it be done with great prudence, advice, care, and upon a full and clear prospect of the whole business.And immediately afterwards, I shall add but this one thing more, that it may justly be feared, that if something considerable for the reformation of things amiss in the law be not done by knowing or judicious persons, too much may some time or other be done by some, either out of envy at the professors, or mistaken apprehensions, or popular humours. The amendment of things amiss timely, by knowing able and judicious men that understand their business, may do very much good, and prevent very much evil that may otherwise ensue; and when the business is begun by such hands, it may possibly be too late to allay it.-And it will have this plausible pretence, that the judges and lawyers will do nothing to the laws, and therefore it shall be done by other hands. Such a humour would be more easily prevented by a wise and seasonable undertaking in this kind, which would not be so easily diverted or allayed, if once it should be flying. And thus much for this chapter.'

These quotations have not been here introduced with the idle view of gracing the discussion with illustrious names, or in order to bend expressions to a different purpose from that for which they were intended, but because we apprehend them to be deliberate opinions, given by men whose authority we are accustomed to revere, on the very measure now under consideration; and it is no slight satisfaction to us to have it in our power to adduce such vouchers, to prove that the undertaking we have ventured to suggest is neither new nor chimerical. From the accumulation of penal statutes which has since taken place, and the additional volumes over which they are spread, it cannot be less necessary now than it was 200 years ago. Should further and later evidence to the same effect be required, we have it in our power to offer it, and that too proceeding from a quarter to which we are sure universal deference will be paid. It was stated by Mr. Wilberforce, in the House of Commons on the 18th of May, 1808, (11 Hansard's Debates, p. 400,) that had Mr. Pitt's life been spared, it was his intention at an early period to propose a Digest of the whole Criminal Law. The annunciation of the intention is full and precise, and nothing but a deep conviction of its urgency and utility could have prompted Mr. Pitt to entertain it. But his course was closed at the very moment when he appears to have been pondering several master measures of internal policy, to the consideration of which he brought with him qualifications and facilities which none of his successors are likely soon to possess, and the accomplishment of which would have tended more perhaps than any of his former acts, to promote his own fame, the benefit of his country, and the stability of its constitution.

We shall now venture to suggest by what means a general revisal of the criminal law might be executed, and what advantages this would

would possess over that method of improvement which the Committee seem inclined to pursue.

The first step would be to extract carefully from the Statute Book the whole of the penal laws now in force, classing them under different heads, in chronological order, and in the exact words in which they now appear. We are perfectly aware that no plan of classification could be devised with which all parties would be satisfied, or against which solid objections might not be raised; but it does not occur to us, that this is a valid obstacle to all attempts at arrangement. Although it is scarcely possible that any division should be suggested which would at once be natural and complete, yet the surprising coincidence of the heads under which it appears, by the Appendix to the Report, that the officers of the courts of assize have made their returns without having had any communication with one another, proves we think to demonstration, that all the chief enactments of the criminal law, might be comprised under thirty or forty different heads. The labour of ascertaining the law, on any point to which one had occasion to refer, would thus materially be diminished, and much assistance towards its future amelioration would be derived from the juxta-position alone. Indeed we cannot conceive any extensive or safe alteration of the criminal law founded on any other basis, than that of some such collection of scattered enactments as we have now pointed out. What the next stage of proceeding should be, might create considerable difference of opinion. It occurs to us, that the most desirable would be, to consolidate all the enactments entered under each of the heads just mentioned into one, preserving the substance entire, and merely removing the repetitions, redundancies, and incongruities which would become visible. By these means the substance of the enactments of the present Criminal Law would be preserved entire, but greatly reduced in bulk, improved in form, and rendered more intelligible whether considered singly or collectively. The execution of this task would no doubt require much time, labour, and circumspection; but whether the legislature apportioned the execution of it among certain of its own members, or delegated it to others, there seems no cause for despairing that, in five or six years, it might be so far digested as to become a material improvement on the present system. When sufficiently matured, it might be passed as one act, and till then we see no inconvenience in permitting the law to remain in its present shape.

We feel no partiality for this plan of revisal, and should certainly not have suggested any, unless we had judged it requisite, for the removal of objections which an indefinite proposal would have been sure to occasion, to shew, that when we proposed a general revisal of our penal code, we had a distinct though perhaps erroneous notion both of the end in view, and of the means by which

it

it is attainable. Whatever is proposed, provided it is safe and effectual, will meet with our warmest approbation; and we cannot omit to mention that one of the chief advantages of reducing this branch of our municipal institutions to a compact and definite form would be, that those who proposed amendments upon it, as well as those who had to decide upon them, would more clearly Ferceive both what the law was, and what any proposed alteration would make it to be. It has been suggested that an ample Index to the present laws, would, with less hazard, answer all the ends of the Digest now proposed. We fear it would not. An Index may be inaccurate, or deficient; it never saves to lawyers the trouble of reference to the acts themselves, and to persons not in the profession of the law is of little use at all. The more indexes to the Criminal Laws, excerpts from them, epitomes of them, or any other helps to the knowledge of them, which are said to supersede a consolidation are multiplied, the more necessary will that consolidation appear. To go on without it, seems to be legislating in the dark, without knowing with any degree of precision what the effect of new legislation will be. This is the main and insurmountable objection we make to the proceedings of the Committee, and unless we are mistaken, a strong illustration of it is exhibited upon the face of the Report itself. The 5th act in the second class of offences which the Committee propose to repeal, is that of cutting down growing trees, to which we formerly adverted; and this, along with all others contained in the same class, the Committee say, they would make punishable either by transportation or imprisonment with hard labour.' Now, suppose they thought fit to punish it by imprisonment with hard labour by a new law, there would then exist this new punishment, while the old punishment of transportation, imposed by 6 Geo. III. c. 48, would remain unrepealed. This the Committee could never have intended, and the oversight would not have happened if a collection of all the penal statutes on the same subject had been before them when they began the work of reformation. But this is not all. An act for providing summary remedy for certain wilful and malicious injuries' was passed in the course of the very last session, applying to trees, wood, and underwood, and constitutes a third punishment, totally different from either of the two former. While the Committee are thus employed in amending the old law, and correcting the mistakes or oversights which they themselves and other members of the legislature may in the mean while have committed, new enactments will follow one another with fatiguing rapidity, before Criminal Jurisprudence has been reduced to any tolerable order. Than such a state of things nothing can be more mischievous. Neither judges, lawyers, prosecutors, prisoners, nor juries, can feel assured with regard to a law which is undergoing perpetual

revolu