« PreviousContinue »
illegality of conduct,” but the meaning popularly attributed to it is “ malevolence of an immoral kind towards a particular individual.” To avoid misunderstandings the Code substitutes the legal explanation of the word itself in the definitions of murder, libel, arson, and malicious mischief. Part V. consists of offences against the person, the conjugal rights, and the reputation of individuals. The Code completely revises the law of homicide, annuls constructive murder, and establishes the doctrine of provocation upon a more reasonable basis. According to the present law, a person who causes the death of another by any act done in the commission of a felony, or in resistance to lawful apprehension, is guilty of murder, however unlikely it may have been that the act would cause death. By Section 134, murder is restricted to cases in which death is occasioned either intentionally or by acts of reckless cruelty or lawlessness. “The laws against the crime of infanticide, under pretence of humanity, are a most manifest violation of it. Compare the offence with the punishment. The oflence is what is improperly called the death of an infant, who has ceased to be, before knowing what existence is—a result of a nature not to give the slightest inquietude to the most timid imagination; and which can cause no regrets but to the very person who, through a sentiment of shame and pity, has refused to prolong a life begun under the auspices of misery. And what is the punishment? The barbarous infliction of an ignominious death upon the unhappy mother, whose very offence proves her excessive sensibility; upon a woman guided by despair, who, in hardening her heart against the softest instinct of nature, has harmed none but herself! She is devoted to infamy because she has dreaded shame too much.” Thus earnestly did Bentham plead the cause ofthe ill-used sufferer, and in a no less pathetic strain wrote Beccaria, and that phlilosopher whom the great French poet of this century has been pleased at one time to crucify, and at another to deify—Voltaire! By Section 138, the Code reduces the crime of infanticide from murder to manslaughter, if the mother at the time when she committed the act was deprived by bodily and mental suffering, of the power of self-control. The leniency which marks these innovations springs from a desire to render punishment more certain, by tempering its severity. Those who have experience in our Criminal Courts, cannot have failed to observe the reluctance with which juries stigmatise as a capital offence, an act which is so merely in the eye of the law. Every assize bears testimony to the fact, that juries persistently refuse to convict of murder upon purely technical grounds. In vain do prosecuting counsel beseech and judges exhort them to dismiss from their minds all contemplation of the consequences of their decision ; in vain do they enjoin them to leave out of consideration the circumstance that upon their verdict hangs the life of a human being. juries are at times called upon to determine whether they will violate their oaths or condemn to the gallows the victim of a barbarous law, and, guided on such occasions by their instincts if not by their intellects, they do not hesitate to adopt the former alternative. The deduction to be drawn from their verdicts has not been thrown away, and in future they will be relieved from the painful dilemma in which the law now places them.
VVhilst holding out the hand of mercy to the woman who destroys her new-born offspring, the protection of infant life demands that those who wilfully cause the death of a living child in whose system an independent circulation has not been completely set up shall bring themselves within the pale of the criminal law. By reason of this casus omissus malefactors have not unfrequently escaped, but Section I68 of the Code will effectually supply the deficiency.
The next improvement which the Code will accomplish is contained in Part VI., wherein offences against the rights of property or rights arising out of contracts are successfully
treated. The six Consolidation Acts of 1861, together with the common law definitions of crime assumed or embedded in them, are full of needless intricacy and hardly intelligible technicality. In inconsistency and obscurity, however, the Larceny Act by far surpasses its five companions. The classes of things that are or are not capable of being the subject of larceny, and the circumstances which must combine to constitute the offence, so complicate this branch of the law as to render it utterly incomprehensible to the uninitiated. Nothing could well be more irrational than the methods by which its principles have been maintained, nothing more arbitrary than the expansion of its definitions. This deplorable state of things the Code will ameliorate, and, by means of careful generalisation, compress within modest proportions the mass of incongruous matter. There is no principle more deeply rooted in English Law than this, that no person shall be compellable to answer any question which might tend to criminate him. This inflexible rule is, nevertheless, to some extent, relaxed by Section 213, which provides that “ no one shall be entitled to refuse to answer any claim in the nature of a bill of discovery, or any question in a civil proceeding, or in bankruptcy, upon the ground that his doing so would tend to show that he had committed an offence of a fraudulent nature.” The only other alterations in this part which call for remark are Chapters XXX. and XXXII. By the former,_prosecutions for burglary and all distinction between that offence and housebreaking are done away with; by the latter, the law of forgery has been recast and greatly simplified.
