THE CRIMINAL CODE.

LETTER IX. (AND LAST.)

I have now gone through the whole of that portion of the Code which is at lire- sent before the public, article by article almost: it will be convenient to take a general review of the alterations which it exhibits upon the present law; in the great majority of which I heartily concur. I have pointed out, in the first place, a number of instances in which the altera- tions suggested appear dictated by a just leniency. Of this nature are the exten- sion of the excuse of duress in certain treasons to the case of" a well-grounded

fear of grievous bodily harm "; the abrogation of the absurd rule of law which makes a man, once engaged in a guilty act, responsible for its every consequence,

however accidental, and responsible in proportion to the gravity of the original offence; the extension of the cases under which wives are exempted from punish- ment for acts done with a view to shelter their husbands from justice; the ex- tenuation of the crime of homicide by consent of the party killed, (when a free agent,) hitherto punished as murder; the mitigation by one degree of the penal. ties for homicide committed in a duel with deadly weapons, where no unfair means are used, and for aiding a suicide,—crimes equally punished as murder under the

present law; the distinction between "extenuated " and "negligent" homicide. I have even ventured to considered as ultra-lenient the negative solution given to the

now vexed question, whether bearing false witness on a capital charge, whereby another suffers death, is or is not murder; and the justifying in certain cases the act of a person engaged in an unlawful conflict, who kills another to save his own life.

Alterations prompted again by a just severity are those whereby the presump- tion of marital coercion arising from the simple presence of the husband, in all offences committed by married women, is taken sway; the omission of all justification for the taking away an innocent life to save one's own; the

ties mfficted for the first time for the abduction of women against their will, al- though not entitled to property. Amongst other improvements, at first sight of a technical character, but which are likely to bear highly beneficial consequences, are the definition of "grievous bodily harm," and the consequent suppression of the vague or antiquated offences of mayhem, disabling, &c. the attempt, not perhaps fully carried out in the sec- tion of other offences against the person," to punish differently in all cases the

inchoate and the partly perpetrated crime. The section "of criminal agency and participation "is Cm spite of blemishes) the most favourable specimen of jthulosophi- cal,,precision which is yet to be found in our English jurisprudence.

he language of the Code manifests, moreover, in general, a considerable im- provement upon the usual tone of English statutes. Terse and accurate defini- tions, and articles of one, two, or three lines, framed with that authoritative

brevity which is so favourably characteristic of the Code NapolOon, are not want- ing. But too often still we find the prevailing lengthiness of our English law- language stretching out the phrase to fifteen or sixteen quarto lines, wherein one or two ideas (ran t nuntes in gurgite vaeto) toss painfully about in a sea of repe- titions, incidental phrases, and parentheses. And I have not hesitated—strengthened in two instances by the weighty au- thority of Mr. Starkie—to condemn the narrowing of the test of criminal respon-

sibility to the bare knowledge of the law by the offender; the dangerous definition of the crime of murder by the absence of justification or extenuation; the uncer- tainty given to the value of the term "malice," hitherto one of the leading ideas of our penal law, and other (as it seems to me) unwise tamperings with received nomenclature, such as the total suppression of the term "manslaughter". most of all, the fatal attempt to implant in England the principle of passive obedience to the mere shadow of the law,—an alteration which as I believe, tends at once to destroy in the citizen the proud sense of self-reliant right, and in the officer of justice the wholesome dread of spontaneous resistance to injustice or oppression. I have equally lamented the omission of all notice of the painful question of infanticide by mothers,—one, I conceive, of most urgent gravity. I have

ventured to suggest in this case a decided mitigation of the law, which now punishes with death all cases of infanticide, and leads to a disguising and

consequent under-punishing of the .crime under the name of "concealment of birth." I have farther suggested, in cases of alleged insanity, the determination not only of the existence but of the degree of criminal responsibility and conse-

