« EelmineJätka »
from the proposed limits of the work, I have ventured to
Generally, I have not noticed any alteration made in the punishments, whether of indictable or summary offences; as the awarding of the punishments by the Acts is simply arbitrary, and the alterations made in them can afford no assistance in the interpretation of any part of these Acts.
This course has been adopted as the best calculated to render this little work generally useful, and especially so to Judges, Chairmen of Quarter Sessions, and all those who may be suddenly called upon to put a construction on the new portions of these Acts; and for like reasons where the present enactments render decisions on the former Acts, either no longer applicable, or no longer binding authorities, those cases have been mentioned.
I have also prefixed a chapter on the general construction of the Acts, as it occurred to me that the observations contained in it might in some cases prove useful.
I have assumed that the persons who will consult this work either know the previously existing law, or have access to books wherein it may be found, and the observations are made in order to enable them at once to discover whether any, and, if so, what, alteration has been made in the law.
As far then as may concern the practical working of these Acts, it is hoped that sufficient may have been effected by the notes appended to the different sections, and the chapter on the general construction of the Acts; but it appears to be especially incumbent upon me to go much further, and to trace these Acts from their origin, and to describe the different stages through which they have passed, in order that it may be clearly understood not only under what circumstances they have passed, but how it happens that they have passed in their present form ; and as I cannot accomplish this task without touching upon the questions of the codification of the law whether written or unwritten, the consolidation of the statutes and the most expedient course to be adopted in framing Acts of Parliament, I shall devote some few observations to each of these subjects, and I am the rather induced to do so, because it so happens that in the connection I have had with the Criminal Bills, and in the examination which I made of a very considerable number of bills relating to many different subjects whilst I was a Member of the Statute Law Commission, many things were brought to my notice which bear very strongly on those subjects, and which would never have occurred to my mind unless I had been so engaged, and these things may very possibly have escaped the notice of others as well as myself.
Before the year 1826, the Criminal Law of England was scattered over the statute book, in many different Acts, and was in a very unsatisfactory state in many respects; but in that year the late Sir Robert Peel commenced a series of Acts, which consolidated and amended the then existing law.
The first of these Acts was the 7 Geo. 4, c. 64, which passed on the 26th May, 1826. This Act provided for the examination, commitment or bailment of persons charged with felonies and misdemeanors before Justices; the taking depositions by justices and coroners ; the trial of accessories to felonies; the trial of offences committed on the boundaries of counties or in a journey; the mode of describing the property of partners, &c., in indictments; the costs of prosecutions; and rewards to persons who had been active in the apprehension of certain offenders. Consequently it was an Act relating to procedure only.
In 1827 four other Acts were passed. The 7 & 8 Geo. 4, c. 28, provided for the effect of pleading "not guilty;" the Court entering that plea where a prisoner refused to plead; challenges beyond the legal number; pleading attainders of crimes; the jury not inquiring of the prisoner's lands; the abolition of clergy; what felonies only should be capital; the punishment of felonies for which no particular punishment was provided; the sentencing a prisoner already convicted of another felony ; the punishment, &c., of felony after a previous conviction of felony ; admiralty offences; the effect of pardons, and the general rule for the interpretation of all criminal statutes.
The 7 & 8 Geo. 4, c. 29, relating to larceny and other cognate offences, which was a similar Act to the present Larceny Act.
The 7 & 8 Geo. 4, c. 30, relating to malicious injuries to property, which was a similar Act to the present Malicious Injuries Act.
The 7 & 8 Geo. 4, c. 31, which consolidated and amended the law relating to remedies against the hundred.
In 1828, the 9 Geo. 4, c. 31, relating to offences against the person passed. This Act was similar to the present Offences against the Person Act.
The whole of the preceding Acts, except a few clauses, related to offences committed in England only, or on the high seas.
