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• THE LAW MAGAZINE.
ART. I.-THE FIFTH REPORT OF THE CRIMINAL LAW
COMMISSIONERS. Fifth Report of Her Majesty's Commissioners on Criminal
Law, dated 22nd April, 1840. Presented to both Houses
of Parliament by command of Her Majesty. London, 1840. WHATEVER the cause,—whether from changes of persons, greater familiarity with the subject matter, the caution taught by criticism, or the mastery acquired from practice, it is an undoubted fact that each succeeding Report of the Criminal Law Commission has manifested a marked improvement upon its predecessor ; and so long as this is the case, we feel no disposition to twit them with inconsistency.
It is sufficiently obvious, indeed, that they started with a most undue estimate of the extent of their authority; the whole criminal law of England was to be recast, and their labours were to throw into the shade those of all preceding codifiers from Tribonian to Feuerbach. Finding themselves pulled up rather sharply, they turned restive or rather sulky, and described their authority as limited to the declaration of the existing law; which it most assuredly was not, as we took the liberty of informing them. Both extremes, therefore, having been tried without success, they had no alternative but to act on the juste milieu principle, and in the Report now before us they at length proceed on that construction of their authority which it required no inconsiderable portion of blindness or wrongheadedness to help adopting from the first; namely, that though the strict letter of the commission confined them to making digests, the obvious intent was that they should suggest such improvements as they might deem fit.
The plan of the Report is thus stated: “We Your Majesty's Commissioners, whose hands are here
VOL. XXIV, NO. XLIX..
‘unto set, do humbly submit to Your Majesty, in our present Report, the Consolidation of the Law of England respecting the following Offences :
der the branch which relates to the Administration
Barretry, Maintenance, and Champerty; III. Forgery;
Forgery i IV. Offences against the Public Peace, including Riots,
Unlawful Assemblies, Affrays, and forcible Entries; And we have prefixed to the several parts of the Digest such prefatory observations as have appeared to be necessary for the purpose of explaining the principles upon which the law is founded, and also the reasons for the course which we have adopted in its consolidation.
“Before we proceed to state our remarks and suggestions upon the subjects mentioned, we think it proper to submit to Your Majesty an outline of the plan we have pursued, with a view to attain the object of Your Majesty's Commission, the reducing the Criminal Law to a more compendious form, and rendering it more certain and accessible.
“ Having received Your Majesty's commands to report our proceedings from time to time, we have deemed it to be expedient, with a view to the effectual execution of our labours, to submit portions of our Digest in such a state as may afford the best means for enabling others to judge of the manner in which it has been executed, and more especially of the propriety of the alterations which we have suggested. We deem it, indeed, to be essentially requisite, in a matter of such great national importance as the Consolidation of the Criminal Law, that professional criticism should be freely invited by a full exposition of the principles by which we have been guided in discharging the duty assigned to us. With reference to this object, as well as the ultimate design of the Commission, the portion of our Digest submitted to Your Majesty in the present Report has been constructed. We have, with this view, frequently inserted not only articles corresponding with the present state of the Law, but also others more general and
compendious, by which, if adopted, the former will be superseded; and, with respect to these, the extent of the Digest will hereafter be considerably reduced by the rejection either of the former or the latter. We have omitted no existing provision of the Statute Law without expressly referring to it or setting it forth either in the Prefatory Remarks or Notes, and stating our reasons for the proposed rejection. Where any alteration has been made in the terms of an existing law, attention has been drawn to it, and our grounds for making it have been explained; and where any new enactment has been proposed, the like notice has been given, and the reason for its introduction has been stated. We trust that we have, by this course, afforded sufficient means, not only for forming a correct estimate of the suggestions which we have made, but also for determining what course may be the most convenient where we have not ventured to give any express opinion.”
A few general observations of a prefatory kind follow. It is observed that several of the articles now included in the Digest as aggravations of offences may probably be considered unnecessary when the classes of penalties shall be completed and each offence referred to its class; and that an enlarged discretion in the judge as to the extent of punishment will supersede the necessity for defining particular aggravations of the offence. Attention is also called to the circumstance, that the part of the Digest including offences against the administration of justice (maintenance, champerty, barretry &c.) involves the repeal of many ancient statutes, which the change of manners has rendered useless and obsolete; and that the statutes touching escapes, rescues &c. contain much repetition and may be advantageously reduced. They state that, in giving the more ancient enactments, they have adhered to the literal translation of the Norman French originals,—the text on which judicial decision is the commentary; and then comes a paragraph, which ought to have succeeded or been amalgamated with the preceding one, on the propriety of marking out the aggravations of offences:
“Whilst we suggest that some of the Articles now inserted in the Digest may become unnecessary, we think it proper to
| Reference to the existing Statutes is much facilitated by the Appendix to the Fourth Report on Criminal Law.
notice an important principle, to which we have already alluded, viz., the policy of marking the principal divisions of offences as they are terined by Beccaria,' a rule which is expedient, not only lest to crimes of the first degree be assigned punishments of the last,' but also for the purpose of specially admonishing offenders of the higher degrees of criminality attached by the law to offences accompanied with peculiar aggravations. So far as regards legal certainty and precision, it may be unimportant whether a more general law comprehends a wide range of crimes without marking aggravations, the adequate punishment of which is left to the discretion of the court, or whether severer penalties are attached to such aggravations by specific rules; but with a view to the prevention of aggravated offences, the expediency of giving more explicit notice of the higher degree of criminality, and of the severer penalties attached to those offences, is sufficiently obvious.”
So far as regards legal certainty and precision, it surely is not unimportant whether circumstances of aggravation are marked out by the law or abandoned to the discretion of the judge ; and if the law were rendered neither more certain nor more precise by such markings out, we should be glad to know how aggravated offences could be prevented by it. The completest uniformity of decision, extending over a long space of time, would be required to convey the same public impression as a specific article in a digest.
The following remarks are just : “We have frequently, as will be seen from the notes to the Digest, introduced Articles of a declaratory or explanatory nature which are not absolutely necessary; and in this respect we have preferred laying ourselves open to the charge of having done too much to that of having done too little. As one principal object of a consolidation of the criminal law is to render it more accessible to all, it is not, we conceive, sufficient to lay down particular rules in which certain principles are embodied, leaving other practical rules to be deduced by a process of reasoning. To enable the great mass of society to obey the law, detailed practical rules are absolutely essential.
1 Chap. 47. See Fourth Report of the Commissioners on Criminal Law, p. 3.