The Sun.
London, England, 1844-05-14 00:00:00

After a few words from Earl DALHOUSIE,

Earl FITZ WILLIAM said, the point to which he
wished to direct the attention of the Government was
the recent survey which had been completed
of the United. Kingdom in the establishment of any
particular line of railway.
The matter then dropped.
CRIMINAL LAW.

Lord BROUGHAM said that, in rising to address
their Lordships on the subject of the, criminal
law of the land, for the discussion of which
their Lordships had been summoned, he could
not avoid feeling very great anxiety, and some
apprehension, when he contemplated the very
great importance of the subject, much more
than he felt the difficulties that might surround the
task which he had imposed upon himself. He had to
state, in extenuation of the offence of putting himself
forward to begin this discussion—first of all, that he did
so most reluctantly, for he had held himself away
from the subject, as the Noble and Learned Lord
OR the woolsack well knew, and he had often ex-
pressed his unfeigned disinclination to grapple with it
—that he had done all in his power to induce the
Noble and Learned Lord on the woolsack, with
his longer experience, with his greater capacity, and
his powerful influence, both with the Government
and their Lordships, and in the vroftssion to
which he and his Learned and Noble Friend belonged,
to take this important task upon himself, but he had
refused. But he (Lord Brougham) had no reason
to think that his Noble and Learned Friend would
be adverse to the proposition with which
he was about to conclude, and he had no reason to
apprehend that any opposition would be shown to it by
the Government. The measure which he was about
to explain had originated in the seven reports of the
Common Law Commissioners, afterwards the Crimi-
nal Law Commissioners. That Commission was
appointed to enter fully into the consideration of
the criminal law of the land, with a view to
its being digested into one general code. Hp would
ask how much longer were they to remain with the
criminal laws scattered over so many statutes—to re-
main diffused among so many books, and floating
as it were, only in Westminster Hall? How much
longer were they to suffer the criminal law to re-
main thus diffused, thus locked up—that criminal
law which they ordered, and commanded every
one of their subjects at his peril to disobey?
It was at his peril to be ignorant of them. It was at
his peril through ignorance to disobey them. He knew
that many persons entertained prejudices, in his opinion
utterly groundless, against all attempts at digesting
the law of England—at making that law a written
text, instead of locking it up in the traditions of the
common law. Lord Mansfield, when at the bar, had
said that it was always better that the common
law should remain unwritten, because, said Lord
Mansfield, while it remains unwritten law it works it-
self pure by rules drawn from the fountains of jus-
tice. He (Lord B.) approached these formulae with
veneration. lie wished to quaff of their streams, and
pluck some of those flowers which grew around their
margin—

Juvat integros accedero fontes,
Juvatque novos accedere floras.

Of the streams which flowed from those fountains he
wished them to quaff, and he asked them with him to
cull those new flowers. It did not follow that be-
cause the law was not wholly reduced to writing,
they were therefore not encumbered with writ-
ing or printing. There were thirty-two quarto
volumes of public statutes, besides three times as
many private Acts, containing 30,000 printed pages,
and this was independent of the common law. Now,
let them look at the common law, on which Lord
Mansfield laid so much stress. It consisted of
the decision of the judges, who had to make
up their minds in nine cases out of ten about
conflicting decisions, and to apply their own
sense of what they knew to be the law, although it
might not be reduced to writing or clothed with the
authority of judicial decision. What was the
number of volumes of these decisions relating
only to common law, and excluding the courts of
equity, which had accumulated since the year 1786,
the time when Lord Mansfield left the bench ?
There were 160 closely-printed volumes of common
law reports, beside ten volumes of Nisi Prius decisions,
proceeding from the three courts of common law in
Westminster Hall alone, without reckoning the Courts
of Equity or the Courts of Ireland ; and it was necessary
that the judges and the lawyers should be familiar
with this mass of printed matter, painful to mention,
and frightful to contemplate. He held in his
hand a volume of three hundred closely-printed
pages, containing more print than the whole
of the Code Napoleon, and what did their Lordships
think it was ? Peradventure, it was a digest of the
whole of the common law? No. Peradventure,
it was an index to the whole of the 160 volumes of
reports ? No such thing. It was an index to the
reports of the courts of Westminster-hall for one single
year, 1842. A digest of the reports for the last 90
years consisted of 8,000 closely printed pages, and all
those who had ceased to be students were bound, if
they could, to make their own, by purchase, all these
volumes, and, to try to read them if they dared.
