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useless for any practical purpose, however they may serve as embellishments.
Of the Scotch law contained in the several articles under consideration, we have only to observe that, judging from the extent of the extracts already made from Hume's Commentaries, we have every reason to believe, that by the time Mr. Hammond's Criminal Code is completed, Hume's two quarto volumes will become entirely superfluous, inasmuch as every word of them will have been incorporated in the new work. The truth is, that Mr. Hammond uses no discretion in his quotations. Whether it be for the purpose of proof or illustration; whether he is dealing with reported cases or the opinions of text authors, he perseveringly drains his authorities to the dregs, citing on through matter relevant and irrelevant with undiscriminating prolixity; so that each title is swelled out to a bulk absolutely appalling to those wearied spirits, which after wandering in the wilderness of Statutes and Precedents, of Digests, Abridgements, Reports, Practical Treatises, Summaries, and Indexes, have been accustomed to look forward to a new Code, as the Land of Promise, a place of rest.
We shall not dwell upon the affectation of calling the paragraphs "placita," (c) although any approach to foppery might well have been spared in a work of so grave a cast; but shall hasten to consider the consolidating and condensing sections. In these operations the author has been, upon the whole, tolerably successful. The principal fault that can be laid to his charge is ambiguity; a fault it must be confessed of no trivial importance in such a work, but which we are satisfied is to be ascribed not to ignorance of his subject, but to the defective construction of his language, and the involution of his periods. A few examples will suffice to exhibit Mr. Hammond's powers of perplexing. In the title "Burglary," pl. 115, 116, he states the law in these words: "As to what shall be a breaking, a breaking is either in law or in fact. In fact, where some portion of the fabric is displaced.
(c) The author has evidently a strong predilection for the Latin language; but by some strange fatality it generally suffers distortion or mutilation under his pen. In title "Housebreaking," p. 98. he quotes a passage from Barrington thus: "the money was chiefly in the coffers of the barons, centum servita claribus." For the credit of Barrington we beg to state that he has it servata clavibus. We recollect also to have met with the following curious verbal associations in a certain
treatise on the law of Nisi Prius by Mr. Hammond :-" vis impressus, and "contra regem et legibus." With respect to the latter, we are aware that the learned Kysarcius maintains that where the fault is only in the declension, and the roots of the word continue untouched, the inflections of their branches, either this way or that will not destroy the force of Latin in baptism." Perhaps it may be with law as with baptism; but even this will not mend claribus.
In law, where an ideal boundary is transgressed. And the rule is settled to be that a breaking in fact is alone sufficient." It would scarcely require the opinion of the twelve judges to establish the rule, that a breaking in fact would be alone sufficient to constitute a breaking. The author's meaning no doubt is, that an actual, not a constructive, breaking is necessary to the crime of burglary. Again, he proposes to condense 12 Ann. c. 7. s. 3. in the following form:-" It shall be burglary feloniously to enter a house by day or night, without breaking it, or being in a house to commit a felony, and in the night time to break the house to get out of it." pl. 90-from which it would appear to any person unacquainted with the law, that it is burglary, "feloniously to enter a house by day or night without breaking it; for that clause of the sentence is complete. The act of Anne is in itself not exactly a model of composition; but our author's condensation would render it nonsense. Again, in the title "Coining," one of the provisions of 3 G. 4, c. 114, is thus stated:-" And that in addition to, or in lieu of any other punishment, the offence of uttering counterfeit King's money of gold or silver is punishable with hard labour for not exceeding the term of the imprisonment.” The natural in
ference from this passage is, that there are cases in which the punishment of hard labour is inflicted without imprisonment. No 'such inference can be drawn from the words of the statute itself, which are unusually explicit, viz. that for certain offences the Court shall have the power to award "sentence of imprisonment with hard labour, for any term not exceeding the term for which such Court may now imprison for such offences."
The concluding section of each title professes, as we have above seen, to give a summary of the law upon the particular subject, and to " suggest certain alterations in that law." summary is accordingly furnished, but the column for " proposed alterations" remains almost a blank. This circumstance is the more to be regretted, because the few alterations that are suggested display much of that "originality," which Mr. Hammond declares, in his Letter,' to be one of the characteristics of his work; and prove most satisfactorily that he is accustomed "to think for himself." For example, in p. 136 of title "Burglary," his suggestion is this:-"Provide that an entry without a breaking, or a breaking without an entry, shall be sufficient in burglary." Without pausing to inquire whether this alteration would be judicious, let us pass to the next suggestion, standing in the very same page, without a single intervening sentence to interrupt the current of the author's ideas; "Provide that the transgression of an ideal boundary shall be—a breaking!!" Now it does not appear how the phrase "transgression of an ideal
boundary" is at all applicable to burglary; for, although a man's land may have an ideal invisible boundary, existing only in the contemplation of law, so as to support the "clausum fregit" of trespass, his dwelling-house, domus mansionatis, has usually something more than an ideal boundary, except, indeed, when he happens to lodge under that "excellent canopy, the air." However, if the transgression of an ideal boundary means any thing, it means an entry. Therefore, let us see how the two suggestions stand; 1. That an entry without a breaking shall be burglary, and that a breaking without an entry shall be burglary. 2. That an entry (transgression of an ideal boundary) shall be a breaking; the natural corollary to which is, that a breaking without a breaking shall be burglary.
