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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 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 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 perceive 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, cau feel assured with regard to a law which is undergoing perpetual
revolution. There can be no doubt that alteration of the law should be avoided as long as it can; but, when it has once become indispensable, the care and consideration which an important change ensures, make it less to be apprehended than a succession of minor innovations which escape without observation.
We have now concluded the remarks we had to offer on each of the four sections into which the Report of the Committee is divided; on the question whether the punishment of death ought to be superseded either by transportation or imprisonment; and on the course which in our apprehension it would be most eligible to adopt for the improvement of Criminal Law. Any inaccuracy in figures or statement, into which, if we have fallen, it has been inadvertently, we intreat our readers to forgive; and for the length to which our observations have run, we have no other apology than this to offer, that the subject to which they relate is one which cannot be conveniently broken into parts, and when viewed altogether, involves a variety of topics, the difficulty of which will probably continue, as it has hitherto done, to divide the minds of men, which render it almost impossible to dispatch it briefly. We should regret if we have stated too widely, or pressed too far, any principle in favour of the existing law. We are not conscious of entertaining any partiality for it, further than the reasonableness of it can be evinced by fact and sound argument, and shall hail with as deep and unaffected satisfaction as any of those from whom we differ, any diminution which can be proved to be practicable in the rigour of its letter or administration; but it has been our main object to shew that it would be worse to unsettle the foundations on which our penal code now rests, until the solidity of those which have been pointed at by the Committee has been ascertained by a more severe and extensive examination than any to which they have hitherto been subjected. Whether we have succeeded or not, it is for them to determine; but we hope we have at least conducted our inquiries with that fairness which becomes all who respect their opponents or themselves, and have advanced no sentiment or doctrine, in course of the discussion, which under any circumstances we should be ashamed to avow.
Ad respublicas firmandas, et ad stabiliendas vires, sanandos populos, omnis nostra pergit oratio. Quocirca vereor committere, ut non bene provisa et diligenter explorata principia ponantur; nec tamen ut omnibus probentur (nam id fieri non potest) sed ut iis, qui omnia recta atque honesta per se expetenda duxerunt, et aut nihil omnino in bonis numerandum, nisi quod per seipsum laudabile esset, aut certe nullum habendum magnum bonum, nisi quod vere laudari sua sponte posset. Cicero de Legibus, cap. 13.
No. XLVI. page 407, line 11 from bottom, for ' possesses' the contest, read, ‘pushes' the contest.
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