"CONSOLIDATION" OF THE STATUTE LAW'. No. IV. CONTEMED.
THESE eight Consolidation Bills (putting out of view all the most important, the primary, elemental, substantial, integral, and introductory matters, relating to Rights and Obligations, theirrealization, enforcement, and remedies) make their start nearly, but not quite, at the end of the course with the most artificial chapter of the whole future code ;—precisely that one which involves the complication of all the other elements, is unintelligible unless these have preceded, and can only be made intelligible by the violent intrusion of antecedent matter that must, on the same plan, be intruded over and over again into chapters, involving it but treated before their due time, and must eventually appear again under its own independent heading. In these bills not only are all the indispensable antecedents ne cessary to the intelligible treatment of Wrongs passed over, but even as to these all the more simple and mild forms of wrong, all the analogous infractions of the law, that present in themselves all the elements of the subject, are passed over ; and we are brought, without preparation, to the task of describing only those extreme, violent, and aggravated kinds of injuries, which are designated as "offences," and are the occasions for the penal form of the intervention of the law.
To understand all the absurdity of this course, and the nature of
the impossibility which it involves, it is necessary to consider the distinction a little closely. All Wrongs are acts of men the commission of which is implicitly and consequentially forbidden in the very terms which create the right or impose the obligation : all acts that do infringe such rights are ipso facto wrongs; and the simple description of any such act constitutes the description of such a wrong ; and the mere description of the right indicates by itself and without more words what the person injured is entitled to by way of remedy, restitution or compensation. But the clam of Offences, the objects of "No. I." in these bills and of "No. II." which are to come in at least eight more bills, is not so simple and natural ; it is wholly artificial and arbitrary, accidental and. dispersed. No wrong is Penal but by the express provision of a Penalty. Of the thousands of acts which have in the English law been made penal, and have again been made dispunishable, all or nearly all of them have been, both before and after their being made occasions of punishment, wrongs, the subjects of appropriate remedies at law, and having their one appropriate place in it. It was only when opinion, prejudice, passion, or a temporary increase in the commissions of the injury, made the existing means of pre vention or remedy insufficient to repress it, that the Legislature imposed a penalty on it ; and when the Legislature did this, the act of wrong, or its definition and classification, or place in the law, was not altered in any possible respect. The act rearming the same, the Legislature perhaps laid a light penalty on it, and the act was then called simply an " Offence light
or it laid a heavier
one on it, and it was then called a "Misdemeanour," or a still heavier one mid it was then called a "Felony,"—no alteration being made by any of these differences of the penalty in the nature or class of the act, which again would remain the same, when all these penalties, as has been done in thousands a instances, were abrogated. For the act of injury is of a nature which it is not in the power of the Legislature to modify: the penalty which it can attach as a consequence to the act, as all the other interventions of the law, is its creature—this it can make little or much, or none at all ; it can make it to be fine, imprisonment, infamy, disability, death, eaoh in a thousand variable shapes, aeeorcling to the power of the executive to inflict pain ; this is at its arbitrium, this it does or does not as it will, this it does most capriciously, or with an unconscious blundering in its effects more anomalous than those of any possible intentional caprice. It is manifest, then, that Penalty is a variable and arbitrary element ; never can serve to define wrongs., acts which are strictly defined by their nature, and unalterable in their nature, or in their class or order of precedence in a code, at the will of the Legislature. We have a nascent example rising before our eyes. Trusts, and Breaches of Trusts, are known to all mankind ; these breaches have lately become more frequent, or come more into notice, but their nature or classification is not changed. They are now to be made punishable—the Lord Chancellor says " Criminal "; there is to be attached to them another legal consequence, a penalty of some kind or other, that the Legislature will select; and if the little breaches of trust, among little people, involving small amounts of value, are chiefly considered, it may be that the penalty will be a small fine, with an alternative of a short imprisonment, to be adjudged by two Justices ; if larger