THE CRIMINAL CODE.
LETTER III.
TO THE EDITOR OF THE SPECTATOR.
The third article of the Code is—" Provided that no person shall be ex- empted from criminal responsibility by reason of any teniporary incapacity, i which he shall have wilfully incurrd by intoxication or other means. This is the old rule of English law with respect to crimes committed during intoxication. It is harsher than that of several Continental systems of legislation; e.g. that of Austria, where complete drunkenness is made an excuse, when not incurred with the direct intent to commit the crime (Art. 2, Penal Code). The rigour of the English law is, however, mitigated by the principle, that " although intoxication is not an excuse for crime, it may be a fit subject for consideration, with reference to the intention with which acts have been committed," (Note to Art. 3).
Art. 4. " Incapacity by reason of unripeness of mind, as in Art. 2 of this section is mentioned, shall be presumed to exist in the case of an infant under the age of seven years, and proof to the contrary shall not be admitted." Art. 5. " Incapacity by reason of nnnpeness of mind, as in Art. 2 of this section is mentioned, shall also be presumed to exist in the case of an infant of the age of seven years, and under the age of fourteen years, until the contrary be proved." Let us also observe, that with respect to juvenile offenders the law of England is harsher than that of the chief Continental codes.
In France, (see Code Penal, Arts. 66-9,) up to the age of sixteen, it is a question for the jury whether the offender acted with discretion (discernment) or not In the latter case, he is to be acquitted; but may be detained for his education in a house of correction until twenty-one. In the former case, he is convicted; but can neither be sentenced to death, to the hulks, nor to deportation (penalties answering more or less to our transportation); his sentence cannot exceed twenty years' im- prisonment in a house of correction, and is generally about half that which would be inflicted on a person of full age. And except for the gravest offences he is not
to be sent before a jury, but before the "correctional tribunals," (tribunaux correctionnels); whose procedure is more summary. In Austria, (see Penal Code, Art. 2,) offenders under the age of fourteen are held unaccountable.
In Prussia, (Code, Part II. Art. XX. s. 17,) the punishments to be inflicted on infants and madmen are declared to be only preventive of future injury, and can never reach the full rigour of the laws.
Perhaps we might adopt from the French Code the fixing at sixteen the period up to which incapacity by nonage (if we may so call it) may be admitted. Let it be recollected, that both mind and body are generally more precocious in France than in our own country.
The rules of the Code as to duress are simple, and involve a humane modi- fication of the present law. The first article embodies the present rule: Art. 6. "Duress inducing well-grounded present fear of death shall be sufficient to excuse a person acting under such duress from penal consequences, except in case of treason and homicide."
Articles 7 and 8 extend the duress which should excuse a person in the treasons of " levying war against the King," or " adhering to the King's enemies "; and also in the supplying money, provisions, stores, &c., in furtherance of a treasonable design, to " a well-grounded fear of grievous bodily harm." Art.. 9 also exhibits a humane modification of the existing law; yet, as we shall hereafter endeavour to show, liable to some objection. " No woman shall be liable to conviction in respect of any act of receiving her husband, or any other person in his presence, by his authority, or of harbounng or concealing her husband, or any other person in his presence and by his authority, or of aiding the escape of her husband from justice.' When it is stated that the present law only excuses the wife in the case of receiving the husband, or some other person jointly with her husband," (Note to Art. 9,) it will be seen at once that the proposed article is a vast improvement upon it. But does it not, at the same time, go too far and not far enough? Why should the wife be exempted from punishment for receiving or harbouring any person in her husband's presence, or by his authority, although the capture of
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such person might notinvolve her husband in any penal consequences? And, again, if the wife is to be exempted from punishment for aiding the escape of her husband from justice, why not also for aiding in the escape of any other person, whose capture might so involve her husband? The law of Scotland, as quoted from Mr. Alison by the Commissioners, exhibits the real principle which the Commissioners appear to have thus inadequately carried out. By the first prin- ciples of nature, a wife is bound to protect, defend, and cherish her husband, in all circumstances; and not the less so because he has been involved in crime, and has. no refuge but in her affection and fidelity. She cannot, therefore, be involved in any prosecution for any act done by her from such motives, even though it should,. in itself savour of a criminal nature." I should therefore propose, in lieu of Are. 9, a more general provision to the following effect: " No woman shall be liable to conviction in respect of any act done with a:view to protect her husband from justice, or to aid his escape therefrom." I may, perhaps, here cursorily advert to a suggestion of the before referred to small book On the Principles of Criminal Law," (p. 73,) which tends to the expunging from the law all penal provisions against the concealment of offenders. I advert to it chiefly in order to express my decided dissent from it. If the receiving of stolen goods be retained as an offence, surely the harbouring of offenders is a far more heinous one. But it may admit of consideration, whether the exemption of the wife from punishment for this offence—grounded as it is on the legal duty of love and obedience which she owes to her husband—should not extend to all children of the offender, being still minors; persons whom the law places equally under his control We now come to an omission from the Code of at least as great importance as all predous additions to it—that of the rules of law with respect to marital coercion.
