Criminal Law.
The Times, 1824-09-09T00:00:00

unze nceCtee0r uomittee appointed to conisider the expeaien6y of edits solittating and amending the Criminal Lair of Pinglarid, and to report the Same, with their obsiervations thereupon, to the Housec and who were empowered to report their opinion andc proccediln.s fromntine to time to the Hou,se;have mtAdex pogressinotlicrmat-. ter to thern referred, and have agreed to the following Report : Your cotmmfittee having called beore them Anthonv Hamimondl, Esq., of the Inner-Temple, heasubmitted to thera thepapers mark. ed Nos. 1, 2, 3, and 4, which formn the appendix to this report; and having maturely considered the tzame, your commaittee camie to tne f'ollowing resoluitions: 1. Resolv-ed, That it is the opinions of thir cominitige, that it is expedient that the statutes relating to the criminal latw sihould be consolidlated ui'der their severat heade. 2. Resolved, That the chairman be directed to mnove for leave to, bring in bis, pursuant to the! above resolutihn, consolidating the criminal law, without any amiendment or alteration. 3. Reslved, That it is expedient that certain omissionii andl ano. malies in the present state of the crimninal law be brought tinder the consideration of the House, with a view to remiedy the came by he- gisl~ative prvsions. 4.Resolve, That the chairman be directed to rmove for leave to bring in bills, supplying such emnissons, and remedying the exist.. log anomalies; suchi amending bills to be wholly, distinct from the consolidating bills. April 2, A 1824.STT3ET The measure which I have the honouir to submiit to thi- comtmit. tee was projected by me several vears ago, since whilch period I have been occupiedl iii bringing itL to' that complete state itt whtich it has now arrived. The measure contemplated has two distinct obJects :-lst, The amendmient of the criminal law%,; _2d, The consolidutioni of the cri- minal law. And SD entirely distinct in its natur-e is each proposi. tion from the other, that the propriety a-nd practicabilitv of each mnust be considered isolated and by itself; nor can' the reection of thie one involve the condemnation of the octher. And first, as to amending the criminal law. 1. Every nerson performing an aclion, nrot only attains some end or puuose; h le em-ploys certain m-eants fbr attainiing it. Now the law, ihi definizig what actions s1hall be criminal, taskes a de- scription of the means employed a part of thep definition; so, that an action attaining the same end writh one denounced, but employ ing tlill'crent mieans, thoughi equatllv reprehensible, yet, from ntot squat. ing with the temis of the definition', is not puxnisha-ble. To illust-ate this doctrine by a sinigle instance :-Trhe end which t'he successful forgery ofa wiall attains, is to divert property from that channel in which) either the deceased proprietor intended it Should, go, or the law itself would have directed it. Tfhe end which the de- struction of' a will attains,, is to Sdiveri property from that chunnel in whiclh either the deceased liroprietor intendied it should go, or the law itself would hiave directedt 1,. The cods, therefore of the twio Sc- nion, are the same ; yet, from the cause alreadyv noticed, thbe lattrt is ne3t punishable.I To supply this defieiency, by bringing them o-mitted cases within tile letter, as they atre with.in the -principle, of the exisrtig law, lis one branch of the proposition for amending the crtiminal law. 2. Aga:%n To'P the perfection of a crimiinal law the rule imust he so framed as to enmbrace the whole of thiose cames to which its prin- ciple applies. To the perfectionj, therefolre, of a criminal latw, the power of foreseeing every combination of circumstance that ilhould be the Subject of its operation is essential--a faculty withheld from humnan nature. Penal laws, therefore, in their definitions of crimre, are, at the first, necessarily lInperfect. By watching, however, the course of events, and enlarging the definitions pursuanlt to its die,. tales, these imperfections rnight from time to time bes gradually cor- rected. lint the little ajecntion which criminal jturisprtsderice enga,ees, cormpared with civ-il. occasions the definitions to rem'ain for the muost part, in their originatl state. There is no indivll;l whio, in some way or other, is not af'ecre-d by thie regutlations. of the civil code, and thius V~ continual interest is kept alive for its Improve. mini bu te rovisions of' the criminal code art fadr mant natuse til called Into action; and the Kteat.er plirt of manikind. pass thrTough life without being exerted to call for their interposition: and even where public spirit, the self views of a corporate body-, or any other arceidenral cause, h.as inducedi a legista"ive amelioratian of the primitlNe rle, the same causes whilch occasioned the deficiency at the first have made the amend. ment but a step towardst perfection. o 3. Again : Or the namerous; ofl'ences classed by the Romanl law as public crimnes, a large propoirtion were treated at the first as civil in- jutrie only ; end wh~en the alteration was madle, froml inattentinn tOL the difl'ere'nce between a civl andg a criminal