Consolidation of the Statute Law. original Commissioners; and 2 Rep. p. 5 of the Revising Commissioners. The learned gentlemen next consider it necessary to reply to some of the objections made by the Judges to the consolidation of the unwritten law relating to crimes. 259 "When the law is to be extracted, as the unwritten or oral law must be, from a mass of precedents, it cannot possess the efficacy of written and certain rules and specific penalties in deterring men from the commission of crimes. For the law cannot be said to be promulgated till after the offence committed, where, previously, it cannot be known even to the most experienced lawyers, except by laborious research, and the aid of legal reasoning and analogy, We conceive that it will appear, from the digest and notes which we have given upon the subject of theft, that with regard to that offence at least, this inconvenience is, at present, very often practically felt.' 666 And as the Common Law can, in many cases, only be known by the difficult and fallible process of extracting principles from precedents, and determining on the comparative weight of authorities where they conflict, so it will be collected from our preceding remarks, that the materials to which this process must be applied are but imperfectly known to the Profession, and are in a great measure inaccessible to the public."' "Before doing so, however, it seems to us to be by no means immaterial to call attention to the precise extent to which the Common Law would be repealed by these bills and statutory rules substituted for the same. By sect. 1 of Bill No. 1, no person is to be liable to indictment or criminal information in the name of the Queen, in respect of any offence against the person not included in this Act, or some Act not hereby repealed, or some Act to be passed after the passing of this Act.' It is manifest that this section does no more than incidentally repeal the Common Law definitions of the particular offences referred to, and in no way whatever extends beyond that limit. Now the only other section which repeals any Common Law rule is sect. 3, which repeals 'all rules of law contrary to the provisions of "And again the Commissioners observe, this Act relating to incapacity to commit of-All the difficulties which we have pointed out fences, duress, criminal intention, and crimi- as presenting themselves to the reduction of nal agency and participation.' Consequently, the Common Law to a more plain and certain all rules of the Common Law, other than such form, afford arguments in favour of that reducas are thus intended to be repealed, would still continue in force, and be applicable to the offences contained in these Bills, in like manner as they are now applicable to Common Law offences. tion. The same difficulties which occur in framing consistent rules from the mass of authorities, are experienced in the practical administration of the law; and frequently, on occasions where there is little time for reflection in coming to a decision, few opportunities for revising it if erroneous, and no sufficient means of redressing the consequences of error.' "The inconveniences arising from the administration of the oral law have, in particular make recourse to legislative aid absolutely neinstances, prevailed to such an extent as to "The first objection to which we shall reply, is, to use the words of Mr. Baron Parke, the danger of confining provisions against crimes to statutory enactments, and repealing in this respect the rules of the Common Law, which are clear and well understood, and have the in-cessary: and thus considerable portions of the calculable advantage of being capable of application to new combinations of circumstances perpetually occurring, which are decided, when they arise, by inference and analogy to them, and upon the principles upon which they rest.' "This objection appears to be the principal one relied upon by the Judges: and it is not a little remarkable, that the very ground on which it is founded is put forward by the Commissioners as a very strong reason for the consolidation of the Common Law offences. "They say (1 Rep. p. 25), 'However convenient the common or unwritten law may, in the opinion of some persons, be in its quality of flexibility and easy adaptation to all the varying exigencies of justice, so far as concerns mere civil rights, yet with respect to the criminal branch of the law these very qualities constitute an objection to the system. So long as a large proportion of penal law is merely oral, and dependent on the examination and construction of precedents, it must be, to the mass of society, inaccessible and unintelligible in its rules and boundaries.' Common Law have from time to time been declared, and the doubts, occasioned by conflicting cases, have been removed by the Statute Law, through the means of what are termed declaratory Acts. Whatever advantages have resulted where such interference has become enced from the application of a similar remedy necessary, will, it is apprehended, be experiin numerous instances where it has not hitherto been applied.'—(1 Rep. 26, 27.) "Nor does the matter end here. If every Common Law offence were known and fixed by certain rules, the objection of the Judges would be entitled to much greater weight; but when it is considered that there is hardly a single Common Law offence, the limits of which are known and fixed, either by definition or decision,' there is the danger that by "Take as an example, theft, of which there are at least five or six different definitions, and observed in Reg. v. Holloway, 1 D. C. C. 375." none of them complete, as Mr. Baron Parke P 5 260 Consolidation of the Statute Law. applying the maxims and rules of the Common "Mr. Justice Talfourd says, 'New forms of Law to new states of circumstances as they misdemeanor have repeatedly arisen, and have arise, though, done with the most pure and been punished by the application of the general principles of the Common Law. Within livlaudable intention, and with an earnest desire ing memory forms of