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ART. V.-A Letter to the Lord Chancellor, containing Obser
vations on the Answers of the Judges to the Lord Chancellor's Letter on the Criminal Law Bills of the last Session of Parliament. By C. P. Greaves, Esq., Q.C., and J. J. Lonsdale, Esq., Barrister at Law (Secretary to the late Criminal Law Com
mission). London. 1854. THE very important subject of a Digest of the Criminal Law has
for the last twenty years occupied much of the attention both of the legal profession and of the public at large. A commission of eminent lawyers was employed in preparing that Digest ; among others Mr. Justice Wightman ; Sir Edward Ryan, Chief Justice of Bengal, and author of valuable reports of Crown Law Cases ; Mr. Starkie, whose well-known works on Criminal Jurisprudence are in the hands of all lawyers ; Professor Amos, long employed on the Indian Code, and now Downing Professor of Law at Cambridge. The result of their labours was fully approved by successive Chancellors, Lords Lyndhurst, Brougham, Cottenham, St. Leonards, and Cranworth, as well as by the Lord Chief Justices Denman and Campbell. Bills founded
it were three times sanctioned by the House of Lords, and referred to the examination of select Committees ; namely, Lord Brougham's Bills of 1845 and 1848, and Lord St. Leonards' of 1853, when, with Lord Lyndhurst's approval, it was resolved to divide the Digest and pass it in parts. The last of those Committees sat upon the latest of those Bills,--a Digest of the Law respecting offences against the person--for twelve days, and was attended by all the Law Lords, as well as Messrs. Lonsdale (Secretary of the Commission) and Mr. Greaves, Queen's Counsel and an eminent practitioner in Courts of Criminal Jurisdiction. The larger part of the provisions were discussed with great care, and the Bill was reported to the House as revised and amended. It was there unanimously resolved that as the Lord Chief Justice had been absent on the Circuit during part of the sitting of the Committee, and as one or two important points had been deferred, the further proceeding should be postponed for the present, and he as well as the other Law Lords expressed their confident expectation that early in the next Session it might be successfully carried through (together with the other parts of the Digest), so as to pass both Houses. But it was agreed that the opinions of the Judges should in the mean time be requested upon the details of the Bill reported; and the Lord Chancellor undertook to be the medium of communication. His Lordship, instead of this, referred the whole matter to
those learned persons, not only asking their observations on the frame of the clauses, but desiring their opinion upon the general subject of a criminal law digest, in favour of which the House of Lords had pronounced three several times—in 1848, 1849, and 1853. It is obvious that it must be below the dignity and contrary to the practice of Parliament to consult any body of men, however eminent, as to whether it had wisely exercised its legislative functions in solemnly affirming the principle of a pending
But as the details are not settled in the House till after the second reading, and as this stage had not been entered upon, it would have been regular and constitutional to invite the comments of the Judges upon the special provisions of the Bill. These learned functionaries were favourable to a digest of the statute, but strongly opposed to the codification of the common or unwritten law. Their objections were stated in their answers to the Chancellor's letter, and are mainly grounded upon the errors which they have pointed out in the work of the Commissioners in the revised form in which it came forth from the Lords' Committee. If (they argue) a digest framed by such men as the Commissioners and the Committee is so full of errors, the forming of any digest must be hopeless, and codification impossible. Under these circumstances the learned gentlemen who had assisted the Lords' Committee, addressed to the Lord Chancellor the letter of which the title stands at the head of this article.
It was thought more regular by the Lord Chancellor only to present to the House the answers of the Judges, and have them referred to the select Committee which will be appointed again to consider the Digest Bill ; but his Lordship refused to produce the letter of the learned counsel, though he promised that it should be laid before the same committee. As this committee could not meet for many weeks, the public and the profession had only one side of the question before them during this important interval. Therefore no one can complain of the present publication, which has, it is understood, been fully permitted by his Lordship.
It is not our intention to give anything like an abstract of the work before us. They who take an interest in the great question of codification will of course read both the statements made by the learned Judges, and the full and detailed answers or explanations given in this pamphlet.
One thing seems certain, that the Judges were called upon to examine a Bill consisting of 169 clauses, and a schedule repealing in whole or in part 15 statutes, at the busiest season of the
year, Michaelmas Terin—for although the Chancellor's first letter was in October, the residue of their long vacation was sure not
to be devoted to this extra work, and the second letter was in December. It is a hard thing indeed to call upon judges at such a season, perhaps at any season, to depart from their province of applying the law, and give their opinion upon the details of a measure for altering or consolidating it; and it is probably not a good thing for the law itself that this confusion of functions should be attempted. But, whatever doubt may be entertained on this point, there can be no doubt at all that the remarks of those learned, able, and experienced persons are entitled to the most respectful attention, and that all must examine them not only with a great bias in their favour, but with every disposition to find their criticisms well founded. It is with such an inclination that every candid reader will peruse the answers of the Judges; and with a proportionable reluctance will he find himself under the necessity of agreeing with the authors of the reply, even although they are defending the work of very learned and accurate men, and the provisions sanctioned by the high authority of the Lords' House of Parliament.