\/Ve have now arrived at that important division of the Code which prescribes the mode in which persons who have transgressed the law may be brought to justice. “ In Turkey,” says Montesquieu, “ where little regard is shown to honour, life, or estate of the subject, all causes are speedily decided. The method of determining them is a matter of indifference, provided they are determined. The bashaw, after a quick hearing, orders which party he pleases to be bastinadoed, and then sends them about their business. But in those countries where the life of the meanest subject is most precious no man is stripped of his honour or property till after a long inquiry, and no man is bereft of life till his very country has attacked him, an attack that is never made without leaving him all possible means of making his defence.” Now that the English are about to reorganise the Government of Turkey in Asia, there seems a prospect that the reproach levelled at her by Montesquieu maybe removed, and if we would render his second statement thoroughly applicable to this country we must also embark upon extensive reforms at home as well as abroad. The first Section of Part VII. empowers the judges to make subsidiary rules as to procedure. Section 234 provides that no civil remedy shall be suspended by the fact that the act complained of amounts to a criminal offence. Consequent upon the abolition of every distinction between felonies and misdemeanours, Section 286 enacts that one form of procedure shall be adopted in all proceedings against persons accused of indictable offences. The present regulations as to arrest, bail, challenge of jurors, and the separation of the jury before giving a verdict, differ in many essential particulars in felonies and misdemeanours, but a resume? of the means by which the Code rids itself of these anomalies would trespass too largely on the space at our disposal. Section 290 abolishes the law of venue, through the defects of which many prosecutions have proved abortive. Chapter XL. contains the necessary provisions as to the local jurisdiction of Criminal Courts, and empowers the High Court to change the place and mode of trial (Section 304). There is a manifest advantage in enabling the Court to direct that proceedings shall in suitable cases be conducted after the model of civil proceedings, for though, in a sense, nuisances, assaults, libels, and the like are public wrongs, they are
viewed rather in the light of infringements of private civil rights, and by assimilating the procedure in such cases to that of civil trials, the accused will be permitted to give evidence on his own behalf. This Section abolishes writs of certiorari for transferring criminal cases into the Court of Queen’s Bench. Power is given by Section 335 to any _]udge of the High Court to order evidence to be taken by commission in criminal proceedings. Ample provision is made that in all cases timely notice of the nature of the charge, and the evidence by which it is intended to be supported, shall be given to the defendant (Sections 348— 352, 359, 371). Section 357 abolishes all proceedings to outlawry, and renders absconding from justice an act of bankruptcy. Section 372 empowers the Court to direct the attendance of witnesses not called by either side, and by Section 380 the time-honoured jury of matrons is replaced by that of three qualified medical practitioners. Section 383 enables the Court to dispense with the presence of the defendant if he misbehaves himself. At present, unless a jury have agreed upon their verdict by twelve o’clock on Saturday night, they must be discharged, but by Section 385 a verdict may be received on Sunday, and all such proceedings as are subsequent thereto, may be taken on that day. Section 415 permits costs to be given in all cases whatever. By virtue of 33 & 34 Vict., chapter 23, section 4, a Court can order compensation not exceeding £100 to any person whose property has been injured by any felony, but section 423 extends this power to all injuries inflicted either upon the person or property through any indictable ofi°ence—a course suggested by no less an authority than jeremy Bentham.
One of the changes which is sure to be warmly debated is that of interrogating the prisoner. As the law at present obtains, a prisoner is permitted to make a statement during the preliminary investigation before the magistrate, but he