In the same year were passed the 9 Geo. 4, c. 54, which embodied many of the provisions of the 7 Geo. 4, c. 64, and 7 & 8 Geo. 4, c. 28, and applied them to Ireland; the 9 Geo. 4, c. 55, which embodied the provisions of the Larceny Act, 7 & 8 Geo. 4, c. 29, and applied them to Ireland; and the 9 Geo. 4, c. 56, which embodied the provisions of the Malicious Injuries Act, 7 & 8 Geo. 4, c. 30, and applied them to Ireland.
In 1829, the 10 Geo. 4, c. 34, passed, which embodied the provisions of the Offences against the Person Act, 9 Geo. 4, c. 31, and extended them to Ireland.
Each of these Irish Acts contained amendments or alterations of the clauses in the English Acts, and also additional clauses, which were adapted to the then existing state of crime in Ireland.
In 1830, the 1 Will. 4, c. 66, relating to forgery, was passed. This Act was confined to England, and no similar Act was afterwards passed relating to Ireland.
In 1832, the 2 Will. 4, c. 34, passed, which consolidated and amended the law relating to coin in England, Scotland, and Ireland.
This is a brief account of the Criminal Acts that were passed between the time when Sir R. Peel commenced his labours, and the appointment of the first Criminal Law Commissioners.
On the 23rd July, 1833, a Commission was issued, whereby Messrs. Starkie, Ker, Wightman, Amos, and Austin, were appointed Commissioners “to digest into one statute all the statutes and enactments touching crimes, and the trial and punishment thereof, and also to digest into one other statute all the provisions of the common or unwritten law touching the same, and to inquire and report how far it may be expedient to combine both these statutes into one body of Criminal Law, repealing all other statutory provisions, or how far it may be expedient to pass into a law the first-mentioned only of the said statutes, and generally to inquire and report how far it may be expedient to consolidate the other branches of the existing statute law, or any of them.”
It may be well to observe in passing, that this Commission assumed that all indictable offences might properly be included in a single statute, and that it originated the attempts to reduce the unwritten law into a statute. As to the latter, the Commissioners were to report whether it was expedient or not; but as to the former, they seem to have had no discretion, but were to include all statutory indictable offences in one Act. It is plain that this was equivalent to declaring that the course which had been adopted by Sir R. Peel was erroneous; for that course had been to pass single Acts relating to one subject matter, and not confined to indictable offences only, but including summary offences and other matters.
It may well be doubted whether this Commission were not the origin of much delay, by causing an attempt to be made to consolidate and codify the whole criminal law at once; and it may be, that the result of the Commission would have been very different if the Commissioners had been directed to prepare a single statute on one subject in the first instance, as the consideration of that statute would probably soon have brought the question to some determination or other.
On the 27th October, 1836, a second Commission issued, for precisely the same purposes, and to the same Commissioners, except Mr. Austin, for whom Mr. Jardine was substituted.
On the 26th October, 1837, a third Commission for the same purposes, and to the same Commissioners, was issued, in consequence of the former Commission having expired on the death of William IV.
On the 22nd February, 1845, a fourth Commission issued to Sir E. Ryan, Messrs. Starkie, R. V. Richards, Ker, and Amos, to complete a report on criminal procedure then preparing, and to consider the previous
Reports, and the alterations therein suggested, and the expediency of consolidating into one or more statute or statutes, agreeably to the digests contained in such reports, or with any, and what, alterations and additions, the whole, or any part or parts, of the Criminal Law, as well written as unwritten, and for preparing a draft of a bill, or bills, for that purpose.”
Under the earlier Commissions eight reports were made. Under the last Commission five more; and in a report made the 30th of March, 1848, there was added a draft of a bill containing, "An entire Digest of the written and unwritten Law relating to the Definition of Crimes and Punishment."
On the 6th of June, 1848, Lord Brougham introduced into the House of Lords the bill so prepared by the Criminal Law Commissioners, bụt it was not proceeded with.