The judges it behoved to read, to understand, and to
inwardly digest that mass, because they were out-
wardly called upon to give the results of that diges-
tion when they passed judgment. This process of
accumulation was now going on more vigorously than
ever; for every one of these common law reports.which
were pUblished half a century ago, ten were now
published, and at the present moment no less than
fifty-nine learned persons were employed in reducing
to writing the judgments which had been given,
and in adding to this enormous mass of matter.
This was a mass which it defied any property to
procure, any memory to retain, or any perspicuity
to understand. Was it then to be wondered at that
the most venerable of judges and ablest of men who
had written on jurisprudence, should have impressed
on the Government to reduce this mass to something
like order ; to enable those who administered the law to
do it with satisfaction to themselves and with justice to
the country. This was attempted in the Roman law
towards the end of the sixth century ; and even Julius
Cmsar and Justinian, two of the greatest men that ever
lived, had made similar attempts. He would now come
down to the history, of this country. As early as the time
of Edgar an attempt was made to pj:acn the law upon a
plain footing. Lord Bacon, in later times, said that
a digest oughts to be made to give law a new light, but
not a different_nature. But it might be said that Lord
Bacon shone more as a philosopher than a lawyer, and
that upon the litter sabjcet he was a 'visionary. But,
then, what did they .say to Lord Coke : he said
that to repeal many penal statutes and make one
plpin, perspicuous law, divided into articles, so that
every subject might know the law, and how to obey it,
would be necessarily a work of singular commendation.
Sir Matthew Hale, considering how great the mass of
law books had become, and they were then as the box on
their Lordships table compared with a house in the City
—but, leaving theseauthorities, and coming to the Legis-
lature itself, they would find in 1650 a Committee sat
with Whitelocke at its head; in 1656 another Committee
sat upon the same subject, formed by men of similar
eminence. And, in later times, in 1816, a resolution was
iscnhTo
omoluuBesi2det6o:f introduced Commons
by both Houses of Parliament, that the great
work of
be
digeosti:rogoytu ehsde
a law should be performed, and the
i passed
for tthat
a measure vote
r purpose.dthi
digesting
et
stueminentSirgßuand
edlractworyneseeori s.:

lidating the state of the law of property. He (Lord -
Brougham) had spoken of digesting not only the
statutary law, but the common law, and thought the
statement he had made of the diffused condition of the
statute law was sufficient to show that the common law
ought not to be excluded from the operation of his
motion. The dictum was that all men should obey this
law, yet it was embodied in no less than 150,000 closely
printed pages, which was elucidated by an index with
no less than 1,150 pages. He thought it was a
most painful thing to judges to have to
depend, in deciding upon those cases, upon
their own discretion ; what he wanted was to have
some fixed rule by which judges were to decide, be
cause he was confident that the crimes of murder, arson,
treason, and such like, were the same now as during the
days of Coke. A judge should be alone influenced by
what was the actual law as declared by the Legislature,
and not be induced to declare what law was. Let their
Lordships suppose a case wherein a judge had to
decide a question in relevance to which no statute law
had been enacted. What was his position ? Why, he
had to consult the reports of all the decisions which
bore the slightest analogy to that particular case, and
there he was left to grope in the dark through all those
cases, in order that he might find something like
that which was under his consideration. The
consequence of all this was inextricable dis-
putes and difficulties. During fifteen years
of his life, he had had opportunities of being impressed
with the cogency of those arguments; and, in making
this assertion ho was fully borne out by M. Dupin, the
celebrated French writer upon criminal jurisprudence.
(The Noble and Learned Lord then road a quotation
from M. Dupin's pamphlet, in which he stated that the
greatest benefit had resulted from the formation of a cri-
minal code in France.) This gentleman, it must be re-
membered was originally far from being enamoured of
codes, but was a sceptic on the subject. Experience,
however had taught him better. To show the necessity
of a criminal code, he would inform their Lordships that
the Criminal Law Commissioners had collected no less
than thirteen definitions of the crime of theft. There
were 1,540 statutes in force, 658 repealed, or supposed to
be repealed. There were 142 repealed, or repealed by '
implication ; 234 of what was called obsolete statutes,
and 780 expired, being 3,354 Acts of Parliament
altogether. Now, of those repealed, or supposed to be
repealed statutes, 142 were doubtful. No man could
tell whether these 142 were or were not repealed.
