'SIR JAMES STEPHEN'S HISTORY OF THE CRIMINAL LAW OF ENGLAND.*
[SECOND NOTICE.] tSra JAMES STEPHEN'S work has a twofold aspect. It constitutes an important addition to our knowledge of English history ; it also consists of a series of disquisitions on moral and logical problems suggested by the study of law. Our aim to-day is to consider the book not as a narrative, but as a treatise on criminal jurisprudence. Of its interest, when looked at from this point of view, candid critics can hardly speak too highly ; but a reviewer who tries to imitate Sir James Stephen's own outspokenness and honesty must, out of the very respect due to an eminent writer, state freely that the book contains a large number of positions which are meant to excite—as, no doubt, they will excite—criticism and opposition. On this matter, we need not confine ourselves to prediction. Lord Coleridge has already questioned from the Bench one at least among the numerous hard doctrines propounded by Mr. Justice Stephen. It is certainly not our business to pronounce any opinion upon the point at issue between the Lord Chief Justice and his colleague. The differences, however, of eminent magistrates, as of respected divines, have at least the advantage of restoring to humbler individuals a perfect freedom of judgment which is untrammelled by excessive deference for legal or theological authority. The rapidity, moreover, with which Sir James Stephen's views have.evoked contradiction calls attention to a characteristic which marks the whole body of his already voluminous and always instructive writings. Narrative in his hands always turns into discussion, with him discussion always means controversy, and controversy means a vigorous onslaught upon the errors of sentimentalists, humanitarians, admirers of popular government, and numerous other classes of persons who maintain, or are held by Mr. Justice Stephen to maintain, fallacies, errors, or follies, which it is his mission utterly to rout, confound, and destroy. We have ourselves considerable sympathy with the polemical spirit of Mr. Justice Stephen's controversial writings, but it may perhaps be
• doubted whether his manly pugnacity, and the strength of feeling which lies at the bottom of his combativeness, is compatible with the scientific calmness necessary for the complete solution of the problems presented by legal s3ience. With much of Sir James Stephen's sentiment, all sensible readezs will agree. "It does one's heart good" (as the expression goes) to hear murderers described as the villains, scoundrels, liars, sneaks, and generally contemptible persons, which . they invariably turn out to be, on close acquaintance with their characters. But though there is a real pleasure in seeing gallows-birds stripped of their false claim to sympathy, it is impossible for thoughtful readers not to remember that the attitude of a denunciatory moralist is different from the position of a scientific investigator; a student of crime has no more reason to be angered at murder or murderers, than a student of disease to be filled with wrath at the contemplation of fever or of smallpox..
We dwell on the element of personal sentiment discernible in our author's speculations, because, while it adds to their popular interest, it detracts a little from their juristic value, and occasionally affects even the logical worth of conclusions drawn by a trained and acute logician. Of all the sentiments obviously entertained by Mr. Justice Stephen, few are more respectable and, in their way, more useful than the bias of his mind against popular, and what is pretty much the same thing, lax and inaccurate modes of thought or of feeling. It is, however, quite possible for a thinker to be too much on his guard against the idols of the market-place, and it is still more possible for a trained logician to assume that notions which are inaccurately expressed in the current language of
* A History of the Criminal Law of England. By Sir James Fitzjamea Stephen, K.0.8.1., D.O.L., a Judge of the High Court of Justice, Queen's Bench Division. London : Macmillan and Co. mankind are themselves inaccurate and worthless. The Flutarchian hero—Phocion, if our memory does not deceive us— who, whenever his speeches were applauded, asked what folly he had uttered, was not, after all, more successful as a statesman than as an orator. And a writer who is determined never to be the victim of fallacies which pass current with the crowd, is liable to miss truths which are none the less important because they are expressed in lax terms and defended by inconclusive reasoning. No better illustration of our meaning can be found than Sir James Stephen's treatment of the question of intention. Every word he writes on the matter is worth the most careful consideration. No one, whether he agrees with all our author's conclusions or not, can read the dissertation about intention and motive without feeling that the subject is one on which popular conceptions are so hazy and indefinite as often to amount to misconceptions which cause profound moral confusion. It is well every one should be warned in the clearest terms against that identification of motive with intention which fosters the pernicious idea that a man cannot rightly be punished for acts, however criminal, which have been done with a laudable object, or even with an object which he may reasonably think laudable. It is high time for conspirators to be told that murders committed by patriots are just as much murders as murders committed by highwaymen or burglars. But when Sir James Stephen, not content with noting the confusion between motive and intention, goes on, apparently, to assert that the "supposition that the presence of an ulterior intention takes away the primary immediate intention" is a fallacy, cautious pupils feel that thcir teacher is getting on to shaky ground, and that a statement which is in one sense a truism may be so used as to cover very startling inferences. This suspicion is increased when we find what is the practical conclusion to which Mr. Justice Stephen's doctrine leads him, in reference to the well-known case of "H. v. Woodburne, 16 State Trials, 54." In this instance, one Coke was tried, under the so-called Coventry Act, for wounding Crispe, "with intent to maim and disfigure him." The "intent," be it noted, was, under the statute, part of the crime. What Coke did was to attempt. to murder Crispe, and in carrying out the attempted murder, he maimed and disfigured his victim. His object, and, as we should say, his intent, was to murder Crispe, and he was utterly indifferent as to whether, in the course of the murder, Crispe was disfigured or not. At the time when Coke was tried, an attempt to murder was only a common-law misdemeanour. The curious result followed that if the prisoner could be rightly convicted of wounding "with intent to maim and disfigure" Crispe, he could be punished far more severely than on conviction for what would popularly be called his real offence. Coke, who was a lawyer, defended himself on the ground that his acts did not bring him within the statute under which he was tried, since he intended Crispe to be killed, and not that he should be disfigured. Coke was, however, in accordance with the charge of Lord Chief Justice King, found guilty of wounding Crispe with intent to maim and disfigure, and was in due course hanged. Mr. Justice Stephen maintains, as we understand him, that in logic and in law Coke's conviction was right. Laymen would, we suspect, be of opinion that though Coke well deserved his fate, he was executed for a crime which he had never committed, because he could not be adequately punished for his real offence; in other words, that by a monstrous straining of the law, a bad man was judicially murdered. And we are strongly inclined to hold that in this case the view of a layman would be logically and legally right.