proceeding, rule-s hfimhe-.. to applied to the civil proceedling were improperly extended to, the criminlal. By a civil, proceeding against the author of enl ini,ar1pn action. a partictuOar pers4on seeks to redress his individual griev- ante;, and it is reasonable to reject his suit, where o&rtiarvs dci- cumsnpection wouild have made hini secure. Buit to defe4t a cri minalI prosecution for the self-samne act, beciause tne immriediate sufferrer mlight, with due c-aution, have escaped, isi errotimus, since the ob- ject is, "ot to avenge his wrongs, lint to remove an evil f'elt by the whole community., Into this error, however, the Roman lawv~ has fallen, and the Enlglish criminal law, of wbiith the other is the basis, hasi followed the exatR.ple. S Tho correct this palpable error, resultinig as it does from resemblitng af criminal to a civil prosecution, and viewing hass a mode of redress. ing, or rathier avengung, theinWivilual, suifferer, is another branch of of thieproposimion i~r amen)ding the criminal law, 4. The deficiencies hitherto observed are discover-able on viewing a Penal lair isnlated and by itself. Others are made appartnt on a compari-on of two or more penal laws together. For if tt'w subjects of the tw'o are in the strictest analogy, ang the companr isnshowsr thaLt a difference has been mriade in. their sanctions or otrherwi,se, unless anonie reason can be given for this distinction, it is *necessau-ilyv a de- fect. For examiple: the mean-, used for the privation of p;roperty are physical and moral-physical, where it is, token by the band; mnoral, where it is ziven tip iy the owner hinisleF, from the nLduence- of causes operating on hlis mind, Now twro or mtore laws;, punisb- ing each species of privation, are in the atrrictest analogy, s.ince their enids are toe same. If, therefore, oin ecisiparing themn together, it appea.rs that a difference liar beean made in the sanctionsg or otherwitie of the two crimes, unlest 'somne reasonl can he given for thUi differenceg, a defect is made apparent. . o 3. If any,amnendmnents beyondI thes are proposed, they wil be of deficiencies acknowledged on all hands to be Luch ; literol mnistakes,. namely, and doctrines whichb the couirts have condemtned. Andtithust much for the amendment of the crinuinal law. Nexc.t as to the conisolidationi of the criminal statute law. In discussing the nature of this amendment, I shal'L examine live several questiotis :-l at. NWhlat are the advantages Of, aconstilwlSaion ? 2.1. Whlat the disadvantges ? 3d. Whether anyv plan for censolidat- ing the Statute lawha eve yet been proposed? ,4th. If not, then whethier any can he deie? ,th. In what mode the sufficiency of the consolidation bills is to be ascertained ? I. The advantag,es of' a consolidation are, first, that it bringsB under one point of view that which now lies Scattered over the face of many volumzes. Secondly, it ascertains the reciprocal influence which a variety of 5tatutes, eacli applicable to the same subject, have upon each otl~er.-a knowledge whiich, undter the present -tate of thiings, it is matter of the g-reatest difficulty, nay, otten of impossi.. biliiv, for the most comnprehensive mind to attain. Thirdly, it de,- tects -'aid reconciles those contradictions anid inconsistenciesk so con- stantlyQob-ervable where a number ofstatuites haive beer, applied frcnt time to tinse to the saunia subiect. Fourttily, by reducing the law to a legreater certainty, it dimirnishes litigationi; and by exhibiting a cla ,ditinct, and connected, view ot' that law, it enables us tp ob- Serve, and Gbserving to supply, those particulars in which it is de- fective. - 2. It may he objected to a consolidation-.firat, that judicial deci. sinus have, in miany cases, seettied the iinpoit of' the pxrticul-., phrasesi and prihvisions of Statutes, and thatt a consolidation will di- mmmini the facilities of reference to thes decisions. But to this oh. jection the answers are two. First, admitting the fact, the incoi.. venienee is trivial compared with the advantage of the measure. Z.1ireover, ithe iaconvenience, consisting as it does in thie additional trouble wihich it wvill impose upon prmctising lawyers, is neatraudid by the remioval of that m-nrchi greater trou'ble to whichl they atre now subjected, of obtaining a distinct view of the law, ascertaining the bearing of onle smtute upon ainother, and dctectin~ their contrradlca iions. Buit, secondly, the objection rests upon a tact which does nom exist, in that nor a Single reference will be displaced. Notest will be suibjoined to each bill, nanting the particular provision which formsr eachi constituient portion of the hill, together with those judicia de. ciaiorit which have aettled the particular impDort of the proviion. The second objection is this--A clause takeni in relaiinn to other braniches of the act, shall1 occasionally bear a diFferent ctnstruction to what it bears in the abstract that in consolidating 'the law, yon mnust either take the claute in its isolated farm,. and thereby ehange its meaning, or you must rake it with all its collateral besa-rings, and thereby raise th,one various anid intricate questions, for