SIR JAMES STEPHEN ON CRIMINAL LAW.*
A BOOK can scarcely fail to be valuable, if it be the mature out- come of years of reflection, discussion, and labour in connection with one subject. Such a book is this. It is nearly fourteen years since Sir James Stephen published his General View of the Criminal Law, which obviously was a result of protracted labour. Since that time his experience in India has helped to fit him for grappling with the onerous task of reducing to order the absurd classifications of our criminal law ; and his prepara- tion of the unfortunate Homicide Bill of 1874, and of Lord Coleridge's Evidence Bill of 1873, all led up to the construction of this Digest. We expected with confidence that he would perform his task with skill, care, and general success ; and this confidence has not been misplaced, for there is little doubt that the book is the most intelligible and most nearly complete account of the criminal law to be found in the language. A good Digest, it is true, is a long way from a good Code, but it is an excellent— some would say a necessary—preparation for the latter. We do not doubt that many persons who have not been hopeful about the expediency or utility of codifying our law will take courage when they see the small size of this volume, and recognise its precision and comprehensiveness. At the same time, it is not, and does not profess to be, a perfectly com- plete Digest ; indeed, it omits much which any final and authoritative Code would of necessity include. " The Digest," says the author, "is intended to give the whole of the law relating to each of those every-day offences which commonly occur in the administration of justice, as fully and as shortly as is consistent with accuracy." It does not profess to include offences punish- able on summary conviction. It avowedly gives the go-by to a large portion of the Statutory law. Nor do we find on inspec- tion that it really deals with all " the every-day offences," and that, as is implied in the Introduction, " any offence not men- tioned would be rather an historical curiosity than a matter of , practical importance." Take, for example, offences committed by those who obstruct the course of justice, and are guilty of contempt of Court ; though important and peculiar, this category of offences is not specified. If it be said that they are more properly classed under the law of Criminal Procedure, which is outside the author's subject, we do not exactly find that the execution quite corresponds with a. design to digest the whole substantive law. Take, for instance, the peculiar offence of acting as an attorney without being qualified,—that is not men- tioned. Neither is the offence of colluding to defeat the ends of justice, except so far as that is provided for by the 18th Eliz., c. 5. It is alike interesting and important to know for what crimes corporations may be indicted, and the question has been the subject of several judicial decisions, bat we meet with no dis- cussion of it in this volume. The older dicta on the subject are not in harmony with the spirit of later decisions, and it would be highly useful to bring them under review, and to extract from the most authoritative of them the time principle. Still, though we cannot always divine the reasons which induced the author to omit certain portions of his subject, he has no doubt succeeded in stating in two or three hundred pages the main body of criminal law, both statutory and common ; and he has greatly lightened the labours of those whose duty it will be to convert a digest into a code.
To the Digest proper is prefixed an introduction, which is devoted to showing the absurd character of much of our criminal law. It is needless to say that Sir James Stephen has no difficulty in proving and illustrating this. What can be more irrational than a ratio decidendi which involves the punishment as a thief of a person who picks up in the street a £10 note, and who appropriates it, knowing that it belongs to some other person, and that the true owner may perhaps be found, and which dismisses as inno- cent a finder who appropriates a purse, not knowing at the time that the owner could be found, but who, in ten minutes afterwards, discovers the true owner ? What can be more un- satisfactory than the present state of the criminal law of larceny, • A Digest of the Criminal Law (Crimes and Punishments). By Sir James Fitzjamea
Stephen, London: Macmillan and Co.
his depreciation of the style of modern Acts of Parliament. Sir not say that the opposite practice, on the part of legal writers, of the crime. One of the Acts dealing with arson and the burning is true that if Parliament insists upon undertaking the task, of straw was so drawn that it related to straw in stacks only, and or even of closely criticising its details, it would be sure to that a person who wilfully fited straw in a lorry got scot-free. It be indifferently done, and to occupy much time. Our hope is is needless to say that this fragmentary legislation does not that this book will be accepted as one more argument to prove admit of being put into small space, but considering the quality that the preparation of a Digest or Code is not a fit occupation of the material on which Sir James Stephen has had to work, he for a popular Assembly, and that it would be expedient to refer has executed his task with rare success. Let any one consult an it, as the German Reichstag had recently the good-sense to do in ordinary text-book with reference to some vexed question about regard to their Code of Criminal Procedure, to a Commission of larceny, or false pretences, or forgery, and then turn to this experts. The five Consolidation Acts of 1861 have greatly facili- volume,—he will appreciate the great value of the latter. tated the task of a Codification Commission, and when Sir James We think it right to mention certain omissions or defects Stephen completes, as he promises to do, a Digest of the Law of as to matters of fact in the book ; but considering the magni- Criminal Procedure, the final work would probably not exceed trade and proportions of the task, they are not numerous, the powers of half a dozen able and experienced lawyers, who and if we state one or two, it is with the prefatory observation could command, if necessary, the adiice and occasional assistance that they are exceptions. In discussing the question of what is a of the Judges.