It is, of course, true that the motive or even the object with which a man does a criminal act does not, in most cases, affect his criminality. Suppose that each of the men who killed Lord Frederick Cavendish had a different motive or object. The one wished to promote the independence of Ireland, the second revenged a private wrong, the third did not care to kill Lord Frederick Cavendish at all, and only desired to disable a friend who might have saved Mr. Burke. None of these differences in the objects, motive, or intent of the criminals prevented each and all of them from being guilty of murder. So far, we entirely go with Mr. Justice Stephen. But to the general rule that the intention or object of a crime makes no difference in its criminality must be introduced the exception that the law may make the character of an action depend upon the "intent," or, to use plain language, the "object" with which it is done. "R. v. Woodburne" comes precisely within.
this exceptional instance. The offence at which the Coventry Act was aimed was a peculiar crime,—namely, wounding with intent to maim and disfigure, or (in popular language) wounding a man for the purpose of maiming and disfiguring him. Now, Coke's purpose was not to maim, but to kill an enemy. No doubt, the mode in which he attacked Crispe did involve incidentally the infliction of wounds which disfigured Crispe. But this was not the object or intention of the attack, and the assault, therefore, did not fall within the meaning of the statute under which Coke suffered death. That this is the right legal view of the matter may be maintained with the more confidence because, as our author himself points out, there is judicial authority distinctly opposed to his view of the law. "Williams' Case, 1 Leach, 529," was decided under a different Act, but involves precisely the same considerations as "H. v. Woodburne." Rbenwick Williams was the socalled "Monster," who a little less than a century ago used to go about stabbing any woman whom be had an opportunity of assaulting. On January 18th, 1790, he stabbed one Anne Porter. He was indicted not for his real offence, but under 6 George I., c. 23, for the special crime of assaulting a person with intent to tear his clothes. His real crime was a murderous assault, the offence charged against him was tearing Miss Porter's petticoats. The judges, not, be it remarked, a single judge, held that the indictment would not lie. This conclusion was, it is true, rested on several grounds, but the majority of the Bench were of opinion that "the case, as proved, is not substantially within the meaning of the Act of Parliament. This statute was passed upon a particular and extraordinary occasion. Upon the introduction of Indian fashions into this country, the silk weavers made it a practice to tear and destroy the clothes which were of a different commodity from that which they wove ; and to prevent this practice the statute of 6 George I., c. 23, was made. To bring a ease, therefore, within this statute, the primary intention must be the tearing of the clothes ; whereas, in the present case, the primary intention of the prisoner appears to have been the wounding of the person of the prosecutrix." This is sound law, and in spite of Mr. Justice Stephen's ingenious line of argument, we venture to assert that it is also sound sense and good logic. If a decision resting on the principle involved in "H. v. Woodburne " could stand, which, in the face of "Williams' Case," we maintain it could not, there would be no guarantee whatever against enactments passed to punish a definite offence being construed so as to cover acts of a totally different character.
