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On the 13th July, 1849, the Commissioners made a report on Procedure, and this was their last work.
From the time when Sir R. Peel began the consolidation of the Criminal Law till the issuing of the first Commission, there had been a succession of Acts relating to that subject passed almost every year ; but after the Commissioners began their labours this course of legislation ceased, no doubt in order to await the results of their investigations. However, during the continuance of these Commissions, sundry Acts relating to criminal matters were passed, most of which either owed their origin to, or were prepared by, the Commissioners. Of these, the Prisoners' Counsel Act, 6 & 7 Will. 4, c. 114, may be entitled to the highest place; then there were the six Victoria statutes, 1 Vict. c. 85, relating to offences against the person;
1 Vict. c. 86, relating to burglary; 1 Vict. C. 87, relating to robbery ; 1 Vict. c. 88, relating to piracy ; 1 Vict. c. 89, relating to arson; and 1 Vict. c. 90, relating to the punishment of sundry offences; and, perhaps, some others.
In 1850, Lord Campbell, then C. J. of the Queen's Bench, placed in my hands a bill, which ultimately became the 14 & 15 Vict. c. 100. This bill originated with the Home Office, and contained, when I received it, some halfdozen clauses ; I made many alterations in these clauses and added many others, and the bill passed the House of Lords; but, in a Committee of the whole House of Commons, it was so completely spoilt, that I recommended that it should be withdrawn, and that course was adopted. The bill was reconsidered, amended, and introduced the next session, and passed, after having gone through a Select Committee in the House of Commons.
In the same session (1851) the 14 & 15 Vict. c. 19, passed. By Lord Campbell's desire, I had obtained the original of this bill from the Home Office. I re-wrote it, and added many clauses to it. This Act was framed to meet particular offences, which were prevalent at the time it passed.
In the autumn of 1852, Mr. Lonsdale and myself were directed by Lord St.Leonards, then Chancellor, to prepare bills for the codification of the Criminal Law. The directions we received were specific. We were directed to prepare each bill from the Reports of the Criminal Law Commissioners, and each bill was to incorporate both the Statute and Common Law relating to the offences contained in it. The duty imposed on us was to reconsider the clauses framed by the Criminal Law Commissioners, and to amend every defect which we discovered in them, and to make the bills as perfect as we could. We were directed to prepare the Offences against the Person Bill in the first instance. From first to last, it never fell to my lot to be consulted in any way as to the course to be adopted in framing the bills, or the order in which they should be prepared.
According to these instructions, the Offences against the Person Bill was prepared, and afterwards introduced by Lord St. Leonards, and referred to a Select Committee, consisting of Lords Lyndhurst, Brougham, Campbell, Cranworth, Truro, Overstone, Wrottesley, and some other noble Lords, with Lord St. Leonards in the chair. That Committee sat eleven mornings on that bill, and had not completed their labours on it when Parliament separated in the summer of 1853. They had, however, gone through the bill once; and although they had postponed sundry clauses for further consideration, they had fully considered and approved of sundry amendments of the law which had been introduced in the bill, and had disapproved of a schedule containing a class of punishments, which were referred to by a number at the end of each clause, and had directed the punishments to be placed at the end of each clause in the usual manner.
In the early part of 1853, Lord Derby's government had gone out, and Lord Cranworth had succeeded Lord
St. Leonards as Chancellor; and he had directed Mr. Lonsdale and myself to proceed with the preparation of bills upon the same principle as Lord St. Leonards had laid down; and, accordingly, we had prepared a Larceny Bill in the spring of that year.
At the last meeting of the Lords' Committee in the summer of 1853, the Committee intimated that the course adopted should be proceeded with as expeditiously as possible, and Lord Campbell wished the whole code to be prepared before the next meeting of Parliament; accordingly bills for burglary, malicious injuries, forgery, piracy, coin, public peace, and trade and commerce, were prepared by Mr. Lonsdale and myself before February, 1854. In preparing all these bills, the Reports of the Criminal Law Commissioners were constantly referred to, and every amendment suggested in those reports which appeared practical and beneficial was inserted in these bills. And I cannot help observing in passing, that the Reports of the Criminal Law Commissioners contain a vast mass of most valuable information, together with many observations on the different parts of the Criminal Law, which are well deserving of consideration by any one who may turn his attention to the improvement of that branch of the law.