wrong, either singly to punish the guilty, and to protect the in-adopted or devised in conspiracy, have been terests of society,' the Common Law offences found criminally to impugne the rules of the may be enlarged by construction so as to in-unwritten law, and by the application of the clude cases to which their definitions did not principles of that law have been subjected to punishment; because those rules, not professoriginally apply. Upon this subject the Com-ing to define every mode of delinquency, are missioners say in their Fourth Report, p. capable of just adaptation to the changing xiv.: aspects of society,-to the new temptations which arise from new circumstances,-to the new modes of injury which new duties and new descriptions of property suggest, or to the new devices of evil which ancient wickedness may shape.' "Much uncertainty has arisen in the administration of our Criminal Law from the use of constructive extensions of Common Law defibitions. Most of the definitions of the offences in the English Law are of great antiquity; and, And Mr. Justice Crompton says, "I think having been adapted to times when it was it unadvisable to lose the advantages of the more necessary to guard against force than power of applying the principles of the Comfraud, have been found insufficient to meet the mon Law to new offences and combinations of exigencies of a more civilised state of society, circumstances, arising from time to time, which in which the means and opportunities, as well it is hardly possible that any codification, howas the temptations, to commit fraudulent ever able and complete, should effectually crimes, have increased with increasing civilisa-anticipate.' tion. Finding the existing law, according to its obvious meaning, inadequate to the growing "Two questions occur to us upon these obdemands of criminal justice, the Courts have servations. Is it their meaning that the defifrom time to time, by their own authority, ex-nition of Common Law offences are clear and tended the boundaries of legal definitions by forced constructions, and have thus brought within the scope of penal provisions predicaments to which they had never before been applied, and which had even been excluded in a former age by express decisions. Hence arose the doctrines of constructive treasons, of constructive possession in larceny, of constructive breaking and entering in burglary, of constructive force, and constructive fear in robbery, and many other subtleties and refinements of a similar nature. The extension of the penal law principles of the Common Law? certain, and that the principles of the Common Law are only to be applied to new states of facts, in order to ascertain whether they amount to offences within the clear and certain definitions of the Common Law offences? Or is it their meaning that from time to time the essential ingredients of Common Law offences are to be reconsidered and determined according to the lature. In the former, we would suggest that there is hardly a Common Law offence the limits of which are clearly ascertained; and certainly none so absolutely fixed as not to admit of being questioned whenever a novel case may arise, so as to comprehend those predicaments was "If the latter be their meaning, we would reasonable and politic, but the mode of effect-very humbly ask whether this be not rather an ing it was liable to much objection. The prac- encroachment on the functions of the Legistice amounted in effect to an exercise of the legislative functions by the Judges; and every such new decision beyond the strict limit of the ancient law was not anly objectionable in subjecting the offender to a degree of punishment adapted to forcible outrages, where he had neither used nor contemplated violence, "We would further add, that it is possible but also because every such instance of ju- to conceive the occurrence of a case of such a dicial interpretation constituted an ex post nature as so to exasperate the feelings of the facto law. Independently of these objections, public that the Court may be placed in a very such extensions operated injuriously upon the critical position if called upon to decide law itself, by rendering it indistinct and un- whether the facts amounted to an offence: in certain, the ancient boundaries being over-proof of this we need only mention the case of thrown for the purpose of reaching flagrant offences not comprehended by them, without substituting such exact limits to the extended crimes as a correction by legislative interference would have prescribed."" These remarks, it is urged, will deserve the consideration of the Legislature, especially in reference to the following opinions of the Judges: Reg. v. S. and L. Abrook tried at Hertford before Mr. Baron Alderson, and reported in The Times' of the 3rd June, 1854, where the prisoners were indicted for manslaughter, by starving their servant to death, and Mr. did not quite concur in the decision that had Baron Alderson is reported to have said, 'He been come to in a similar case in London; but there had been a great deal of sympathy created for the complaining party, and the consequence Consolidation of the Statute Law. 261 was that there was a great deal of writing in have been obliged to make in the course of the public journals respecting it, and this pos- preparing these and the seven other Bills which sibly had something to do with the result. we have already completed, has drawn our atHe should, however, do his duty regardless of tention to many most serious defects and imany observations that might be made respecting perfections in the statutory enactments relating it.' The learned Baron probably referred to to crimes, not only in the manner in which Sloan's case. those enactments are framed, but also in their omitting many cases equally as deserving of punishment (and in many instances more so) as those against which they provide. In practice, however, these defects have not often been brought to light; which suggests the conclusion that it may be very possible for a Statute to have some