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exception of those crimes, now practically reduced to one, which the common law punishes by death. The elasticity of the criminal law of Scotland has been much vaunted by our judges and jurists; my professional sympathies incline me to their view, and I hold with my profession that our judges and commentators have done their work well. But, as a citizen, I cannot forget that this elasticity of the criminal law has in past times and possibly within the memory of living men, been an instrument of the grossest oppression. Men have been tried and have suffered proscription and exile for taking part in public discussions such as are carried on not only with impunity but with acknowledged advantage in the political assemblages of our own time, and even at the sittings of this non-political association. I will venture to say that if the learned paper on Parliamentary Representation which was read last year in this department of the Social Science Association had been spoken at a public meeting in Scotland eighty years ago, the author would have read with great alarm the deliverances of the learned judges with reference to the criminality of attempts to alter the constitution of Parliament as by law established.
My reverence for our national system of criminal jurisprudence must not blind me to the fact that an unwritten criminal law, with its attributes of elasticity and adaptability to new forms of crime, is not peculiar to Scotland. Such a system once existed in England and very distinct traces of it remain to this day. Some of the most ordinary offences are in England indictable at common law, though the practice is to found the charges upon a statute in almost all cases. It is rightly held in England that the administration of the criminal law will most commend itself to the approval of the honest and law abiding portion of the community, when the judge is in a position to point to the very statute which has been broken, and when the public, by comparing the evidence with the statutory definition of the crime and its appropriate punishments, can satisfy itself that the law is justly administered and that the punishments are suitable to the offences proved. It has been well said that a code is the ultimate form of every good system of laws, although the development of a system of jurisprudence may be retarded rather than advanced by its premature crystalisation into a code. I agree with those who think that the laws of the United Kingdom have gained in symmetry and completeness from the large influence which our system accords to the opinions of judges. I agree that the basis of any really useful code must be the customary and jugde-made law of the country. No better illustration of this truth can be given than the example cited by Sir Travers Twiss in his address delivered last year to this department of the Association. I mean in the passage where that eminent lawyer explains that the success which attended the French Civil Code, and its adoption, with slight alterations, by the Parliaments of Italy, Holland and Belgium, is attributable to the fact that this code is founded upon the customary law of Western Europe originating under the Frankish Empire. I am not sure that in this country we are ripe for the enactment of a civil code, but I need hardly say that there are some branches of jurisprudence which come more rapidly to maturity than others, and our criminal laws, which are generally of a simple character, have doubtless attained to that stage of development at which it is desirable that they should be revised and embodied in a permanent form. I shall not occupy your attention by recounting the various attempts which have been made by the English jurists of our time to bring about this desirable result. Our Government has at length taken up the subject seriously, and a Commission, consisting of some of the most eminent judges of England and Ireland, submitted in their final report to Parliament a complete Code of Criminal Law and Procedure, which was brought in and, if I mistake not, read a second time, in the session of 1879. The code, which was drafted by Sir James, now Mr. Justice Stephen, has been generally approved of by the legal profession and the press, and there can be little doubt that it will, substantially in its present form, become law, and supersede some hundreds of statutes which now exercise the ingenuity of lawyers in England and Ireland.
I ventured to remark, in opening this subject, that the lawyers of Scotland had something to learn from the profession in England and Ireland; and, if I may be allowed to do so, I would earnestly invite the consideration of my friends who are interested in Scottish jurisprudence to the question whether the new Criminal Code, the biggest product of the legislative activity of our times, should not be made applicable to Scotland. I have had occasion, as part of my official duty, to study the proposed code and its various clauses, and I protest I can see no reason, nothing even approaching to a reason, for depriving Scotland of the benefit of a measure which has been recommended to Parliament as a great legal reform for England and Ireland. I have already considered the question of the comparative advantages of written and unwritten laws, and if you agree with me that the criminal law of a country is that which, of all others, ought to be embodied in clear and authoritative propositions, then the only question is, whether we are to have one code or separate codes of criminal law for the three kingdoms. The question has been already virtually decided for Ireland, with the approval of Irish jurists, and the code is a joint production of a Commission of English and Irish Judges. Why should it not be similarly decided with respect to Scotland ? The elements of criminal law are necessarily the same in all civilised countries. In countries acknowledging the same sovereignty there must be substantial identity, not only in the definition of what constitutes criminality, but in the punishment appropriated to different crimes. Certain differences, no doubt exist, distinguishing the law of Scotland from that of England and Ireland. In so far as these are substantial differences they are obviously indefensible. The social conditions of England and Scotland being identical, there can be no reason why an act of negligence or wrong which is punishable in one country should found only a civil action of damages in the other. Our Scotch law treats as criminal the neglect of duty by an engine driver or signalman, whereby the lives of the lieges are endangered. In England a statute has not been made to reach the case, and, unless the crime can be tried as manslaughter or assault, the act of negligence, as I understand, would not be indictable. This is a substantial difference, and ought to be removed, either by indemnifying railway servants in Scotland against prosecutions under this head, or by making negligence resulting in risk to life a criminal offence throughout the United Kingdom. With regard to mere differences of language and forms, the public have a right to expect the lawyers of the three kingdoms to settle these matters amongst themselves.
I have heard that the members of the Criminal Law Commission had expressed an inclination to adopt our Scottish term theftuously,' and if they would take along with it the Scottish term 'theft' which some persons might consider good English, the public would not greatly regret the sacrifice of the equivalent term 'larceny.' In exchange I should be prepared to sacrifice my predilections as a Scottish lawyer for 'culpable homicide' and would not be afraid to face a jury with a charge of manslaughter. If the truth must be told we always speak of manslaughter' in Scotland everywhere except in court, just as our English friends speak of 'theft' when they are not thinking of an indictment. It is really ridiculous to contend that the
trivialities of legal nomenclature should operate as an obstacle to the accomplishment of one of the first duties of the state, the embodiment in a written form of those principles of justice which ought to be universal in their operation, and the violation of which is to subject the delinquent to punishment.
There are some points of general interest raised by the Criminal Code which, if time had permitted, I should have desired to speak to. I shall only allow myself to enter upon one of these,-namely, the right of the state to permit, and if necessary require, an accused person to give evidence in his own case. By the practice of France and other European countries a prisoner is examined in open court on the facts alleged against him, and is allowed to give his evidence to facts tending to exculpate him or to disprove the charge. He is not tortured; he gives such answers to the questions put to him as he thinks fit. If he is an honest man he will answer truthfully, and in so doing will doubtless impress the jury who hear him favourably. Nay more, he may state facts which no one but himself can speak to, and which, if he is believed may conduce powerfully to his acquittal or justification. If he is a rogue he will most likely begin with some improbable story or transparent falsehood, but under the pressure of crossexamination, he will be driven out of his shelter, and in many cases surprised or shamed into speaking the truth. Supposing the examination to be fairly conducted society is a gainer by the process, because whether the man be guilty or innocent, truth is elicited, and to reach the truth is the object of the trial. The worst that can happen is that the prisoner invents a falsehood and sticks to it. One must credit the jury, then, with the same power of distinguishing between truth and falsehood which they are supposed to possess in relation to other witnesses, and in the experience of countries in which prisoners are examined in court it is