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ment. That the work undertaken by this eminent jurist was a labour of love may be concluded from the following excerpt written so recently as December last.
Upon the subject of the codification of the criminal law I have hardly anything to add to what I have said on many occasions.
I believe that it lies at the root of all real reform on the subject. Until the definitions of crimes, the punishments appointed for them, and the manner in which proceedings for their punishment are to be conducted, are placed before the public in a plain, systematic, authoritative manner, hardly any one will know what the criminal law really is, and all attempts at its improvement will of necessity be feeble and unconnected, and in many instances productive of more harm than good.'
The above quotation faithfully indicates the scope of the Bill, but the process by which it is to be put into operation can only be learned after a careful examination of its provisions. The space at our disposal will not admit of a detailed analysis of them here, and it is therefore merely intended to enter upon a cursory survey of those of its prominent characteristics which are calculated to arrest public attention. The Code consists of 425 sections grouped under seven headings, the first of which is preliminary and miscellaneous, and the last exclusively occupied with procedure, whilst crimes are classified in the following manner :
1. Offences against public order, internal and external.
2. Offences by and against public officers, and against the administration of justice.
3. Acts injurious to the public generally.
4. Offences against the person, the conjugal and parental rights, and the reputation of individuals.
5. Offences against rights of property or rights arising out of contracts.
First and foremost among the changes incorporated into
* The Nineteenth Century, No. 10, p. 737.
the Bill, is the suppression of two time-honoured terms, together with all the learned lore attaching thereto. Blackletter lawyers perusing its index will sigh in vain for the familiar expressions, Felonies and Misdemeanours, words which conjure up a host of memories associated with a life-long study of the law. To their discomfiture they will soon discover that these two great classes of crime have been stripped of every distinguishing feature, and that the ancient distribution of offences into Treasons, Felonies and Misdemeanours has become merged in that of “Indictable Offences." Time was when Misdemeanours were of a trivial and unimportant character in comparison with Felonies, which usually involved the penalty of death, but neither as regards their relative turpitude, nor the punishments assigned to them, has the distinction been rigorously maintained. A classification which makes theft or bigamy a Felony, whilst offences if anything more heinous, e.g., perjury and conspiracy to murder are placed under the denomination of Misdemeanours, is entitled to scant veneration at the hands of those whose aim it is to render the law logical. Little regret is likely to be evinced at this alteration except by sticklers for what is antiquated, who will descry in the proposed re-arrangement a wholesale demolition of legal monuments. They will tell us that in the anxiety for uniformity, the codifier has been tempted into indiscriminate innovation which will be productive of future mischief. There is however, scarcely any probability that these dismal forebodings will be justified by events.*
It will be fresh in the recollection of many that in the Franconia case the Court for Crown Cases Reserved decided by a majority of one, that an offence committed within the three-mile zone of the English coast is not subject to the
* Sir Fitzjames Stephen has altered his mind since he published his “General View of the Criminal Law " in 1863. He then inclined to the opinion that the better plan would be to remodel the classification of felonies and misdemeanours. See page 110.
jurisdiction of the Central Criminal Court, and must therefore go unpunished by our tribunals. Section 3 of the Code reverses this ruling, and fixes the limit of extra-territorial jurisdiction in accordance with the Territorial Waters Jurisdiction Act of the past session.