quently of punishment, by the force of the delusion acting upon. the offender's

mind: the fixing at a later period the age up to which incapacity to commit crimes by tmripeness of mind should be presumed; a mitigation of the supreme penalty now awarded in all eases of poisoning, and of attempts to murder falling short of their full effect, but by which bodily harm is caused. But were all the specific amendments which I have suggested, together with all those which I have noticed in the work of the Commissioners, to obtain force of law, the whole mass of improvement would not, I am convinced, counterbalance the one evil of de- nying the right of resistance to obviously illegal warrants and excess of authority by officers of justice. I regret also, I repeat it, the narrow grounds upon which the revision of the criminal law appears to have been conducted. A statement of the present law, or where it is yet unsettled, of the discrepancies of opinion amongst judges and text- writers, and occasional references to Continental legislation—more frequent, how- ever, than has hitherto been usual in this emphatically insulate country—seem to compose the whole staple of materials used for the amendment of the law. The delicate questions of physiological and psychological science which lark under the rules of the irresponsibility of madmen and infants—the high problems of social

philosophy involved in the subjects of duelling and infanticide amongst others—

are left unadverted to. The new and important science of Criminal Statistics, by which the whole working of the penal law, subject to the requisite corrections in every particular case, is laid bare in figures, passes equally unnoticed. In spite of the authority given to the Commissioners to examine witnesses on oath, there is not a single living testimony brought forth in support of or against alteration;

not a document furnished by which we can even approximatively subject this new and great work to the test of public opinion, its ultimately sovereign arbiter. So that, in endeavouring to estimate the value of an undertaking which must prove worthless unless it embody the national feeling, we have no further data to go upon than the ipsi dizerunt of five learned lawyers, and the far more limited experience of every individual critic. Were Parliament to deliberate at once upon this first portion of the Code,—a course of proceedings, however, which is deprecated by the Commssioners,—it would have fra7:iert:re slender means of coming to a correct decision than it has had upon a bill to suppress dog-stealing.

I do not hope to escape the reproach of presumption in my observations upon the work of the Commissioners—a reproach which nevertheless I am not conscious of deserving—for expressing sincerely what I have truly felt. It is of the very essence of a criminal code that it should excite, if not invite, criticism from all parts and ranks of the community, from the commonest and from the most learned minds. In the struggle for a maintenance—in the pursuit of wealth—amid the hubbub of politics—we often forget how nearly the criminal law touches every one of us. Millions may live and die without requiring any farther knowledge of the civil law than that which secures to them the possession of a few chattels, the recovery of a few debts of low amount, or which regulates by a positive sanction those relations of parent and child, husband and wife, &c., which certain floating notions of natural law or the precepts of the Bible teach already more or less perfectly. And even in these cases, the law is perhaps best known by the penalty which attends the violation of it. The civil law is therefore naturally of a more artificial, or at least more technical character, than the criminal. It is not called to accouut step by step by individual conscience; its imperfections, though working perhaps to greater depths, do not react so immediately, so gla- ringly, upon the wellbeing of the community. Thus, the law of Entail affects preemmently in the first instance but a very small portion of society; in the second degree, the fifty thousand landowners of the country; in the third, the creditors and dependents of those landowners: its action upon the nation at large can only be tested by long experience, comparison with the legislation of other countries, and a habit of generalization which already denotes some intellectual culture.

But the law of Murder and Attempts to murder does not in like manner affect preeminently a particular class of the community. It is but an accident that the number of murderers or of victims is limited; the sword cf crime and that of justice, though unfelt in ordinary cases, hang suspended equally over the head of every one. And were an act of Parliament passed tomorrow abolishing all penal- ties for murder, the maniac in his phrensy would be the only individual who would not feel it as a direct infringement of his personal security. Thus, there is no one of the poorest and lowest individuals in the state who is not concerned with the whole doctrine of Offences against the Person, their de- tection and punishment. There is not one who is not concerned with at least the elementary notions of the law of Offences against Property, as respects his indivi- dual interests; if indeed the constant contact of the rights of property in others, under all their most delicate and refined modifications, did not, in a country of high civilization like our own, render that whole doctrine of practical importance to him. There is none who does not sometimes receive money, and is not therefore concerned with the doctrine of Offences against the Currency. There is none who may not come in contact with factious partisans or plotters, or find himself involved in some occasional tumult, so as to feel the operation of the law of Treason, Sedi- tion, Riot, &c. With the spread of education, there are ever fewer and fewer persons who may not find it their interest to be acquainted with the law relating to the different offences of which writing forms a component or essential part— Libel, Forgery, Threatening Notices, &c. Again, particular classes of offences- e.g. Malicious Offences against Property in general—poaching, destroying of fish- ponds, hop-poles, growing crops. &c.—or, again, Wrecking—bear chiefly upon par- ticular classes of the community, who are not otherwise called upon for the exhibition of much intellectual acuteness.