trusts, greater people, and greater values, are chiefly considered, we shall have fine and imprisonment—what the framers of these bills will call a " misdemeanour " will be, as the lawyers say, "created," although the Legislature will have nothing to do with the creation of the act so called ; but if some very great case, involving some hundreds of thousands of pounds sterling, and some very great and interesting victims, be the chief objects of the legislator's sympathies, his bill will _probably early• the penalty further, and the Legislature will thereupon get the credit of " creating a new Felony '—although fortunately it is absolutely innocent of any part in the act, of any such pernicious invention, and is only virtuously engaged in attempting to prevent an act which exists in spite of it, and in apportioning its corrective, the legislator's creature, penalty. Perhaps, if all the different varieties in degree of this one wrong be considered, we may have all these varieties in the degrees of penalty affixed to it. Here is an act, a breach of trust, perfectly definite in its character—its nature and definition unchangeable—its effect and its place as a wrong, in any system of jurisprudence, wholly unchangeable; but today according to the system of these bills, it is in what they will probably designate as the "Civil Law," not in their "first class" of" Criminal Law " : before the end of the session this same injury will probably become an " offence " : if it be visited by a low penalty, to be adjudged summarily, it will, still keeping its place in the "Civil Law," acquire a place in the "Criminal Law" too—but not in these bills, as the offence will not be " indictable " : if it be visited by a higher penalty, to be adjudged with more solemnity, it will come into these bills, as an "indictable offence " : but if, as is likely, and is the ease with hundreds of other'injuries, it be visited with the various degrees of penalty, we shall, on the principle of these " Consolidation " Acts, when the series is completed, have the advantage of seeing the very same breaches of trust treated in four places at the least,— first in the "Common aril Law, Class Tr': secondly, in the " Equity, Class III"; thirdly, in the "Criminal Law, Class I; Breaches of Trust, No. 2, Offences of Summary Jurisdiction"; and fourthly, in the series now before us of "Criminal Law, Class I, Breaches of Trust, No. 1, Indictable Offences."
Such a commencement of" consolidation," with a highly artitidal " class " of objects, the very description of every one of which necessarily involves all the naturally antecedent elements postponed for future treatment, is manifestly only a device for multiplying, dispersing, dislocating, and dissolidating the law. To make any such compound " class " complete as a head or chapter of itself, as is pretended in these bills, to express under such a head what is necessarily involved in its heading, is to express the same elements and antecedents over and over again, out of their proper places as often as similar " classes " are " consolidated," and it is to be supposed once again also in their proper places when their turns come in the confused procession ; thus producing endless repetition if the several " classes " are to be complete and clear, or innumerable chasms if this necessary matter is not repeated. On the plan of these bills, assuming that eventually the matter relating to these "indictable offences" is all to be consolidated, we have only these alternatives—either each " class " must be a mutilated unintelligible fragment, (as all these bills for the most part are,) or, as is the case in other parts of these bills, we must have an accumulation of matter such as has never been imagined before : either all the Rights affected and involved must be treated at least thirteen times, viz. (1) under Obligations ; (2)
Wrongs ; (3) Ministerial Interventions, Solemn, or—(4) Summary ; (5) Remedies, Solemn, or—(6) Summery ; (7) Compensations, Solemn, or—(8) Summery ; (9) Penalties, Solemn, or—(10) Summary; (11) Procedure, Solemn, or—(12) Summary ; and finally (13) as Rights under that denomination and in due place (being first by nature) as "class 13" in the "Consolidation Acts" : and in the same way Obligations will be involved and treated eleven times over before they are treated by themselves, Wrongs ten times, and all the other heads a proportionate number of times ; making on the whole not less than eighty-seven repetitions of the same-matter necessary for completeness and in ibility--or if these be omitted, seventy-four yawning chasms of o scanty.
A beginning at the beginning, a proceeding throughout in the natural order of the matter, would make each head complete of itself, and touch no complicate and consequential matter till its elements and antecedents had been disposed of : they would be complete and clear in about one eighty-seventh part of the words and space requisite to make the " Consolidations " before us com
plete. G. C.
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