Chapter II. treats of punishments, the varieties of which are enumerated and defined. Medicine we know has no panacea. Different means must be resorted to, according to the nature of disorders and the temperament of the patient. The art of medicine consists in studying all remedies, in combining them, and putting them into operation according to circumstances. So it is with punishment. Bentham points out * that as there is no punishment which taken separately unites all the requisite qualities, it is necessary to have a choice among many punishments, to vary them, and to make several of them enter into the same infliction. Following this sound doctrine, the Code, while abolishing solitary confinement, retains the punishments of death, penal servitude, imprisonment, detention in a reformatory, police supervision, flogging, whipping, and fines. It might prove interesting to investigate this catalogue of penalties, for the purpose of estimating the extent to which they are respectively conducive to beneficial results, but so extensive an inquiry would transgress the limits assigned to this article. Closely connected with the modes of inflicting punishment, is the length of sentence attached to the commission of crimes. Jurists are agreed that there ought to be a fixed ratio between crime and punishment, and the scale should be graduated so that the more destructive to the public safety and happiness the crime, and the stronger the inducement to commit it, the more vigorously should the remedy operate. Both Beccaria and Bentham insist that if punishment of equal severity be dealt out to the perpetrators of
Principles of the Penal Code.” Part iii., ch. vii. See also Montesquieu's "Esprit des Lois," Book vi., ch. xvi., and Book xii., ch. iv.
two crimes of an unequal degree of turpitude, there is nothing to deter men from committing the graver, so often as the attendant advantages to be reaped are greater. If, for example, the same amount of punishment be allotted to offences against property, as to offences against the person, all difference between those crimes will shortly vanish from the minds of the criminal classes. The sole object of punishment should be to deter the culprit from doing further injury to society, and to prevent others from committing the like offence. Punishment ought to be inflicted with a view to making the strongest and most lasting impression on the imagination of others, accompanied with the least torture to the body of the criminal. In other words, the degree of punishment, and the consequences of a crime, ought to be so contrived as to have the greatest possible effect on others, coupled with the least possible pain to the delinquent. That a punishment may produce the effect required, it is sufficient that the evil it occasions should exceed the good expected from the perpetration of the crime, including in the calculation the certainty of the punishment, and the deprivation of the expected advantage.* All severity beyond this is superfluous and therefore tyrannical. Can it be truthfully asserted that our own laws conform to the principles just enunciated ? Are they not too prodigal of punishment in respect to offences against property, and too lenient with offences against the person ? How little regard has been paid to the scale of punishments may be judged from the fact that whereas conspiracy to murder is punishable with ten years' penal servitude, the cutting of hop binds may be visited with fourteen years' penal servitude. This is but one of the many illustrations that might be adduced to prove the inconsistency and injustice of the present law. The Code will confer an incalculable boon on this nation, and indirectly on civiliza
* Beccaria on “ Crimes and Punishments," ch. xxvii., cf. Bentham's “ Principles of the Penal Code,“ Part iii., ch. ii.
tion, by rendering punishment proportionate to the guilt of the offender. To rectify the inequality of punishment for theft and fraud, the Judges in passing sentence are to take cognizance of the nature of the thing stolen or obtained, the position of the person committing the offence, the place where the crime was committed, the manner of committing the offence, and the value of the property taken. “In future," to borrow a simile of the Attorney - General's, • the crime of one who opens a fictitious bank or floats a company to work a sham mine, is to be visited with a severer penalty than that of a poor hungry wretch who purloins a mutton chop."
So too, a man who swears away another's life, is to receive a heavier punishment than one who gives an undeserved good character to a boy accused of petty theft. The wisdom of drawing these obvious distinctions cannot be too highly commended. In readjusting the maximum length of sentence upon some definite principle, and in totally abolishing cumulative sentences, most strenuous efforts have been made to bring the administration of criminal justice into harmony with the more humane spirit of the age. The law has been rightly accused of undue severity, in determining that not less than a certain amount of punishment shall follow the commission of particular offences. This system of minimum sentence is not unfrequently fraught with unnecessary hardship, and it has therefore been thought expedient to invest the judicial authorities with an limited power to mitigate punishment. Upon this matter Sir Fitzjames Stephen observes :
“After much study of the definitions of crimes, I have arrived at the conclusion that though it is possible to form definitions which will make the law clear, consistent and short, it is impossible to frame any definition which will not cover acts involving almost every imaginable shade of moral guilt. The result of this is, that a corresponding latitude must be left in the power of inflicting punishment.