THE CRIMINAL CODE.

LETTER I.

TO THE EDITOR OF THE SPECTATOR.

69, Chancery Lane, 12th June 1846.

Sin—Great events are taking place around us, some which we note, others which we overlook; and the intrinsic greatness of which is strangely dispropor- tioned often to the attention which we grant to them. The repeal of the Corn- laws, and (probably) the fall of the Peel Ministry, will not be the only marking facto of the year 1846 for future history. A thousand years hence, as the year 529 in the annals of the Lower Empire, 1846 may perhaps be chiefly remembered as having witnessed the birth of a code of laws, the first portion of which is to be found in the recently-published " Second Report of her Majesty's Commissioners for Revising and Consolidating the Criminal Law."

The scope of the original Criminal Law Commission, appointed on the 23d July 1833, (4th Will. IV.,) and continued from time to time, did not extend be- yond the " digesting" the actual criminal law, written or unwritten; a neces- sary undertaking, no doubt, in the first instance, when it is considered that the statute criminal law alone for England and the United Kingdom lay scattered at that time through thirty thick quarto volumes varying from nearly 600 to nearly 1,100 pages; to which six more volumes, averaging 1,000 pages each, have been added since that period; and tbis exclusively of the Irish statutes before the Union, ended' the whole mass of text-writers and law reports. The result of that Commission lies before me in the " Act of Crimes and Punishments," contained in the Seventh Report of the Commissioners, 1843, and in the " Act of Pro- cedure," contained in the Eighth Report, 1845. It is essential to bear in mind that this first Commission had no reference to the amendment, but only to the consolidation of the law; although the Commissioners did incorporate into their work, as they tell us, " certain modifications, of which they deemed the ad- vantage to be manifest," and also " suggested various other modifications which they thought were proper to be made." By overlooking this, well-meaning writers, such as the author of the little tract "On the Principles of Criminal Law," pub- lished in Mr. Pickering's series of " Small Books on Great Subjects," have hound fault with the first Commissioners for not doing that which they had really no business to do, i. e. amending generally the law. The case is now altered; and the new Commission of the 22d Febrility. 1845 (8th Viet.) authorizes Sir Edward Ryan, with Messrs. Starkie, R. V. Richards, B. Ker, and Amos, (three of the old with two new Commissioners,) to consider the expediency of consolidating all or any part of the criminal law with altera- tions and additions, and to prepare bills tor the purpose. From this second Com- mission two Reports have already proceeded; the one an incidental one, so to speak, en Religious Disabilities; the other containing the first portion of the proposed Bode. Now, however exciting may be the hazards of party warfare at the present juncture, the remodelling of the whole criminal law is a matter of deep and instant importance to the lives and liberties of every one of us; the more so as, whilst many of the alterations proposed appear highly laudable, some again seem to be at least of a doubtful, if not mischievous character. In bringing the chief provisions of the Code before your readers, I will of course endeavour to avoid anything of a technical nature. This will be the easier, as the matters of which the proposed act treats are for the most part matters of general competency, if its title tells true: "An Act for Consolidating and Amending so much of the Criminal Law as relates

to Incapacity to Commit Crimes, Duress, the Essentials Of,iCriminal Injury, Criminal Agency and Participation, and Homicide and other Offence's against the Person."

Let me, however, first advert to the inconvenient shape in which the proposed Code is offered to our notice. It is divided into chapters, sections, and articles, the numbers of the articles beginning anew with each section; so that in quoting any particular article, three references must be made, as " Chapter I, Section 7, art. 3"; and consequently a threefold chance of error is induced. How much more simple and ex.peditions is the system of the French and Austrian Codes, for in- stance, in which all the articles follow one another in regular succession, without reference to the divisions of chapter, sections, &c., which the.general plan may re- quire: so that there need be but a single reference (" Art. 479," for instance), and consequently but a single chance of error. This, however, is easily mended.

The first two articles of the Code stand as follows: 1. " No person shall be cri-: minally responsible for any act or omission, who at the time of such act or omis-

sion is in a state of idiotcy." 2. "No person shall be criminally responsible for any act or omission, who at the time of such act or omission, by reason of incapa- city or weakness of mind, or of any unsoundness, disease, or delusion of mind, wants the capacity, which the law otherwise presumes any person to possess, of discerning that such act or omission is contrary to the late of the land."