defects in it, and yet in practice "It is also said that it is impracticable to re "We would next observe that no rule, principle, or decision, as to Common Law offences, can be considered absolutely, and under all circumstances, binding on the Judges; and that there are some peculiarities with reference to criminal cases which do not apply to the general law. For example, many decisions in criminal cases have been made without argu-to work very well. ment, or after argument on one side only, and consequently are entitled to much less weight than if the cases had been fully argued. In duce all the common law offences into a Stasome instances no reasons for the decisions tute, since no foresight can anticipate all cirhave been reported: in others, contradictory or irreconcilable reports have been published. cumstances that may arise. Again, all such decisions are but instances of the law as applicable to the particular facts of each case, and it is sometimes very difficult to determine whether the case is to be treated as laying down a rule, or only as an example of a more general rule. "It may be remarked that the same objection applies equally to the Statute Law, for new circumstances (the creation of railways, for instance) may give rise to new states of facts which deserve punishment. But, assuming this to be correct as regards Common Law offences, we ap "Another objection urged is, that new Sta-prehend that the cases omitted will be extreme tutes always give rise to numerous questions, which have to be decided upon a critical examination of the terms of the Statute alone: "Mr. Justice Talfourd in proof of this refers to 'the Statute of Frauds, which, framed by one of the greatest lawyers that ever lived, has been the subject of almost numberless deci sions.' We admit that a new Statute will, in all probability, lead to some new decisions; but a better proof that such Statutes may, nevertheless, be highly expedient cannot be given than is afforded by the Statute of Frauds itself, every line of which, Lord Northington used to say, was worth a subsidy. to "We cannot help also referring to Lord Campbell's Act for the Amendment of the Criminal Law, [14 & 15 Vict. c. 100], to parts of which some of the Judges are understood have objected at least as strongly as to these Bills; for not only has that Statute not created the evils predicted, but it has almost wholly got rid of technical objections; very few questions have been raised upon it; and the only complaint made in respect of it has been that the provisions which were struck out in its course through Parliament did not become law." "We would here also observe, that the strict examination of the Statutes which we 2.46 minor importance. And it may not be unones, and those very few, and probably of worthy of notice, that although it is said to be a very bold thing to provide for all offences against the person, none of the learned Judges has pointed out a single offence against the person which is not provided for by the Bill relating to those offences. "It is also worthy of remark that, by the course adopted by the Bills, no such omission those where, after specially providing for cercan exist in many instances; for example, in tain cases, a clause is added including all other cases of the like kind. To illustrate what we mean, we refer to sect. 107, which includes all attempts to murder, and sect. 120, all attempts before provided for by special and particular to cause grievous bodily harm, other than those enactments. Statutes should be consolidated, and new pro"Several of the Judges recommend that the visions added where deemed essential; and that where there are conflicting decisions, or the law is doubtful, the law should be settled by enact ment. "They therefore seem to admit that, in cases of difficulty and doubt, the Common Law offences might be made clear by statutory en"In Reg. v. Sill (1 Pearce C. C. R. 132), actment. If their recommendation were folthe Court of Queen's Bench expressed their lowed in all cases where there is difficulty and regret that they were obliged to reverse a doubt, few indeed would be the common law judgment against the defendant for obtaining offences, the definition of which would not in property by false pretences, on the ground that part be contained in some Statute. Besides, it was not stated in the indictment to whom if the Legislature is competent satisfactorily to the property belonged. A clause rendering remove such doubts and difficulties, we presuch statement unnecessary had been struck sume it must follow as a matter of course that out of Lord Campbell's Bill." it is equally competent to deal with cases in 262 Statute Law.-Construction of Statutes.-Parliamentary Return. which no such doubts or difficulties have other like causes, it is necessary to come to the arisen. "With respect to the observations of Chief Justice Jervis, that 'It is very convenient for the draughtsmen to select subjects which require codification less than any other, -and which are comparatively easy, as specimens of what may be done upon the law at large,' "We would remark that the Lord Chancellor and others well know how far the selection of Court; but not to enable a party, in a contested suit, and upon an interlocutory application before the hearing of the cause, to obtain a decision upon the main questions at issue in it." ENTERING APPEARANCE FOR PARTIES Upon the bankruptcy of a principal defendant, his assignees were made parties by supplemental order, under the 15 & 16 Vict. c. 86, s. 52, but although served with the order they had not entered an appearance. The Master of the Rolls, on motion, gave liberty to the plaintiff to enter an appearance for the assignees. Cross v. Thomas, 16 Beav. 592. PARLIAMENTARY RETURN. MASTERS IN CHANCERY. THE following is the state of business in the Offices of the Masters in Chancery, collated from a return to the House of Lords, ordered to be printed 22d June last: these Bills was made by us; and as to the easiness of framing the first Bill, a very good opinion can be formed