No doubt it must strike every one who considers this matter as à priori eminently improbable that a work so elaborately framed, and which had undergone, and repeatedly undergone, such careful revision by so many minds, of such various descriptions, should be found to contain the multiplicity of errors, not a few of a glaring kind, which some of the Judges have, in the unavoidable hurry of business, thought that they had detected. What increases the presumption against the validity of the objections is that while the very eminent lawyers who considered the measure in the House of Lords sat together, and had the advantage of all the knowledge which each could furnish, the Judges only went through the Bill in their individual capacities, and returned separate answers. That some slips might have occurred even with such men as the Commissioners, and escaped detection by all the Law Lords of the Committee, was no doubt possible ; but that the Digest thus prepared and thus revised should abound with the most palpable mistakes-nay, that any considerable number of those should have found their way into it-must on all hands be regarded as in the highest degree unlikely.
The work now before us converts the likelihood into a certainty. It appears that in most of the instances the error exists not in the Digest of the Lords but in the remarks of the Judges. Some criminal lawyers of eminence, we understand, have examined the answers of the Judges and the explanations of the Assessors to the Lords' Committee, and have declared that in almost every instance the remarks of the Judges have been VOL. XCIV. NO. CLXXXVIII.
satisfactorily answered. We will not go so far as this; we conceive that the learned Judges have very probably detected material errors; we doubt not that their remarks will meet with the most respectful attention from the Lords' Committee to which they are referred; but we hesitate not to affirm that the objections of most importance have been met, and that due attention bestowed
the work submitted to their consideration would probably have prevented nearly the whole of their criticisms.
We shall give one example as sufficing to show how plain it is that the ceremony of reading any work under review (we speak with some nervous feeling as reviewers), which should be gone through by those who assume the office of criticising it, has in this case been omitted by the learned Judges in many instances.—Three of them object to the Digest that it does not punish a battery. Unless I am greatly mistaken,' says one, man knocks another down, doing him no bodily harm, he will not be liable to prosecution or punishment;' and his Lordship refers to Sec. 133. “It is at least doubtful, says another learned Judge, whether he could be punished.' And he adds, the Sec. (133) does not in express terms include a battery, however violent, and there is no section, I believe, that does' Such expressions plainly show that their Lordships were conscious of not having fully examined the enactments-and no more had they --for Sec. 127 does include a battery, though not by name; and it clearly comprehends the case of knocking a man down, even supposing it possible this operation could be performed without doing him any bodily harm; for it applies to any one who causes bodily harm
violence to the person of another. • It seems,' say the authors of this tract (p. 62), “to have escaped the recollection of the learned Judges, that no battery can possibly take place unless an assault, as defined by Sec. 133, has taken place:' and again (ib.), ‘one of the learned Judges has fallen into the error of supposing that an assault, in legal signification, includes a battery.'
Sometimes the learned Judges object to provisions as superfluous from not adverting to cases actually reported, and very recently, which prove those provisions to be necessary; sometimes they treat as absurd definitions which such cases have in terms sanctioned. Thus, Mr. Justice Talfourd, than whom,' say the authors of the Letter most justly, 'a more sincere lover of truth, right, and justice never adorned the bar, nor graced the bench,' ridicules the definition of wound' by mention of the skin being divided either externally or internally,' remarking that
the latter branch of the alternative denoting a possibility of wounding by dividing the internal cuticle without dividing the
external, 2 н2
external, must be intended to anticipate some future discovery of science.' But so far from being dependant on a future discovery, the words were introduced in consequence of an antecedent fact, it having been expressly held in the case of Reg. v. Smith, 8 Car. and Payne, 173, that a wound was within the statute where the skin was broken internally but not externally.' The same learned judge dwells at some length on the “introduction for the first time of the term excuse into the criminal law,' adding that, though new, it is not good, arguing that what is termed excuse must mean defence, and further complaining of the bad grammar as well as bad legislation which makes the Act excuse when only the Crown can do so. We must confess that in the impartiality which we really feel in this great question, nothing can seem more triumphant than the answer given by the tract before us to all these charges. Four chapters of Lord Hale are cited (Hale, c. 5, c. 6, c. 7, c. 8), in all which 'excuse' is the technical term used, and used grammatically in the same way the Digest uses it. Thus, c. 5, concerning casualty-how far it excuseth in criminals. Then as to the law only justifying or condemning, and never excusing ;' excusable homicide is an instance to the contrary. And when the same learned judge, observing upon the expression present fear, asks, 'how can fear exist unless it be present?' he has entirely forgotten that present fear of death' is the term used in the books.
Thus, too, Mr. Justice Erle regards it as absurd to consider that a party acting with good motives under a mistake of his legal rights, and causing damage, can act maliciously-yet the absurdity is in the law as laid down by the most eminent judges --for Mr. Justice Littledale, in Macpherson v. Daniel, 10 B. and C., 272, defined malice in its legal sense to denote 'a wrongful act done intentionally without just cause or excuse;' and other judges have held exactly the same language, -Rex v. Harvey, 2 B. and C., 268. In fact, as Mr. Justice Best remarked in the latter
case, the legal import of the term differs from its acceptation in common conversation.'
The work before us adduces several such examples of oversight, but we only give a few instances to show the consequences which flow from having imposed on the learned Judges the task of examining the numerous enactments of the Bill when otherwise occupied with their ordinary and proper duties. The instances, beside the one we first mentioned, are numerous in which they ask why provision is not made for cases connected with one clause, and yet the tract before us refers to some other clause where that provision is made. But instances even occur where they complain of that as the enactment of the Digest