It is this universal action and importance of the criminal law which constitute at once the justification of its critics and the difficulty of its framers. It interests every one, and therefore must be planned for the benefit of all; it interests every

one, and therefore every one has the right, if indeed he is not in duty bound, to see to its perfection. It is thus that we are entitled to demand of the authors of

a criminal code a strict and searching account of their labours; the largest views and the most accurate observations; diffidence before innovation when unsanc- tioned by the existence of recognized evil, and where such evils exist, the most radical perseverance in attempting to redress them; and lastly, a fall forethought as to the consequences of any alteration. Let it be observed, moreover, that this is the first European example of codifi- cation in a free country; and that therefore the tests which might be sufficient when applied to the discussion of the Code Napoleon by the Conseil d'Etat, or to the closet deliberations of a few German jurists, become wholly inadequate with respect to a work which, whether before, or during, or after its enactment, will -have to run the gauntlet of a free press, of free popular assemblies, of free discus- sion everywhere. Aphilosophical code is perhaps the utmost that can be required of the former class of lawmakers: a practical, all-satisfying code, is what is de- manded in England, if we want it tobe more permanent than the Penelope's web of year-to-year legislation. It is therefore essential that criticism should be not only free, but early; so that the code-framers themselves may if possible be their code-correctors, that public opinion may not be compelled to resort to the dice- box of a Parliamentary division, that amendments may not be thrust in during the progress of the code through Parliament—either useful, but inconsistent, and logically entailing alterations which will be perceived too late, or both inconsistent and mischievous.

And if I have animadverted somewhat severely upon what seem to me the defects of the Code,—especially when, under the colour of correction, it in fact subverts some of the wholesomest principles of our existing legislation,—I am willing and proud to admit, that even in its present state, as compared with the labours of Continental jurists, it would hold not only a respectable but a high place in the annals of codification. The Bavarian Code, painfully elaborated as the Fourth Report of the First Criminal Law Commissioners shows it to have been, is generally considered the most perfect existing sample of philosophical legislation. But I believe, no Englishman at least, who will take the trouble to compare the Bavarian with the English Code, will hesitate to award the palm to the latter; not for subtilty of distinctions, searching completeness of purpose, and scientific symmetry, but for general good sense and humanity of intention. And of the practical working of die Bavarian Code,—oscillating as it does perpetually from the horrible to the ludicrous, from the tedious to the theatrical,—Lady Duff Gordon's translation of Fenerbach's Remarkabk Criminal Trials has given the English reader a specimen. Indeed, if I have ventured to suggest considerations overlooked, amendments to be introduced, shortcomings and imperfections, I well know that it is to the Code itself—to the laborious condensation of the confused mass of the present law—to the facilities thereby afforded for scanning the frame and proportions, so to speak, of our criminal jurisprudence--that I owe both the opportunity and the means of criticism. It is like a road hewn through a virgin forest, of which, when once opened, common passers-by may note that this turning seems too sharp, that cutting insecure, that level ill-drained, or even that by yonder water- course, or along the brow of yonder range of hills, an easier or a shorter line might have been traced; though when all was yet a tangled wilderness, they would have been incapable of devising where to break ground. And besides, where I am right in my criticisms, it can but tend to the improvement of a great national work, in which we must all take pride; where I am wrong, I do but ex- pose my own ignorance or my own folly. .There remains for me, Sir, to express my sense of the kindness and liberality with which you have opened your columns to the discussion of topics that he somewhat out of the high roads of our common thought, and to sign myself once more,