There was, for instance, the 3d and 4th Edward VI.,
chap. 10, which made it a very grave offence for a per-
son to have in his possession images taken from a church,
with the merciful provision; 4S except Noble Lords, who
are reputed saints"—(Laughter)—so that if he (Lord
Brougham were to buy an image which came out of a
church, under this statute, which was not repealed, he
might be punished. Then there was an Act in ex-
istence which provided punishment for " fond and phan-
tastic attempts to stir up faction." This Act might be
brought with force against many of their Lordships.—
(Laughter.) There were Acts, 26th Henry VIII., and
sth and 6th Edward VI., by which it was made treason
to call the Sovereign an infidel, so that 140 years ago,
under this Act, it would have been treason to speak the
truth, and have said of William 111., that he was a
schismatist. The Noble and Learned Lord then enume-
rated several other obselete statutes, respecting which,
much doubt existed as to whether they had been re-
pealed or not. One was to prevent corn being exported
when the price was above 6s. Bd. the quarter ; another
to prevent the importation of foreign cards for wool-
carding, and a third was for the purpose of imposing a
shilling fine on all persons neglecting to attend their parish
church on a Sunday. This statute was supposed to be
obsolete until a short time ago, when it was brought
into life in Lancashire. Three men were brought
before the magistrates for poaching on a Sunday, but
the case was not made out against them. Before how-
ever they were discharged, one of the justices inquired of
the prisoners if they had been to church the previous
Sunday, and finding that they had not, he sentenced
them to a fine of eleven shillings each, and costs, and
these men suffered an imprisonment of eleven weeks in
consequence. He (Lord Brougham) in his letter to Sir
James Graham last year, mentioned this circumstance,
and a Right Hon. Friend of his, shortly after the publi-
cation of the letter, wrote to him (Lord Brougham) to
say, that the printer had made one of the greatest
blunders that printer ever made, for he had printed
" poaching," for " preaching."—(Laughter.) But what
was Mr. Cooper's, his (Lord Brougham's) friend's sur-
prise, when he was informed that the printer was right.
Mr. Cooper believed, when lie read the letter, that the
men had been fined for preaching in some conventicle.
There was another absurdity in our statute book, and
that was the manner in which the various Acts were
described. In the 31st of George the Second, ch. 33,
the following things were all found together :
an Act for preventing trading by bankrupts ; for pre-
venting abuse as to the admeasurement of coals in the
City of London and Liberty of Westminster ; and for
preventing the stealing or destroying madder roots.
Another Act in the same reign, the 29th George 11.,
was for regulating places of entertainment, for regu-
lating the burning of gorse, for regulating disorderly
houses, and clerks to attorneys and solicitors.—
(Laughter.) They then came to the 22d George 11.,
for preventing excavations along the shores of the River
Thames, for amending the laws regulating attorneys, for
regulating the assize of bread, for making roads in the
Counties Palatine of Lancaster and Chester, and to prevent
the spread of infection amongst horned cattle. In the reign
of Edward VI. it was laid down by the oracles of the
law that an Act was not to be taken as dated from the
day it was passed, but as dated from the first day of the
session in which it was passed. An Act was passed by
which it was made penal to import foreign goods of a
certain description after the date of the Act. A man
imported a quantity of these goods before date of the
Act, but he was, however, prosecuted under it, and
punished, although he imported his goods in
February, and the Act was not passed until May.
The case was moved upon a writ of error,
to their Lordships' House, and the twelve Judges iu
England were consulted, and they gave it as their
opinion that the judgment of the Court in Ireland ought
to be confirmed, and it was ;confirmed accordingly.—
(Laughter.) This was a part of that which was termed
the perfection of human reason. In the 13th year of
the reign of Elizabeth, of blessed memory, an Act was
passed, declaring that any person should be liable to ire-
prisonment who dared to take more than ten per cent. as
interest of money. The clause ran in these words :
" That forasmuch as all usury, being forbidden by the
laws of God, is detestable, therefore be it enacted that
all usury, that is loans of money with above ten per
cent. interest, shall be punished in manner following—
that is to say whoever receives a sum beyond that for
interest shall pay it back upon action being brought."
That law was in existence at this very hour.
