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Manslaughter, to take a strong instance, may be all but murder, and may be all but accident; and even if the offence were so defined (as probably it ought to be) as to distinguish between killing by culpable negligence, and killing by violence intended to hurt, but not to kill, still the circumstances of such negligence or violence would vary to an extent which would be represented in punishment by the difference between penal servitude for life and a fine."* In conformity with this expression of opinion, section 12, paragraph 8 of the Code, permits a fine to be substituted for penal servitude or imprisonment. No one doubts that the judges will exercise this power with prudence, but it is a serious question whether the Legislature ought not to pause before placing in the hands of the county magistrates throughout the kingdom so unfettered a discretion.
Under the designation of "matter of excuse," Chapter III. particularises the grounds of non-imputability for acts which would otherwise be deemed criminal : such, for instance, as childhood, insanity, drunkenness, compulsion, &c. An attempt is here made to reconcile the legal with the medical definition of insanity, and a wife is no longer to be exculpated on the plea that she acted under her husband's coercion. Applying the maxim de minimis non curat lex to criminal trials, Section 26 enacts, that "nothing shall be deemed to be an offence which appears to the Court having cognizance of the matter to be of too little importance to be treated as such, or if the justice before whom the case is brought for inquiry is of opinion that there are circumstances in the case which render it inexpedient to inflict punishment." In cases of this description the practice at present obtains of inflicting one day's imprisonment, which at the Assizes, as they commence from the opening of the commission on the previous day, implies the immediate discharge of the prisoner. The latter part of this section is merely an extension of the statutory power
* The Nineteenth Century, No. 10, p. 740.
now possessed by justices to dismiss persons charged with assault or larceny. It would seem from the language employed, that fuller powers are to be granted to the inferior than to the superior tribunal, but so needless a distinction may be obviated by slightly changing the wording of the section. What has been previously noted with regard to the magistrate's power of substituting a fine, may, with equal propriety, be observed of this provision, and the public will assuredly look with misgivings upon any extension of discretionary power entrusted to untrained justices of the peace.
Those will be doomed to disappointment who had hoped to find in Chapter IV., under the heading“ parties to the commission of an offence," an explanation of the terms principals of the first degree, principals of the second degree, and accessories before the fact. Such subtleties are omitted from the Code in order that he who plans and he who executes the offence may be placed in the same category. The lawyers have assigned two curious reasons for refusing to recognise accessories before the fact in crimes other than felonies. Treason, it is said, is so infamous an offence, that all persons connected with the commission of it must be regarded as principals, whereas misdemeanours on the other hand are of so trivial a nature that no such distinction can be entertained. It might have been foreseen that the hand which had the courage to brush away the useless cobwebs enveloping felonies and misdemeanours would not scruple to disembarrass the Code of any unserviceable minutiæ connected therewith. One of the beneficial consequences that will result from the above alteration is an avoidance of prolixity in criminal pleading ; but in spite of the Code, there must necessarily rest in the popular mind a well-marked distinction between the authors and the perpetrators of a criminal conspiracy. A difference exists between the principal offence, namely, that which effects the evil in question,
and the accessory offence which lends greater or less impetus to the principal offence. The confederate who incites might have relented before committing the crime or he might have lacked the courage to carry out his fell purpose, and, by a parity of reasoning, the hand that accomplishes his project might never have been implicated but for his instigation. It is, however, rarely possible to estimate the exact share of guilt resting on the shoulders of each individual, and the Code therefore brands with equal ignominy every participator in an indictable offence, leaving it for the judge or magistrate before whom the case is tried to apportion the punishment. Section 30 of this chapter provides in accordance with the dictates of humanity that" a husband or wife who receives, comforts, or relieves his or her wife or husband, knowing her or him to have committed an indictable offence, shall not become thereby an accessory after the fact to such indictable offence.” This indulgence is at present confined to the wife,* and it needs no feat of advocacy to convince one that the privilege should in justice be extended to the husband. Some surprise may naturally be felt that in the endeavour to remove all seeming incongruities, the expression “accessory after the fact " should have been retained. Taken in its ordinary signification, accessory means a person who aided in the given crime and who therefore must have been a party to it prior to its completion.