In the autumn of 1853, copies of the Offences against the Person Bill and the Larceny Bill were sent to the Judges, and on the 9th of February, 1854, their answers were ordered by the House of Lords to be printed. On the 7th of March following, the replies of Mr. Lonsdale and myself were published, and were afterwards ordered by the House of Lords to be printed. It would be quite beside the purpose of this Introduction to enter into any consideration of any of the points discussed in those papers. It is enough to say that the bills of 1853, and those prepared afterwards, were not introduced in 1854, and the attempt to codify the Criminal Law was abandoned.
To my mind it is plain that a code of the Criminal Law, embodying the unwritten as well as the written law, can be framed; for I cannot imagine any proposition of law which the mind can clearly apprehend, that may not with due care be reduced into writing; the task is no doubt an extremely difficult one, requiring the perfect concentration of the mind on the subject, and the use of the plainest and clearest language. But it is a very different question, whether such a code could ever be passed through Parliament; and my strong impression is, that it never could be so passed. Neither House of Parliament would adopt bills prepared on such a principle without examination; and though possibly the House of Lords might pass such a bill uninjured, it is perfectly hopeless to suppose that the House of Commons would do the same; and, as the success of such bills would entirely depend on the accuracy of their language, it is highly probable that the alterations made in the House of Commons would prevent the possibility of passing such bills in anything like a perfect state.
On the 23rd August, 1854, a Commission was issued to Lord Cranworth, C., Lord Brougham, Lord Campbell, Lord Wensleydale, C. J. Jervis, Mr. Walpole, Mr. Baines, Sir W. P. Wood, Sir F. Kelly, Messrs. Ker, Coulson, and sundry others, "for the purpose of consolidating the statute laws of the realm, or such parts thereof as they might find capable of being usefully and conveniently consolidated, combining with that process, if they should think it advisable, the incorporation of any parts of the common or unwritten law, in such manner as should seem to them desirable; and also for the purpose of devising or suggesting such rules, if any, as might in their judgment tend to secure simplicity or uniformity, or any other improvements, in the form and style of future statutes."
On the 12th March, 1856, the Commissioners resolved to consolidate the whole Statute Criminal Law, and accordingly a number of barristers were employed under the Commission to prepare the bills for that purpose. And the following bills were prepared by them :-1, Offences against the Person ; 2, Offences against Property by Larceny, &c.; 3, Malicious Injuries to Property; 4, Forgery; 5, Treason and Offences against the State ; 6, Offences of a Public Nature; 7, Accessories; 8, Procedure.
These bills were framed as a mere consolidation of the existing Statute Criminal Law relating to all indictable offences, in the very terms of the existing enactments. With the exception of the Procedure Bill, these bills were confined to the clauses creating the offences, and even where an offence punishable on summary conviction was made a felony or misdemeanor on its being committed a second or third time, the summary offences were not introduced, but only so much of the enactment as created the felony or misdemeanor.
On the 4th of June following I became a member of the Statute Law Commission, and on the same day the bills so prepared were referred to Lord Wensleydale, C. J. Jervis, Sir Fitzroy Kelly, and myself, as a committee, to examine and revise them; and accordingly we met from time to time during five weeks, and went through all the bills, comparing them word for word with the statutes from which they were taken; and making no alterations in them except such as were absolutely essential in order to get rid of palpable inconsistencies or provisions manifestly unsuitable to the present day.
On the 26th of July, 1856, these bills were introduced in the House of Lords by Lord Cranworth, C.; but they were not proceeded with in consequence of the late period of the session, and no discussion took place as to their merits.
As these bills were merely consolidations of the existing law, it may be well to make some remarks here on that subject, not only as applicable to the Criminal Law, but also to the Civil Law. In addition to the statutes con