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neighbours. They hail it as an omen of progress, as a token of victory over what is apt to seem to them a Dryasdust spirit of antiquarianism and adherence to a particular legal groove, simply because it was one which contented our fathers. With such a spirit, wherever it may exist, our own history as a Review advocating a sound progress in the amendment of the Law is sufficient to show that we can have no sympathy. We maydiffer from particular propositions of amendment, but Law Reform, as such, must always command our attention and our sympathy. The very valuable Society of Comparative Legislation in Paris, which has gathered and continues to gather into its fold the flower of the French Bar and Magistracy, has, as might have been expected, devoted no small amount of its time and space to the consideration of our recent advance in the direction of Codification. We have now before us several interesting Papers read by distinguished Members of that Society at various periods, from I874 to the close of the past year, dealing with the principal stages which have been reached by us on this road. It will probably not be an unprofitable work if we proceed by the help of our neighbours to see ourselves as others see us.
In his impartial and thoughtful review of the Homicide Law Amendment Bill, which passed from the late Recorder of London into the hands of Sir _]ames Stephen, our first critic, M. Ernest Bertrand, Councillor of the Court of Appeal in Paris, draws attention to several salient points of difference between English and French juridical conceptions. When he says that according to French notions, followed by the greater part of the countries of the civilised world, most of which have codified their Law, the first condition of a good Law is that it should be embodied in a clear and precise text which all should be able to consult and understand, we seem to be aware of a touch of irony. The English alone resist, continues M. Bertrand, but even among them many of the best men demand that the Com
mon Law should be formulated in writing. But M. Bertrand can see that it may well be very difficult for an English lawyer, brought up to what he calls the “formalism” of the Common Law, to free himself at once from all in it which is a useless and undigested mass of encumbrance, and fall back upon the principles and general rules which sufiice to constitute a Law. In criticising the language of some of our definitions, M. Bertrand shows how differently they strike foreigners and ourselves. Thus, he points out that a Frenchman reading the definitions of manslaughter and murder, given in 24 & 25 Vic., cap. I00, would naturally take the definition of murder to mean assassination, and that of manslaughter to mean murder. In the French Penal Code murder (le meurtre) is homicide voluntarily (volontairement) committed, and assassination is murder committed with premeditation or by treachery (guet-apens). The intent to kill is not necessary to constitute manslaughter, which arises from the material fact of homicide, and premeditation, continues M. Bertrand, is not the constituent characteristic of murder, which may arise without any premeditation. For instance, he proceeds, two persons meeting by chance begin to quarrel; one of them kills the other in the heat of dispute. This is manslaughter in England, because it was the result of sudden passion. In France, however, it would be murder, if the intent to kill were satisfactorily proven (Penal Code, Art. 295). Again, a man insults another, say by pulling his nose (an example which M. Bertrand has carefully culled from Blackstone). If the person so provoked unfortunately kills the insulter by a beating which has a fatal effect, but was clearly only intended as a chastisement, it is manslaughter. In France, the person killing his insulter would be actionable for blows voluntarily given without intention to cause death, but which, nevertheless, have had that effect (Art. 309, Penal Code). Yet again, a workman, in a populous town, such as London, throws down into the streets a piece of timber, or a heavy stone, and kills a person passing by; this is manslaughter, even though the workman must have known that there would be people passing to and fro beneath him. In France this would be only homicide, arising through want of precaution (imprudence), by Art. 319 of the Penal Code. From these and other examples which he adduces, M. Bertrand comes to the conclusion that both manslaughter and murder comprise, under one single technical title, several criminal facts of diverse natures, which in France would constitute different crimes or delicts, provided for by separate articles of the Penal Code.