Under the present law, coercion by the husband, when present, is presumed, until proved to the contrary, except in cases of murder, treason, and other grievous offences; the authorities, however, being doubtful as to some of them. The prin- ciple of the exceptions is, that the specified offences are male in se. But it is well said by the Commissioners, "It may perhaps be thought, that on the as- sumption of the wife's reluctance to commit crime, unless ander the influence of marital coercion, her reluctance may be regarded as greater, and consequently the coercion more powerful, in those offences of great magnitude wherein the plea of coercion is not admitted." And again, "It seems inconsistent that proof of the strongest menaces by the husband, even though he be known by the wife to be close at band, are (qu. is?) not allowed to be any excuse, whilst the bare presence of the husband, without proof of direct interference, and though the wife be more active in the commission of the crime than himself, is a complete justification. • * • The present rule of law may be thought to offer an inducement to cri- minals to employ their wives to assist them in the execution of petty offences, and to prevent their wives from exercising the resistance and influence which is in their power." One of the Commissioners, Mr. Starkie, has protested against the omission. I confess that I side with the majority of the Commissioners, as well as with the author of the tract " On the Principles of Criminal Law," in thinking that the doctrine of marital coercion should be expunged from the law. And the omission will entirely harmonize with the above suggested provision for exempting the wife from punishment for protecting her husband from justice. In yielding to her husband for the commission of crime, the wife clearly does that which makes her husband liable to punishment. To say that she is to be equally irresponsible whether she contributes to bring him to punishment or to save him from it, ap- pears absurd in the law, and certainly most degrading to the female herself. I will not stop long over the section "Of wilful, malicious, negligent, and acci- dental injuries," to which some objections have been raised by Mr. Starkie; although I might not altogether approve of Art. 2, making only those injuries by omission punishable where the omission is a breach of some duty imposed by law, or gives cause for a civil action. So that a man who sees another about to drink poison and does not warn him, or allow a beggar to die slowly of disease and want before his door, is to be exempt from all punishment. This is, however, e present law; and the question raised is of too speculative a nature to be here e into.
But we must sincerely thank the Commissioners for the abrogation of that ab- surd rule by which a man committing an unlawful act was held responsible for all its consequences however fortuitous: so that if one shoots at a wild pigeon and kills a man, it is excusable homicide; if at a tame fowl, out of mere wanton- ness, it is manslaughter; but if with the intent to bag the latter bird, murder. May such rubbish be speedily consigned to eternal oblivion. Nqi will I do more than notice section 3, "Of criminal agency and partici- pation," thus remarked on by the Commissioners. " Some material changes are proposed to be introduced into the law of principal and accessory. 1. All dif- ference of punishment between principals m the first and second degree, and accessories, is proposed to be abolished. 2. The offence of being an accessory after the fact is proposed to be abolished; and it is recommended to provide, under the head of offences against the administration of justice,' for such parts of the present law relating to accessories after the fact as it may be desirable to retain. 3. The offence of being an accessory is made a substantive offence. 4. The distinctions of the law upon the subject of accessories in cases of treason, felony, and misdemeanours, are taken away.' The modifications here introduced appear beneficial ; but the subject is too technical for discussion in this place. The next chapter, " Homicide, and other offences against the person," contains matter of more serious interest to the general reader. A lissaurrim.
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