In considering Mr. Hammond's proposed alterations, we are insensibly led to inquire how far he is qualified for the important task of purging the law of its defects. Some of the most revolting imperfections of our Criminal Code, and of the practice of our Criminal Courts, originate in the vague and indeterminate, if not erroneous notions, which legislators, as well as judges, have entertained with respect to the fundamental principles of Penal Law. And we may safely assert that, without a correct apprehension, and steady application of those principles, any measures of reform will be maimed, and incomplete in themselves, and unsatisfactory to the feelings and wishes of the nation. Mr. Hammond has promised us a "paper ascertaining those general principles that should govern in the formation of a Code of Criminal Jurisprudence." This paper has not yet appeared; but, in its absence, we are fortunately enabled to form some estimate of our author's progress in the science of jurisprudence from two tracts, to which we have already alluded; namely, the "Scheme of a Digest" subjoined to the "Law of Forgery " in its original shape, and the "Introductory Observations," which are a part of the Appendix to the Parliamentary Report of April, 1824.
The "Scheme opens after the manner of Scarron or Field-ing. Our readers will probably recollect the following pithy titles to some of Fielding's chapters:-" Shewing what kind of a history this is; what it is like, and what it is not like;"-" Containing little or nothing;" &c. In the same happy communicative strain does the "Scheme commence :-"Section 1, Shewing that the work has been separated into three parts." This section contains little that is original, except the proposition that "it is only by taking from what is imperfect that we form the idea of perfection!" The second section presents us with the specimen of a chapter on summary convictions, not unworthy of note, as it is evidently the offspring of mature reflection, and
may be expected to appear again before the public, in some one of the numerous publications promised by the author (d): "A conviction is the judicial act of a competent jurisdiction, recording a summary proceeding, by which an offender is convicted of a crime denounced, and sentenced to a punishment enjoined by act of Rarliament." It might perhaps have been as clear an exposition of the subject, to have said, "A summary conviction is—a summary conviction;" -a proposition which we are by no means prepared to controvert. There is another proposition of the author upon the same subject in the same page, which is equally indisputable: The Act warranting the proceeding either prescribes the form which the conviction shall assume, or, it does not. prescribing a form, either enjoins its observance, or (mark the conscientious circumspection of the author) contains no such injunction."
"O Laertiade, quicquid dicam, aut erit, aut non."
These, however, are transient beauties. What we would wish especially to recommend to the attention of our readers, is the sixth section of the Scheme," containing part of an 66 Essay on the Theory of Criminal Jurisprudence, and Executive Justice." Our space will not allow us to display in detail the many ingenious doctrines broached in the Essay in question, nor the arguments upon which those doctrines are founded. We must content ourselves with exhibiting a few of the results at which the author arrives, referring our readers to the Essay itself, which will amply repay the labour of perusal, and may furnish curious subjects of speculation to those who employ themselves in tracing the workings of the human mind. The following conclusions, it must be confessed, are those of no ordinary genius :-' -That sympathy with the misery of others was the first parent of penal jurisprudence.-P. 27. That the punishment of death is efficacious in deterring from crime; and that all other punishments are inefficacious.-P. 47.
(To which we can add no more appropriate comment than the words of King Arthur, in Tom Thumb Hang all the culprits.")
That the frequency of capital punishment does not tend to harden and deprave the public feelings.-P. 47. That the infliction of death for offences differing in degrees of malignity does not tend to confound the ideas of guilt. Pp. 50-2. That where the punishment for murder is the same as that which is inflicted for a minor offence, an offender is not tempted to commit murder, in order to destroy the evidence of guilt; because no instance
(d) The same specimen is also inserted in the Introductory Observa
tions,' which leaves no doubt of the value attached to it by the author
has been known in England of a forger adding murder to fraud. (e)
From the "Scheme," we turn to the "Introductory Observations," which have this additional claim to our notice, that they come sanctioned by the wisdom and grave authority of a Select Committee of the House of Commons.
In these "Observations," the author communicates & discovery as notable and ingenious as any of the doctrines advanced in his "Scheme" namely, that the distinction between larceny and fraud is a distinction, "raised on the sands of technicality and form, and wanting that foundation in reason which alone can promise an eternal stability." Amidst the infinite variety of human actions, which are the subjects of Penal Law, it must be admitted, that it is often difficult for the legislator, or the jurist, in the classification of offences, (f) to establish such precise rules and limitations as will stand the test of an accurate and critical judgment. The difficulty, however, occurs only in the subdivision of crimes. There still remain certain broad lines of demarcation, which strike the most casual observer, and are unhesitatingly recognized by the conmon reason of mankind. Of this number, we confess, we have been accustomed to regard_the_distinction between theft, or robbery, and fraud. But, says Mr. Hammond, the motive is the same in fraud as in larceny; "Since what is it more than the intention to appropriate another man's property? The end in view is the same in fraud as in larceny; since what is it more than to accomplish the motive just described?" which we beg leave to add, that the motive is the same in seduction as in rape, and so is the end; that where a man, as in the case put, 1 Hale, 429, "either by working upon the fancy of another, or possibly by harsh or unkind usage, puts another into such passion of grief or fear, that the party either dies suddenly, or contracts some disease whereof he dies;" the motive may be the same as in homicide, and so is the end. But are the means employed wholly immaterial? Is there no difference, except in degree, between the act of a man, who, by deceitful re
(e) The forger would be somewhat embarrassed in the selection of his victim. Should he murder the banker, the banker's clerk, or the man whose cheque he has forged? Or should be cut them all off at one fell swoop? Men have been known to carry on an extensive system of forgery for years; and if they murdered even one individual for every fraud, the earth would be thinned. VOL. 1.-JI!.
(f) Mr. Hammond has a curious notion respecting the classification of crimes. He says, in his 'Observations,' p. 8, " The chief reason for classifying crime, thereby discriminating criminal actions as offences of different natures, is to punish certain actions with greater severity." Was this the chief reason for distin
guishing murder from forgery?