The judges in all cases in which it was attempted to
carry these obsolete laws into effect were obliged to be
mere instruments ; they were obliged to help the man
who attempted to ensnare others in the meshes-of the
law, to help him who in the heat of revenge had
warmed the torpid viper into life and mischief. Whether
a defendant made a foul defence, or the plaintiff brought
a foul charge, the judges were obliged to aid them. The
Bill which fie asked their Lordships to read a second
time digested the criminal statute law, and unfolded the
principles upon which that digest of the criminal-law was
made. All the statutes, all the judicial decisions, all the
definitions of the test books, had been carefully weighed
and considered, and, from the light derived from these
different sources, the enactments of this Bill, which he
prayed them to pass into a law, had been framed. If
they accomplished that great work, they would reduce
into one digested body, luminous in its diction, clear and
logical in its arrangement, symmetrical in its form,
easily read, easily understood, easily remembered by the
the counsel who were
to subjectsadminister, i whor,
andha v e
by
to
theb ey, by
judges who were to decide, the
so
whole criminal law of the country. They would, by so
doing, confer on their country an inestimable blessing,
and on themselves lasting renown, realising the wish of
Edgar, the *Saxon King, that the laws of Britain should
be bound up in small compass, like unto a faggot, that
thereby they might be the better kept together—realising
the boast of Bacon to his Sovereign, that he would do
honour to his reign by a work useful to his country—
fully carrying out the sentiments of the highest legal
authority of these realms, the great Lord Coke, that a
code of laws, digested, and methodized, and reduced to
separate articles, as these were, was a work well worthy
the age, and one which would confer lasting benefit
on mankind—realising the wish of the first Stuart who
had reigned in this country, who was the enemy to
every innovation, and the friend to every established
prohibition, who had said that such a work were
worthy of the summoning of a Parliament to sit if it
were only for that ; realising the wish of Sir Mathew
Hale, the most venerable of legal authorities, who com-
plained in his turn of the unnecessary accumulation of
law books, small as their numbers were in his day, but
who had not lived to see the process of accumulation
carried on as it had been in our times, but who had said,
alluding to the comparatively small mass of law hooks
existing in his own days, that it would be a work worthy
of the Prince and of the country, to make one clear me-
thodical digest of the whole • doing a work which had
occupied the attention of all Classes of statesmen, from
Fursell, and Atkins, and Whitelocke, down to Barebones
and Harrison, as a living k)nd of intellect, from the
highest to the lowest, had felt the necessity of accom-
plishing this great work; doing a work, which both
Houses of Parliament, in 1816, in an unanimous
resolution, recommended should be done without
delay ; and which the great criminal law reformer,
the Prime Minister of the present day, had alone been
partly able to accomplish, and who had said that high
official station, and large official influence, was chiefly to
be prized because it enabled those who possessed them to
do such acts as these.—(Bear, hear.) The subject was
so important that he would not apologise for having de-
tained them, but would beg of them to give the Bill a
second reading, in order that it might be referred to a
Select Committee up stairs.
The LORD CHANCELLOR would not then follow
his Learned Friend through his able, eloquent, and com-
prehensive speech; he thought the Bill ought to be read
a second time. The Commissioners had been required
to direct their attention-Ist, to a digest of the statute
law; 2d, to a consolidation of the common law, as it re-
garded the criminal jurisprudence of the kingdom ;
and 3d, to consider the expediency of combining
the whole into one statute. They had considered it ex-
pedient so to do, and that was the foundation of the
present Bill. There could be no doubt as to the ex-
pediency of that part of the Bill which digested the
criminal statute law, and repealed those contradictory
and abselete enactments which were a disgrace to the
statute book; but with regard to a consolidation of the
principles and rules of common law, he had thought it
his duty to make inquiries of persons employed in the
administration of justice upon that point, and the ques-
tion was one of so much doubt and difficulty that he
should advise their Lordships to pause before adopting
those suggestions. The principles by which the common
law was at present administered were derived from the
text hooks, and were applied by the judges to the circum-
stances of various cases as they came before them.

Now, it required much consideration before he t
could consent to subvert such a system, and '
substitute in its place fixed and invariable
rules. He must be satisfied that those rules were so
comprehensive as to embrace the whole of the principles
of the system which it was intended to subvert. lie be-
lieved his Noble and Learned Friend would not admit the
policy of abolishing the system, unless he were satisfied
upon that point. He did not think that much benefit
would be derived from sending the Bill to a Select Com-
mittee up stairs. He would advise his Noble Friend to
have the Bill read a second time—to let it stand over—
and early next session to have it re-produced. In the
meantime, the Government would devote its attention to
the subject, and persons would be employed, he hoped
with the concurrence and co-operation of his Noble
Friend—(" Hear, hear," from Lord Brougham)—to go
through all the details, so that the country should have
a sufficient guarantee that the rules would
be comprehensive enough to embrace every case
which it was intended they should meet. An-
other reason why ho wished for delay was,
that the Commissioners were at this moment employed
in examining a very important branch of this subject,
he meant that which related to trial and procedure. In
a short time they would have completed their labours,
and the result would be that in the same measure they
might be able to consolidate forms of proceeding—a
most important branch of the subject. lie certainly
thought the Bill was well entitled to be read a second
time, for it was highly desirable that they should have a
digest of the statute criminal law.