the SOIn. tion of which vwe have no oracle to apPly to. T'o which ob- jection the answer is this--The objection altogeths-r proceeds ott [the supposition that the framer of the originial act intended that it shoiuld bear the celative and niot the isolated sense, since if huch was not his initenition, the relative sense is tle eftict, of accident, not of I design, ar,d a consolidlauon, therefore, instead ot detracting fromn, will emphatically, uphold the real char-acter of the law. X6w the very, samie principles which govern, in every other bsanch of compas sition, nmust influence in tframing an act of Parliament. It is not conceivable that any legislator in possession of hit reasor, ever meant to express himself in the outset by htalves, leav-ing it to a ftu.. tCure clause to perf'ect the expression of lisis desigtn. He meant that. each paragraph should f'ully define its subjeCt. And by atEtending, therefore, to the meaning of each, isolated and by itself, Shall we uphold what alone was the legislator's real maeaning. T'he way irt whichi that meanting comes to be changed, contrary to his intentions.. arises fm-tut his employing termns in a subsequent paragraph, which necessarily influience, hut which wrere not intended to influence, the former. i7hase cannot be rejected bY a judge, because he bps lso power to reject anlY part of a statute; but the legislator is uDder no such ohigation. At all event-, however, some relimnce muot be- placed upon intelligence, and it must be presumed that i-lie mantner in wluichlon~e clause miay be influenced by anothier, wtill runt escape an anxious perusal of tbe'act. Add to which, that it i-s verv isuproba.. file, thiat where the question will invariably be aslkecd, "Is; the~ clause in its resent formn adequate to its; design t hat --n defistient- cica whlich this agddeatal iniluetteemay have Suppirti wil .11b_ overlooked. In the c6riinal law, too, this influence isi companraively little. And one general answer to aU theoretical objections is supplied by the practice of each session, In passing consolidation bills, 3. The next consideration is, whether any plan fbir cons&lidating the statute law has ever yet been proposed; since, if none has ever been deoised, theii as the moot simple operationa appear insuremunt- able to those to whom the mneans of awcoinlishii.i there ae. un- kinown, it is evident t'hat, the quesiat of consolidatjng thle stAtutes is now for tite first time to be fairly dealt with. ITo acerramn this tact it will be proper to consider what is m-ant bY the phrase, " A plan for consolidating the statute law." ,Let us suppose that distinct pieces ofmetal are beddedin the same comman strata, and that our objeat is eoDconsoldate or unite in oi4e mass a given ntumber of tlesegpleees. That we apply to an artist to dovi%e the means of doing this, and that he tells us that the sty is to bring the pieces into xra.poiion. t is obvious that be has given us an mpertinent answer, and that vwe may still eq%uire, 1st, By what process can they be brought into juxta.position ; 2d5 Whcn brought into juxtapqaosiion, then by Swhat process critnhv be unuitedi in thle isue mass. Whvn he has satisfied us upon theas pagnts, he has then, ard not till the, gien lls a plan for eo,. ating the metals, As with ihe leesla in the case supposed, i Ist vith t'hoe t 'isiora in the statute-book which offer themselves for consolidation. va. rious provisions are united in a fornm of wordt, atid tettered with a eessorv nitter c mmon to all. Each of these pvhvisiens r is to be consolidated wvith tie lovision of Come Othui3 -stattte irl tbe same incumbereci condition with itself; and not onlywitsh fth- pvalo, of that other statute, but with those ofothers and other sto awti.. The fewv cases ins which the destruetiou -f's 1W bi b' -70- the suileet of ata ladiettuent, axs? all 'a cases r coxti ,O4t 'nPu etent. ITo say, then, that a person who tells us thatt the !I-aod! Of conwolidating the statute law is to bring similar provisiont Mt3 Juxta-nosition has given uss a plan for consolidating that law, it 2ii abii,e of terms ; and yet all tlat baa been written upon the subject MMOnflts to tf&s alone. 4. T3he merit, then, of first maturing; a plan for consolid1atilig tht 'Statute law i due to him alone who shall explain to us, 1. How these provLjions are to be brought into jna:ta-position. 2. How, when 'brought into jUXta_positifnn they are to be united together-a rnerit which at every hazard may be maintained to be of no ordinary eharatese Few persons have thlought more upon any one subject shan Ehave done upon this, and it hna only been after endless ex- pnrnsents that the plan which r nows submit has been matured. 