APPENDIX.

CODIFICATION OF THE CRIMINAL LAW.

MUCH has been said and written lately about the proposed Codification. Codification of the Criminal Law. At times it has seemed

as if the project would soon become an accomplished fact. But then again circumstances have interfered to indefinitely defer the matter.

the term.

In prospect of future legislation, it will be well to Definition of briefly review the history of the scheme. But before doing this some explanation should be given of the term "Codification." Various erroneous ideas have been abroad as to the danger of the proposed change. Fears have been expressed that the law would be deprived of its elasticity and so on. In answer to such objections, the Commission of 1878, appointed to inquire into the question of Codification, thus explained its object and effect :

"Codification merely means the reduction of the existing law to an orderly written system, freed from the needless technicalities, obscurities, and other defects which the experience of its administration has disclosed" (a).

Any code that might be established would of course be open from time to time to modifications and additions.

attempts at

The question whether the reduction of the criminal History of law of England, written and unwritten, into one code, is codification. either desirable or practicable, is one which has been much considered (b).

In the years 1833, 1836, 1837, three different Com

Legislation, 1878-1880.

Commission of 1878.

missions were issued, under which eight Reports were made.

In the year 1845 a fourth Commission was issued, under which five Reports were made. In the fourth of these there is the draft of a bill for consolidating into one statute the written and unwritten law relating to the definition of crimes and punishments. This bill was introduced to the House of Lords by Lord Brougham, but was not proceeded with.

In the year 1852, Lord Chancellor St. Leonards gave directions for the preparing separate bills for the codification of the criminal law on separate subjects. One bill for the codification of the law as to Offences against the Person, was prepared and introduced to the House of Lords, and referred to a Select Committee. But on a change of Government the matter dropped.

In the year 1853, Lord Chancellor Cranworth sent a copy of the above-named bill to the judges, requesting their opinion on it. Their opinions were unfavourable. In reply to these criticisms, the Lord Chancellor received a memorandum from Messrs. Greaves and Lonsdale, who had prepared the bill.

The plan of codification was abandoned by Lord Cranworth. But eight bills were prepared under his direction; and after much consideration, nine other bills were prepared in the year 1856. Of these last, seven became, with some alteration, the Acts well known as Greaves' Consolidation Acts (24 & 25 Vict. cc. 94-100). But they made no attempt at codification.

Recently the matter of codification has assumed a more definite shape. In the year 1878 a Criminal Code was prepared by Sir James Fitzjames Stephen, and presented to the House. A bill for establishing the Criminal Code was read a second time, but was shortly after withdrawn.

After this withdrawal, it was thought advisable to submit the bill to a thorough and exhaustive examination and review. Thereupon a Commission was appointed—the

Commissioners being Lord Blackburn, Mr. Justice Lush, Mr. Justice Barry, and Sir James Fitzjames Stephen. These Commissioners sent letters inviting suggestions and comments to the judges, chairmen, and deputy-chairmen of quarter sessions, recorders, and others conversant with the theory and practice of the criminal law. The Report of the Commission was presented to the House of Commons in June 1879, and was ordered by them to be printed. The Commissioners declare their object to be to frame a code, including, as far as practicable, all those crimes, whether at common law or by statute, which in the ordinary course of affairs come to be tried in the courts of criminal justice.

They recommend that certain classes of cases should be left untouched, viz.:

1. A certain number of statutes creating indictable offences, which are rather monuments of the political and religious struggles of former times, than parts of the ordinary criminal law, e.g., 1 Eliz. c. 2, which punishes "depraving or despising the Book of Common Prayer," on a third conviction, by imprisonment for life.

2. A certain number of statutes creating indictable offences which cannot perhaps be said to be obsolete, but which were passed under special circumstances, and which are seldom, if ever, enforced, e.g., 21 Geo. 3, c. 49, the Lord's Day Observance Act, which declares certain places opened for amusements or discussions on Sundays to be disorderly houses.

3. Many statutes which create indictable offences are of so special a nature, and are so closely connected with branches of law which have little or nothing to do with crimes, commonly so called, e.g., Merchant Shipping Acts, 17 & 18 Vict. c. 104, &c.

4. A large number of statutes contain clauses of a penal nature intended to sanction their other provisions, and are scarcely intelligible apart from them: e.g., the Acts which establish certain prisons give special powers to the keepers of the prison, and subject the prisoners to special punishments for particular offences.

5. The Peace Preservation Acts relating to Ireland.

Criminal Code
Bill, 1879.

Legislation of 1880.

6. The statute, commonly called the "Whiteboy Act," intended to repress offences springing from a peculiar state of society (c).

Meanwhile a bill had been brought into the House of Commons termed the Criminal Code (Indictable Offences) Bill. It was read a second time, subjected to the criticisms of Lord Chief Justice Cockburn, whose remarks were received and printed by the House, and finally withdrawn on July 14, 1879 (d). The Lord Chief Justice unsparingly pointed out the defects of the bill, though he had been long "a firm believer in not only the expediency and possibility, but also in the coming necessity of codification."

We now come to the legislation of the year 1880. On the 6th of February in that year, two bills were introduced into the House of Commons. One to be cited as "the Criminal Code," was prepared and brought in by Mr. Attorney-General, Mr. Solicitor-General, and Mr. AttorneyGeneral for Ireland. Its title was "A Bill to Establish a Code of Offences for England and Ireland, and to prescribe the Procedure by Indictment for the Punishment of Offences" (e).

The other bill was to be cited as "the Criminal Code (No. 2)," and was prepared and brought in by three private members.

The Government Bill was read a second time and referred to a select committee (f). The Attorney-General, on moving the second reading, mentioned the chief alteraChief alterations tions which the measure would bring about. It will be interesting to notice these:

proposed.

1. The abolition of the distinction between felony and misdemeanor, which would get rid of a number of very absurd and monstrous consequences.

2. The introduction of certain amendments into the law with regard to the doctrine of compulsion and coercion.

(c) Report, p. 12.

(d) 245 Hans. 310, 1750.
(e) 250 Hans. 244.

(f) Ibid. 1236.

3. The improvement of the law of homicide, which involved the extinction of the universally condemned doctrine of constructive malice.

4. The simplification of law relating to theft and fraud.

These were the proposed alterations in the first part of the bill. In the second part the following were the principal:

I. Provisions getting rid of the absurdities arising under the existing law from the doctrine of venue.

2. Provisions for changing the place of trial when necessary.

3. Provisions for the trial of criminals by special juries in cases of exceptional difficulty.

4. Provisions for the simplification of indictments.

5. Provisions for the keeping of a simple record of the proceedings, and the sweeping away of technicalities which rendered proceedings by way of writ of error next door to impossible.

6. Enactments as to juries and the challenging of jurors.

7. Provisions enabling the jury to have a view when required.

8. Provisions giving a more satisfactory appeal in criminal cases upon points of law.

9. Enactments enabling prisoners in proper cases to obtain new trials.

10. Provisions altering the law to a considerable extent as to the costs of prosecutions (g).

Parliament being dissolved soon after the second reading, legislation was necessarily again deferred. In the new Parliament the subject of the Criminal Code was mentioned. A question was asked which drew from the Attorney-General the answer that the Government had no intention during that session to introduce a bill for the

(g) 250 Hans. 1236.