With the first article, I believe, few persons will find fault; although the author of the "Small Book" on man's power over himself to prevent or control insanity, adduces a remarkable instance of a fully-developed moral sense, and consequently moral responsibility in an idiot. But the second, in the words given in italics, introduces a modification of the law so important that we should not at least ac- cept it without consideration—so important, that one of the Commissioners, Mr. Starkie, has felt himself compelled to express his dissent from it M a separate re- port, annexed to that of the majority. The legal definitions of such insanity as shall amount to a negation of criminal

responsibility are fully given in a note by the Commissioners: e. g. "Having less understanding than an ordinary child of fourteen years," (Lord Hale); "a natural disability of distinguishing between good and evil," (Sergeant Hawkins); "in- ability to comprehend the nature of one's actions, and discriminate between moral good and evil, (Lord Ferrers' case); "not every idle and frantic humour of a man, or something unaccountable in his actions, but his being totally deprived of his understanding and memory, and not knowing what he is doing any more than an infant, a brute, or a wild beast," (Mr. Justice Tracey); " being incapable of distinguishing right from wrong, or being under the influence of any illusion, in respect of the prosecutor, which renders the mind at the moment insensible of act one is about to commit," (Mr. Justice Leblanc); "being incapable of judging between right and wrong; and at the time of committing the act, not considering that murder is a crime against the laws of God and man," (Lord Chief Justice Mansfield); " not knowing that one is committing an offence against the laws of God and nature," (Lord Lyndhurst); " being quite unaware of the nature, cha- racter, and consequences of the act one is committing . . . being really uncon- scious at the time of committing the act that it is a crime," (Lord Denman).

Again, the majority of the judges, in their answers to certain questions i pro-

posed to them by the House of Lords in 1844, respecting partial insanity, declare, that assuming that the inquiry is "confined to those persons who labour under such partial delusions only, and are not in other respects insane," the party ac- cused is punishable' notwithstanding he " did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit; if he knew at the time of committing such crime, that he was acting contrary to law," i. e. to " the law of the land."

And, lastly, the question put to the jury, where the plea of insanity is raised, is, whetbei the prisoner was able to distangeish between right and wrong? Wearisome as the above enumeration must have seemed to the reader, it prone

one thing at least,—the necessity. of settling the questiOn; and the Commissioners are certainly entitled to the praise-of having framed a positive and perspicuotia rule, however lengthily worded, which reduces the ground of criminal responsi- bility to the simple question—Was the prisoner capable of discerning that he was acting contrary to law?

That the rule so framed differs, however, from every previous definition of it, will not, I think, be for an instant contested; the great majority of them contain- ing the notion of moral wrong, which is the modification proposed by Mr. Starkie, the dissentient Commissioner: "It appears to me that it would be advisable to alter the article as above suggest4 by adding after the words a delusion of mind,' the words is unconscious that such act or omission is wrong.'"

The objection of the Commissioners to this is, " that the criterion of kno"ng what is morally right or wrong, or what is consonant or opposed to the will of Good, is not sufficiently certain for the direction of inries; more especially as the law respecting alleged crimes of various descriptions must be applied to persons of different religious persuasions." The objection is still more forcibly stated by Mr. Stock, in his treatise on the Law of Non Compotes Mentis, p. 65, " If the con- sciousness that an act is wrong, not that it is forbidden legally, is in the case of a non compos mends to be made the test and criterion of cnmmality, the breach of virtue, not the breach of law, is made the ground; the prevention of sin, not the protection of the community, is made the end of punishment. Consistently with such a principle, the position that there are male proharita as well as ma4 in se can hardly any longer be maintained; for it seems difficult to conceive on what grounds a person of sound mind can be considered a proper subject of punish- ment on account of an act not immoral in itself, but against the provisions of statute or common law, if one of unsound mind is to be acquitted of a crime be- cause he sees no wrong in what he does, although as well aware as the other that the laws of his country have forbidden it." The above reasoning seems very strong. Let us, however, apply it to a case which might easily have occurred.

Hadfield, who was tried for shooting at George the Third, and acquitted on the

ground of insanity, used sometimes to call himself Jesus Christ, and sometimes God, (see Collinson on Lunacy, L, pp. 480, and following). On the 11th May 1800, four days before the attempt on the life of the Sovereign, he called himself God Almighty's servant, and said he was going to build khoesein White Conduit Fields, where he was to live with the colder Trnelock; he was to be God, and Traelock Satan. At one or two o'clock on the following morning, he 'suddenly jumped out of bed, and alluding to his child, a boy of eight months old, of whom he was usually remarkably fond, said he was about to dash his brains out against the bed-post--" God d—n his little eyes! I'll kill him; God has ordered me to do so."

Suppose Hadfield had murdered his child—suppose he were brought to trial under the proposed Code, still under the influence of the delusion—unless it could be proved that he did not know the act to be contrary to the mato of the land, he would be convicted, howeier clearly his insanity might be proved.

Or suppose a man otherwise of mild dispositions, labouring under the like delu-

sion of fancying himself God Almighty. He is insulted by some sceptic; so- lemnly reproves him; walks quietly home, takes a knife, seeks out the offender, and stabs him: on being seized by the bystanders, and asked whether he is not aware that he has been committing murder? • Certainly, your laws Call it murder; but .I am God Almighty: I merely punished a blasphemer." He is brought to trial, and a lying verdict can alone save him. The code clearly con- victs him, as he knew the act to be contrary to the law of the land.

The case of Martin, the incendiary of York Minster, which I shall advert to is my next, will afford a new proof of the murderous tendency of the proposed new rule of law.