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RUINS OF TIME
SIR MATTHEW HALE'S
HISTORY OF THE PLEAS OF THE CROWN
ANDREW AMOS, Esq.
DOWNING PROFESSOR OF THE LAWS OF ENGLAND IN THE UNIVERSITY OF CAMBRIDGE,
AND LATE MEMBER OF THE SUPREME COUNCIL OF INDIA.
V. AND R. STEVENS, AND G. S. NORTON,
26, BELL YARD, LINCOLN'S INN:
CAMBRIDGE: DEIGHTON, BELL AND CO.
PRINCIPAL object of the present publication,
is to contribute a few results of experience and reflection towards the adoption of a Code of Criminal Law, by which is herein meant, a consolidation conjointly of the Common Law, and of the Statute Law with its judicial constructions, according to a scientific arrangement, terminating all controverted questions, and expressed in a manner suitable to legislation of the present day; together with such amendments as are obviously dictated by justice and expediency.
As a consolidation of the entire Statute-Book is calculated to divert the attention of Parliament from the urgent occasion that, in the opinion of many, exists for a Code of Criminal Law, it may be pertinent, at the present juncture, to inquire, whether the two measures be not, for the most part, distinct from each other? and whether one must be nipped in the bud until the other be full blown?
With regard to Statutes alien to the subject of Criminal Law, it seems apparent that their consolidation can be of little or no use towards the structure of a Penal Code; whilst the previous Consolidation of the entire Statute-Book, containing from fifteen thousand to twenty thousand statutes, (either general, or including
general clauses,) though conducted on the meanest principles, must delay the Criminal Code to an inconvenient period, even if it may not be said of an undertaking to consolidate all the Statutes, in a fragmentary way, within two years, "the learned gentleman doth profess too much, methinks."1
It is superfluous to inquire, whether a Consolidation of Criminal Statutes, apart from the rest of the StatuteBook, be a necessary or expedient preliminary to a Penal Code, because that consolidation has been already substantially executed by the Legislature. Acts passed purposely for consolidating and amending the Criminal Statutes concerning all the ordinary classes of offences, have left almost a sinecure for the Consolidator of the present day. For example, as regards a specimen of the operation in progress which has recently been exhibited, viz., “An Act for consolidating the Statutes concerning Offences against the Person," there was passed, in the reign of George IV. an Act in which all the Statutes then in force that had ever been passed on that subject down to its own date, were either repealed or consolidated. By that Consolidating Act of George IV., sixty-one Statutes were wholly or partially deprived of force: and, in consequence, when Lord St Leonards' Bill upon the same subject was framed and revised with painful circumspection, it was found that, after the alluvion of a quarter of a century, dating from the Consolidating
1 "In my judgment, if we were to proceed on the principle advocated by the honourable and learned gentleman, so far from completing the work in two years, it would not be completed in two centuries."-Speech of the Attorney General, Times, Feb. 15. The first Bill is not yet in the Press, March 18.
Act, the number of Statutes, of which any repeal, though it were of a single section, was required in order to consolidate the law, was only ten.' Athos had been sailed through; there was no occasion for another legal Xerxes.
It has been represented by very high authority in Parliament, that the Consolidation of the Statute-Book, and nothing but the whole Statute-Book, was a Novum Organum, for want of a discovery of which all plans for Codifying the Criminal Law had hitherto failed. But it is to be remembered, that Sir R. Peel's Consolidating Acts, that were passed in 1827, were founded on the Report of Dr Lushington's Committee of the House of Commons, delivered in 1822. The Organum Antiquum and not Novum has been available for upwards of a quarter of a century. And now, when it is inquired, what has the Consolidation of the Criminal Statutes done in furtherance of Codification? we are answered; nothing, because the Organum, unless it comprise, not merely Criminal Law, but the entire Statute-Book, will not work.
In remodelling the Statute-Book, it is to be observed, that there are two very distinct operations to be performed one, the consolidating of dispersed enactments in force, and making way for it by repealing what is to be more methodically re-enacted; the other, an eliminating of whatever has been or is repealed, or is
1 These repeals were chiefly occasioned by the mitigation of the punishment of death, in various cases, at the commencement of the present reign; the statutes accomplishing which change, as well as the Consolidating Act of the 9th Geo. IV. required repeal with a view to their re-enactment collectively, but almost totidem verbis.