Lord DENMAN expressed his concurrence in what
had fallen from his Noble and Learned Friend. There
was one object, however, of his Noble and Learned
Friend's Bill which he thought ought to be accomplished
without delay—he meant the repeal of those obsolete and
barbarous laws, the continuance of which was a disgrace
to the criminal code, and he trusted that what had fallen
from his Noble and Learned -Friend on the Woolsack
would not prevent any Noble Lord, nor any Member of the
other House of Parliament from introducing measures for
the repeal of those laws. A case had been alluded to in
which a magistrate had been called upon to execute a
law which ought at once to be repealed. A Noble Lord
had also brought forward the case of the laws relating to
forestalling and regrating—that was an important exam-
ple of evil legislation. Mr. Burke, in 1773, had brought
in a Bill which was supposed to have swept away all
those absurdities ; still it appeared there was common
law enough left to punish any one carrying on trade in
the way trade was usually carried on, as though he
were guilty of a misdemeanour. The Noble Lord's Bill
would also do away with those enactments which subjected
those persons most unjustly to punishment who departed
from the established religion of the country—laws
which the great majority of mankind did not know were
in existence, and of which those who were the most ig-
norant were the most likely is suffer by their execu-
tion. He was pleased to find that the attention
of the Legislature had been directed to the consolidation
and simplification of the criminal code. He was a little
afraid, however, that their Lordships might be misled
into the idea that they were now applying a most effec-
tual remedy to a very great evil. His Noble and Learned
Friend had alluded to the great accumulation of law
reports. Parliament itself had been accessory in some
degree to that accumulation. It had passed a vast
number of new laws of late years, in a great proportion
of which the construction was by no means easy, and
the interpretation anything but clear, and certainly of
late years the judgments of the Courts had been reported
much more fully and much more accurately than they
had been formerly. But the decisions on questions re-
lating to criminal law formed the smallest portion of
this accumulation. However, he considered that the
passing of this Bill would be a great public good,
and would remedy a pressing evil, by sweeping
away from the Statute-book those dreadful, scandalous,
and oppressive enactments, which would disgrace the
law of the present day. Ile considered it his duty to
state that, in his opinion, their Lordships and the coun-
try owed a debt to the Commissioners who had devoted
so much time and so much labour to the improvement of
the law of their country, and he considered that the pub-
lication of the law in this manner, digested under dif-
ferent heads, would be of the greatest use, not only to
those who were called upon to administer the law, but
to all who had to obey it. He could not conclude with-
out expressing a deep sense of gratitude towards the
Commissioners who had been engaged in this investi-
gation.
Lord CAMPBELL thought it was a disgrace to this
country that they could not refer, through the medium
of chapters and sections, to the particular crimes and
punishments attached to them. This was a matter of
great importance, not alone with respect to the statute
law, but also as regarded the common law. But still he
thought his Noble and Learned Friend near him (Lord
Brougham) bad overstated the existing evils ; for the
defect was, that they were continually multiplying the
laws until at length they became involved in obscurity.
In France every province had had separate and distinct
laws, but that was done away with, much to the benefit
of the country, by the Code Napoleon. As an illustras
tion of his point, he would ask his Noble and Learned
Friend, what could be more essential than to have a legal
definition of the word conspiracy? He agreed with his
Noble and Learned Friend who had just sat down as to
the merits of the Commissioners. lie certainly did think
that this was a measure which should be brought in
upon the responsibility of the Government alone.
After a fow words from Lord BROUGHAM in ex-
planation,
The LORD CHANCELLOR saidhe thought it would
be as well if the matter rested with the Commissioners,
who had the best opportunities of becoming conversant
with the bearings of the case. No persons could possibly
have discharged a difficult and arduous duty more effec-
tually than they did.
The Bill was then read a second time, and their
Lordships adjournei.