" common nuisance," the subject of an indictment, the author cites as an authority the well-known old case of "R. v. Russell" which, he says, " deserves careful study." He does not mention or allude to the weighty and considered opinion of the present Master of the Rolls, expressed as long ago as 1873, that this " case is not law ;" or to the earlier dictum of Lord Denman, that it was "a case the authority of which has been much doubted, and is per- haps likely to be more so as it is farther examined." And not only is the long note on this subject defective; but we are inclined to think that the definition offered in the text of a common nuisance would have been sharper and more precise than it is, had the author con- sulted the "Attorney-General v. Terry," in which the Master of the Rolls propounds one. Sir James Stephen merely states that " the fact that the act complained of facilitates the lawful exercise of their rights by part of the public may show that it is not a nuisance to any of the public." This is a trifle vaguer than is necessary ; the the Common-Law eccentricities of which have been corrected Master of the Rolls has defined " the part of the public," and the Tartly only, and at the expense of its simplicity and homogene- nature of the benefit which will legalise what would otherwise be
onsness ? Or what are we to say.of a law of false pretences so an indictable nuisance. Some of the Articles in the Digest—for in-
onesided in its operation that it would be possible to obtain by false stance, Article 211—are obscure. Sometimes we are struck by a Pretences any amount of growing timber, coal in a mine, or valuable curious omission in the text, which seems to indicate a little haste. fixture without committing any offence at all? What is to be said for Thus we are told that "every person who keeps a disorderly inn, or the law of larceny and embezzlement, which is in such a condition who, being an innkeeper, refuses, without reasonable grounds, to that if a person is convicted under a direction of the Judge to the entertain any person ready and willing to pay for entertainment, effect that embezzlement only has been committed, when in point therein commits a misdemeanour." This omits one of the chief of fact the crime is larceny, the conviction will be quashed, elements of the Common Law ; it does not refer to the fact that though there is an express statutory authority that an indictment the person claiming entertainment must be a wayfarer or traveller. for larceny will sustain a conviction for embezzlement. All Still these slight inaccuracies are not, so far as we have observed, these and other tolerated defects or absurdities Sir James Stephen numerous. - They do not materially affect the utility of the volume ; exposes clearly ; and now that some one has taken the trouble to and in fact there is but one thing which can at all hinder the drag them out of their holes into the light of day, we may fairly book becoming the recognised and universally used work on the hope that Parliament will find time for the much less arduous subject of Criminal Law. It has far too few references. This is work of putting them right. Perhaps the most interesting and valu- a serious drawback to its utility in practice. It is true that the able feature of the Digest is its style. In a Digest or Code, style text does in general accurately and happily express the law ; is everything. Hitherto, legislators have counted it of little con- but lawyers and judges will always like to have the means of sequence. " Acts of Parliament are founded," says our author, verifying the author's view, and they will not be satisfied that '" upon the model of deeds, and both deeds and statutes were they understand the meaning of many statutes until they know originally drawn up under the impression, that it was necessary the construction judicially put upon them. One or two instances the whole should form one sentence." It required an Act of Parlia- will illustrate our meaning. Sir James Stephen gives the meat before a draughtsman could use a full-stop. The wearisome statutory law with respect to fraudulent debtors in a very con- ." whereas," and the superfluous and reiterated " be it enacted," venient form, but he cites very few authorities. He states the law were abolished less than thirty years ago. A few hours' study with respect to bribery, but he does not draw attenbion to any of the tediously-worded statutes of the Georgian era, when bad of the many important decisions given by the Judges since the araughtmanship reached its height, will bewilder the clearest brain. hearing of election petitions has been handed over to them. Many Still, we rather think that Sir James Stephen is a little unfair in pages contain nothing but statutes recast or epitomised. We do Henry Thring and his coadjutors have much improved the style overloading their text with references to cases more or less relevant, of Parliamentary draughtsmanship during the last ten years, and is at all commendable. It is, in fact, far more to be deprecated it would be flattery to say that no Acts are prepared with skill than the sparse citation of authorities. But when there is a real equal to that displayed in this Digest. Take the Act, for example, difficulty in the terms of a statute, ought not the author to state consolidating the law with respect to the management of the those cases which throw light upon it ? Take, for example, the National Debt. It is alike concise and intelligible. It is open to law with respect to night-poaching, and the assaulting of the ser- few of the objections justly urged by Sir James Stephen against vant of a person having a right of free chase or warren ; ought not many Acts, the Criminal Consolidation Acts among others. No the notes to call attention to the fact, by no means obvious or one can help catehingits meaning. Of course, the author of a digest naturally to be expected, that certain Judges decided in of English law cannot give to that law more symmetry and precision " R. v. Price " that the servant of one who had a mere right of than it actually possesses, and owing to the piecemeal manner in shooting over land was not a person authorised to apprehend ? which the statutory part of it has been constructed, a digest must be We have mentioned these blemishes with no feeling that they wanting in these virtues. How can neat general terms be employed, seriously detract from the great value of the book. It is a monument if the Legislature has made a point of passing laws which are of industry and skilful enterprise. It shows what may be quietly confined to the evil immediately present to its eyes? When Sir done for the cause of codification by one energetic person, while William Coventry's nose was slit, the offence of slitting people's hundreds of others are talking aimlessly about its advantages and noses was made a special felony. Because the deer-stealers in bemoaning its absence. Now that we have a tolerably correct Waltham Chase blackened their faces, the Legislature passed an digest, and that Sir James Stephen has done for the nation Act dealing with poaching which was so worded as to make what the nation ought to have done for itself, the produc- blackening one's face almost appear to be a necessary element in tion of a code need not be a work of great difficulty. It
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