The French Code has not defined homicide, because, as M. Bertrand says, the word seemed to carry its definition in its face. Homicide arises every time that one man kills another. In the English Bill, he notes, twelve sections were taken up with this point. On the whole, M. Bertrand saw much that appeared to need amendment in the Homicide Bill and its definitions. His criticisms are in some respects substantially identical with those which were at the time made in this country. Section 26, for instance, M. Bertrand observes, required a whole commentary to itself, which should extend over several pages. But he also understood clearly that the answer made to all such objections was: “This is a part of my system; what you would have may be preferable, but my system must stand or fall as a whole; if one part goes, the whole goes.” This is a line of reply undeniably difficult to meet. Still we believe that none of the criticisms which were made on the Homicide Bill will have altogether been made in vain, and the Criminal Code Bill cannot fail to have received all the benefit derivable from the careful consideration which its draftsmen desired it should receive at the hands of the legal profession and of the nation before passing into law. In_ M. Bertrand’s words, “it is only after various attempts, to which they shall themselves have lent a hand, that English jurists and legislators will be able to free themselves from the tyranny of old custom, and understand that a Code ought only to sum up principles and general rules, and that the application of these principles and rules to individual cases must be left to the discretion of the judges.” _
In a more recent number of the Bulletin of the Society of Comparative Legislation, one of the secretaries, M. Georges Louis, Advocate of the Court of Appeal, contributes a very clear and comprehensive survey of our various attempts at Codification, its succesful realisation in some of our Colonies and Dependencies, and of the general state of the question among us down to _]uly last. M. Louis points out the influence which the initiative taken by the State of New York in the fusion of Law and Equity has exercised upon Codification. This rupture with the old tradition, says M. Louis, rendered the Codification of Procedure and of the Common Law feasible, if not easy; and in these days, he continues, for Codification to be rendered feasible is to ensure that it will, sooner or later, be carried to a successful issue. The difference between Consolidation and Codification does not escape the observation of M. Louis. Vi/hen Sir James Stephen published his “ General View of the Criminal Law of England,” in I863, and said that the question was, how to detach the pure metal from the dross, and to mould it into the requisite shape, the plans of the majority of English law reformers, says M. Louis, stopped short at Consolidation. The advance which has been made between I863 and I878, is, therefore, in his eyes, as in the eyes of all Continental jurists, avery considerable one. That our present scheme of Codification only touches a portion of the field of Criminal Law, is, of course, obvious to our foreign critics, but M. Louis points out that the exclusion from the present Bill of that lesser class of delicts which is known on the Continent by the name of “ Contraventions,” may easily be justified,
and is, in fact, in accordance with the practice followed in the new Hungarian Penal Code; and it is not uninteresting to remark that a country, which offers several points of contact with ours in its Constitutional and Administrative features, has proceeded with its Criminal Law Codification in a manner very similar to our own. The major part of the new Hungarian Code, we learn from M. Louis, is the work of one leading juridical mind, that of Karl Csemegi. Laid on the table of the House first in I874, and again in I876, the Bill was only discussed by the Hungarian Parliament at the close of 1877. The two Chambers voted it within four months, and the Code was promulgated in May, I878. It is, no doubt, hoped by the promoters of our Criminal Code Bill that our Houses will follow the example of the Hungarian Parliament. M. Louis, however, suggests a doubt whether the low opinion which Sir ]ames Stephen appears to entertain of the usefulness of Parliamentary discussion of the Bill is not rather an extreme one. On the whole, our scheme of Codification gives M. Louis the impression of being essentially English, and he sees in it another proof of the truth of the saying, that the Penal Law of a country is that which best reflects its characteristics and its social condition. We have modified considerably the basis of our law on several points, M. Louis says, but nevertheless our work has, as a whole, been that of codifying the existing law rather than of creating a new law. The language in which the new code is cast appears to a foreign eye immeasurably superior to anything that has gone before it in this country. There is still a certain amount of seeming verbiage, but the danger of over-conciseness is too patent in Penal Law not to have been constantly present to the minds of the framers of the proposed Code. In this, as in other points, our Code may still be pronounced “ essentially English.”
Yet another feature of our new draft Code has attracted the attention of foreign jurists, and it is one which has a