'hisian. with its illustration, will be found in No. 4, of the papers aubiw,jofunLed, entit,led The Consolidation and Amendnmeftt of the ? -s to the ntotde in wbich the Aifficiency of the consolidation bills is to be ascertained, it isp-rpatsed that ttvo barristersof eminence be namedl, wvho shall examine the bills, and `report the resuilt. As a preliminary to the proposition fi amening and consolidat ing the criminal law, a code or dipest of that law has been framed upon tne prncipleq that will hereahter bc stated, and which have been llustrated in No. 2, of the Papers annexed. The present state of the law in all its bearings wtsd relations must be known, in order to discover what its deficieDcIes are. A view, therefore, of its present st2re mnust be exhibited; and thus the code or digest is the basis of the legiqlative prlOe'eding It is rvaposed. that this code be printed uniformly witb the folio edition of the statutes. It W I shall now conclude with some observ.tions with respect, first, to amending the text of the statutes, secoRdlv, to the papers annexed'; IastlYv tn the state of the code, consolidation, and amendment of the wh'olt criminal law. dl auch 'nas been said against the verbiage of our %aaute law- .and cownparsons, to its disadvantaee, have been drawn between it- waeIf and the written laws of other kingdems. This censuse, how. .ever, seems, for the most part, to be very unmerited, in that aPuch of the verbiage of our statute law resuirs from the genius of our Government. To explain at length. There are two modes of legislating: 1. Employing general terms: 2. Avoiding general Serrns, and confining ourselves to the en umt eration of iarticulars- The first gives the utmost latitude of discretion to tt.e magis- 2rates; the otler leaves them little or no discretionarvy power. And aS the first principle of a free Government Is to leave nothing to the dliscretion of the magiistrates, and as the only mode of doing tLds is by dealing in particular tenrns, this feature is character- i'1tical of English jiteisprudence, as the other charactcrizes that of all ftreign natiot. There are, ingdeed, some branches of the law (vulgar crimes, for lsitance, thlat have no relation whatever to virtue) in wlhich the atm'Oat latlftude of discretion might, with great safety, he given to the niagistrates, were it not for the consideration that to in- troduce the generalizing principle into one branch of lezislation, ight prepare the way for iti general adloption. In Scotland this discretion is given - nr, with reference to the United Kingtiom, is there anv reason whv it shoul(d e withdrawn, since, constitut- ed as our 'Parliament is, their practice cannot extend its inifluence. Any person, therefore, wvlio after condensing the statutes into one or two voluoses, by strilinzg out what he mav deemn their verhiage, j atiall appeal to his wvnrk as a proof within w;hat narrov limitzi the atatute-book might be comprised, very mucll mista1ces tbe real Yrrir- aCiple( upon wliich alone any curtCailment ot the book can, with cotn- mnon Rafety, he attempted. That principle is, to preserve the ver- biage of the statutes; hit, by uniting two or more together, to make one serve the purpose of manv. If', indeed, a variation was to be mnade iW the common form of an art of Parliament, mnuch mighit 'or gained in the way of conciseness. Wten we run over the statatta of a fewv sessions, we observe, undler ,rn3rate chapters, a varietyof the same conimon enactments; those, for examole, which relatc to procedilre. Now, if two preliminarv acts were to be pa.ssed-_one apnlic,,ble to tite civil, the other to the CiminAl law-declaring that sucih anti surih modes of proceedint iiall 'be the mnodes a engnizedl and established by the Etiglish law anti distingucshing each mode from the other by nunmbe.ing each as stinct section; subse1luent acts, instead of repeating suich pro- ,'ision, mnight declare that such or such gections of the preliminary act shaR be applicable to its own subject matter. s 2. Vith respect to Nos 3 and 4 of the papers, the bill, namely, andl the consolidating process. Title forgery lias bean selected ftor an dlutstration, since the natulre of the subject matter, invol-ring technicalities, and the mnultiplicity of the enactments, presented greatcr difficulties tuar any oiler branch of criminal law; andl yet these hae iall been surmounted. It is observable, that many clauses Jn the bill are re-enactments merely of existing regulations. They mtow form a part of the hill, thite the practicabiliiy of uniting the wvhole of anv given hranch of penal law, alould the union be leiem. ed advisable, might be Eletdonstrated. But the following consideras tioss tiMay serve to establish, that the bill shoolid be limited to those eCinaenents which are of a general nature only. TIe sense of a nenal clause is sometimes complete in itself, some- times only bv taking into the account certain extrincic provisions A general clause, for example, mnaking it pynal to tforge any deed, is complete in itself; bilt a particular cl-ttse makine it penal to forge sucti and sucll deeds, which, in furtherance of cecrtain civil regulations, litd been descrihed in ftmner parts of the act, is complete oniv rb incorporating with lit those descriptie particulars mnentioned iii the antecedent clau8c.. Particular clauses, thieretore. are identi- fledwvith the act in which they occur; siould therefore continie otuied with it ; and be consolidated only with the rest of its provisioa,s whole. 3. The code, coniolidation, and amendment of 'the whole criminal Itiw, lhs becn entircly completed. ANTH1ONY IIAMIMOND. Mth?tSAt. t4wh PARLMA lRMNTA RV TPfl1.'