from the time spent by the Committee in considering it. In proof of the importance and difficulty of the subjects contained in these bills, we beg also to refer to the following statements of the Criminal Law Commissioners: We have made choice of this subject (theft), because we think that no other branch of the criminal law exhibits, in so remarkable a degree, the changes that the unwritten law has undergone, in consequence of its having been originally framed to meet less complicated circumstances, and having been afterwards adapted to the growing exi- STATE OF BUSINESS IN THE OFFICES OF gencies of society' (1 Rep. p. 4). If in addition to such difficulties, as to questions whether the owner of property retains any constructive possession at all, a number of intricate points with regard to the owner having at the same time, and with respect to the same property, a constructive possession as against one party, but no possession as against another, is considered, it must be admitted that there are few branches of the law in which the abstruseness and complexity of the subject present greater difficulties in the statement of precise, consistent, and intelligible rules,' than theft (1 Rep. pp. 8, 9). The difficulties peculiar to the Digest of Common Law crimes (arising ferred and now pending, exclusive of those in principally from the vague, changing, and often conflicting authorities, from which the law is which nothing remains to be done, except passto be extracted) are far more formidable than ing receivers' account, is as follows: those which attend the consolidation of the From Master Kindersley Statute Law. This remark particularly applies to the Common Law offences comprised under the general heads of Homicide and Criminal Violations of the Right of Property, including of course, in the latter, the crime of theft'' (4 Rep. p. 9). CONSTRUCTION OF STATUTES. EQUITY JURISDICTION IMPROVEMENT ACT. SALE OF ESTATE BEFORE HEARING, UNDER Sir George Rose : 100 The number of causes and matters originally referred and now pending, exclusive of those in which nothing remains to be done, except passing receivers' accounts, is to be done in the office except passing reAnd the number in which nothing remains ceivers' accounts, is is 36 The number of causes and matters trans 7 Farrer 13 12 17 And the number in which nothing remains to be done, except passing receivers' accounts, 63 The matters under the winding-up Acts ori ginally referred, and now pending in the office, are 13 And those transferred from the offices of Masters Kindersley, Farrer, Brougham, Senior, and Sir Wm. Horne, are 9 The total number of causes and matters now depending in the office is therefore. 197 IN Prince v. Cooper, 16 Beav. 546, the Master of the Rolls, in refusing an order before the hearing for the sale of an estate, under the 15 & 16 Vict. c. 86, s. 55, said: "The Act is intended to apply only to those cases, in which, for the protection of the property or The number of causes and matters originally And of those in which nothing remains to be done, except passing receivers' accounts 99 Richard Richards, Esq. : Parliamentary Return of Masters in Chancery: 263 referred, and now pending, exclusive of those | ferred and now pending, exclusive of those in in which nothing remains to be done, except which nothing remains to be done, except passpassing receivers' accounts, is 82 ing receivers' accounts, is as follows: From Master Kindersley And the number in which nothing remains to be done in the office, except passing receivers' accounts, is 45 5 Farrer 5 7 13 And the number in which nothing remains to be done, except passing receivers accounts, 66 The matters under the Winding-up Acts originally referred, and now pending in the office, are The number of causes and matters trans. ferred from the offices of Masters Kindersley, Farrer, Brougham, Senior, and Sir W. Horne, and now pending, exclusive of those in which nothing remains to be done, except passing receivers' accounts, is And the number in which nothing remains is 47 to be done, except passing receivers' accounts, is. 66 The matters under the winding-up Acts originally referred, and now pending in the office, 17 And those transferred from the offices of the Masters Farrer, Brougham, and Senior, are 8 The total number of causes and matters now depending in the office, is, therefore . 154 And of those in which nothing remains to be done, except passing receivers' accounts, 111 are 9 And those transferred from the offices of Masters Kindersley, Brougham, Senior, and Sir Wm. Horne, are 7 The total number of causes and matters now depending in the office, is therefore. . 148 And of those in which nothing remains to be done, except passing receivers' accounts Joseph Humphry, Esq.: 122 The number of causes and matters originally referred and now pending, exclusive of those in which nothing remains to be done, except passing receivers' accounts, is 133 And the number in which nothing remains to be done in the office, except passing receivers' accounts, is 52 And the number in which nothing remains to be done in the office, except passing re ceivers' accounts, is The number of causes and matters transferred and now pending, exclusive of those in which nothing remains to done, except passing receivers' accounts, is as follows: From Master Lynch. Kindersley Brougham 5 Sir Wm. Horne 28 The number of causes and matters trans ferred and now pending, exclusive of those in Farrer Sir Wm. Horne 15 And the number in which nothing remains to be done, except passing receivers accounts, is . 34 The matters under the winding-up Acts originally referred and now pending in the office, are 12 And those transferred from the offices of and Sir Wm. Horne, are. Masters Kindersley, Farrer, Brougham, Senior, 11 The total number of causes and matters now depending in the office is, therefore .. 266 And of those in which nothing remains to be done, except passing receivers' accounts. 62 Summary: The total number of causes and matters now is as follows:depending in the offices of the several Masters |