Part II. comprises offences against public order, internal and external. Here are collected (a) High Treason and other offences against the Queen's authority and person; (b) unlawful assemblies, riots, breaches of the peace ; (c) unlawful oaths, seditious words, conspiracies and libels; (d) offences relating to foreign countries; (e) offences against the person on the high seas. To enter upon a comparison of existing legislation with the modifications proposed in
Hale's “ Pleas of the Crown," p. 621.
this portion of the Code would not, it is surmised, warrant any detailed comment. A consideration of them may therefore be dismissed with a mere mention that the new definition of treason excludes among other fictions, the slaying of the Lord Chancellor or a Judge on the Bench, and that with regard to accessories after the fact to treason, and in cases of piracy, the death penalty is commuted to penal servitude for life as a maximum punishment.
Part III., entitled, “ Offences by and against public officers and against the administration of justice,” is chiefly a recapitulation in a condensed form of the law, as it at present stands. It should, however, be noticed that the offence of perjury has been expunged, and in its stead the definitions of false evidence and false declarations have been framed so as to bring within the meshes of the Criminal Law, acts, which though equally injurious to society as perjury itself, have hitherto escaped the vigilance of the Legislature. Furthermore, Section 84 is designed to deter persons from making claims similar to those of the “unhappy nobleman now languishing in Dartmoor." Whenever rewards are offered for the recovery of the proceeds of extensive robberies, an outcry is raised that a felony is about to be compounded. Common prudence suggests that such bargains should be prohibited, but instances do occur where compensation to the injured party, is the most satisfactory course that can be adopted. To meet the latter class of cases, Section 96 enables persons to make an agreement not to prosecute, on condition that the compact be authorized by a Court or a Judge of the High Court of Justice. The public will learn with feelings of calm indifference that the Code seeks to erase from the catalogue of crimes the effete offences of maintenance, champerty, and common barratry. Some unlearned readers may possibly be desirous of informing themselves as to the nature of these misdeeds. For their special behoof then, be it stated that maintenance is an officious intermeddling in a cause
depending between others, by assisting either party with money or means to prosecute or defend it; champerty is maintenance with the addition of an agreement to divide the thing in the suit, and common barratry is the practice of exciting law suits and quarrels.
Part IV. is devoted to “ Acts injurious to the public generally.” Under this denomination come offences against religion and morality, and common nuisances. Here, as might have been anticipated, the codifier declines to pepetuate a host of penal statutes symbolic of the bigotry of a bygone age. Happily we live in times when the State no longer compels compliance with the tenets of the Church.* Prosecutions for heresy and schism, would if instituted in our days, inspire a revulsion of feeling throughout the entire country. The Code imposes no restriction upon the dissemination of spiritual and moral dogmas so long as the teaching does not overstep the bounds of decency, and whilst seeking to repress every species of public impropriety, whether in speech or conduct, it secures to everyone the most complete liberty of conscience. One cannot help expressing a regret that when obliterating many vestiges of former intolerance, the opportunity was not seized to amend a law which keeps alive the puritanic sentiment still prevalent in this country. The Sunday Closing Acts are a flail placed in the hands of the Sabbatarians wherewith to scourge those who dare to differ from them as to the way in which the day of rest should be spent. A repeal of the 21 George III., chapter 49, might provoke a discussion which would retard the progress of the Bill through Parliament, but that excuse will not justify a refusal to abrogate an arbitrary and illiberal law.
The popular and legal senses of the word "malice” are so widely divergent that Judges can rarely get juries to master the distinction. Legally, malice implies
See Montesquieu's condemnation of the practice of enforcing religious observances in his “ Esprit des Lois," Book xxv., ch, xii.