We have gone at length into Mr. Justice Stephen's doctrine as to intention, because it happens to present a point of interest which admits of being definitely dealt with within a limited space, and also because it affords a specimen of the sort of bias against popular opinion which, to a certain extent, colours many of his theories. It may, for example, be doubted whether this bias is not discernible in the treatment of what it must be admitted are, from any point of view, the very difficult questions raised by any attempt to define the law relating to libel, to treason, or to blasphemy. But it would be the height, not only of injustice, but of stupidity to treat what seem to us the occasional flaws in Mr. Justice Stephen's mode of argument, or, perhaps, rather in his turn of thought, as if they were in any sense fair specimens of his work. Whoever wishes to see how much our author can do towards clearing up a subject about which lawyers, no less than laymen, are apt to entertain very confused ideas, he should read the few pages which treat of the nature of property, and -which impress on the reader the constantly forgotten fact that property consists not of things, but of rights, though, by an unfortunate ambiguity of language, the word is constantly used to designate the things with which certain classes of rights are associated. It would have been a gain if Sir James Stephen had pressed his analysis a step further, and had pointed out that the common characteristic of the rights which make up property is the fact that they may legally be dealt with as objects of sale, or, to use slightly different language, are legally capable of having a money value. Though one may regret that this fact was not pointed out to the reader, it is hardly possible to rate too highly the service rendered to legal science by a writer who dispels a great part of the confusion and mystery which in ordinary English lawbooks obscures the whole _topic of ownership. If, again, a critic wishes to see how ably Sir James Stephen can, when he brings his whole mind to a subject, discuss a most difficult problem, in
which legal, moral, and medical considerations are curiously mixed together, he should read and ponder over the chapter on the relation of madness to crime. It is plain that the learned. Judge has studied the matter from every point of view, and the careful thought which he has given to a difficulty has prevented him from falling into the temptation, which besets every lawyer who writes about madness, of becoming so indignant at the pretentious fallacies often propounded by so-called maddoctors as to believe that no attention ought to be paid to the medical aspect of lunacy. The result is that with the law as propounded by Sir James Stephen, no moralist of ordinary judgment and no physician endowed with common-sense need quarrel. The only question which may fairly be raised is how far Sir James Stephen's exposition may not be called rather a judicial amendment of the law, than a statement of the rules intended to be laid down by the different judges who, under one form or another, have stated and, in fact, have made the law as to thecriminal effect of lunacy. A careful perusal of his account of the relation of madness to crime leaves on our own minds the impression that the earlier Judges took a very narrow view of the nature of lunacy, and that the celebrated answers given by the Bench to the inquiries submitted to them in McNaghten'a case rested on imperfect knowledge of the phenomena
presented by mental disease. It is, however, apparent that if, even so late as 1843, the law as to the connection, between madness and responsibility was, in effect, create& by men who knew much more about law than they did about lunacy, the Judges have, like less able persons, modified their views, under the influence of increasing know-ledge. The law, in short, as understood and enforced by the members of the High Court of Justice, consists of rules as sensible and fair as can be framed under the present condition of medical and moral science, but it is not exactly the law which. existed in 1843.
Here, however, we touch upon a topic far too interesting and intricate to be dealt with at the end of an article, namely, the nature and limits of that judicial legislation which is the source of the greater and by far the best part of the Lawof England. Three remarks, however, on the subject, suggested by the study of the History of the Criminal Law of England, are worth making. The first is that judicial legislation has not only been tolerated, but has, on the whole, met with popular approval, because Judge-made law is, in many respects, superior to the Statutes, which are the fruit of Parliamentary fussiness, ignorance, and partisanship. The second is that half the defects of judicial legislation are due to this, that. Judges, failing to recognise the fact that they constantly act au legislators, and that it therefore may well be doubted whether one mode of improving the law would not be to recognise openly, and rather to increase than diminish, the legislative authority of the. Bench. The third remark is that writers like Sir James Stephen, who are in search of fixed and definite rules, underrate the flexibility and expansiveness of judicial legislation. Whether these qualities are virtues or vices is fairly open to discussion.. What cannot be fairly disputed is that the so-called principles established by the decisions of the Courts are rules which have nothing like the fixity of statutory enactments. If you wish to know how a given case will be decided, or in other words, if you wish to ascertain what is the law on a given topic, you must, if the matter depends on reported cases, look rather to the' tendency of the decisions, than to the absolute rules which they establish. Williams' case overrules or repeals "R. v. Woodburne." An expression such as the dogma that "Christianity" or "hereditary monarchy" is "part of the law of the land," hasa different sense in the month of Lord Justice Coleridge from the sense which it had in the mouth of Coke, or even of Mansfield. The legislation of the Courts gives, like other legislation, expression to the changing sentiments, principles, and beliefs of each succeeding age. This point needs to be pressed home, because a logician and a codifier such as Sir James Stephen almost of necessity tends to impress upon his readers an idea that cases' which show the direction in which judicial legislation moves, can be taken as embodying principles or rules as strict as those to be found in the Statute-book. This notion is to a certain extent erroneous. But readers who wish either to increase their knowledge of English law, or to study most interesting applications of logic to the actual affairs of real life, can take no wiser course than to try to determine for themselves what is the nature of Judge-made law by a careful perusal of the History of the Criminal Law of England. It is very rarely
that laymen have an opportunity of studying an account of a whole province of law, written in English which every man of education can understand, by a writer who is at once an eminent judge and a trained jurist.
Previous page
