66

a Code on the ground that it is necessarily incomplete and cannot provide for all future cases, observes that at all events existing law by a Code is given pure from particulars, whilst the comparatively small body of judiciary law formed upon it is formed upon a compact and perspicuous whole, and may easily be wrought into it." (Austin's Jurisprudence, vol. ii. p. 1064). The facility of fusion would be, I should think, still greater if amendments or additions suggested by cases were to form themselves out of the cases as they arose under the hand of the Judge who encounters the difficulty or the want.

Whatever assistance may be derived from previous Penal Codes in constructing a new one, there are questions of penal jurisprudence demanding attention, which the precedents of other codes will not suffice to determine. There are now available means and materials and evidence and experience which were not in existence when the American and Indian Codes were produced, and still less at the date of the Code Napoleon. Since those times there has been much investigation and discussion of controverted questions; and in this country experience has accrued, especially since transportation ceased, which may well suggest questions not heretofore propounded. At the same time it will no doubt be very important to consider carefully what should be the limits. to be observed in theoretic and innovating legislation.

In such legislation a preference should be given to provisions which have already been the subject of discus

sion and controversy embodied in authentic records, such as the Reports of Commissions or of Parliamentary Committees, with the appendices of evidence, or which have already been enacted in British or Foreign Codes: but it may not be necessary that this preference should involve an absolute exclusion of others.

There are certain principles or maxims or provisions of Penal Law and Procedure as to which it seems to me to be desirable to inquire-1st, whether they do or do not fall within the preferential category; and, 2nd, whether, if not falling within it, they are nevertheless such as call for revision with a view to change.

In England, in the last 200 years, a signal alteration has taken place in public sentiment, and also in the weight and authority attached to public sentiment, in respect of crimes and punishments. Formerly the leaning was in favour of public interests, latterly it has been in favour of the interests of persons accused of crime. Thus, in Bacon's maxims of law, we have (Regula XII.) "Receditur à placitis juris potius quàm injuriæ et delicta, maneant impunita ;" and the reason given is, "Quia salus populi suprema lex." He distinguishes afterwards between the "placita juris" or "regulæ positivæ " on the one hand, and on the other the "regulæ rationales or higher sort of maxims :" and though the distinction is not very definitely expounded, I collect that at all events no merely technical rule was to be allowed to stand in the way of deserved punishment. In our times

aspirations and I imagine that this light could only be derived from statistical data not attainable when these writers wrote.

The adequacy of particular punishments to particular offences upon Bentham's or any other principles of valuation, must no doubt be indefinitely subject to circumstance in their application; but still I can conceive that some principles might be derived from statistical data to serve as a punctum saliens.

In the search for such principles what should be endeavoured is, to ascertain the results of changes in Penal Law; that is, the effect of one punishment for a particular offence compared with the effect of another. Great changes have taken place in our own Penal Law since the commencement of the compilation of 'Judicial Statistics' published annually by the Home Office; and though divers circumstances apart from the punishment may affect the frequency of a crime even within the compass of two years or of three, still an approximate estimate of the adequacy or inadequacy of a punishment may be arrived at after due allowance made for varying circumstances, provided the body of experience examined shall be large enough to attenuate in comparison the merely circumstantial variations.

The French 'Statistique Criminelle' begins in 1825. From a 'Rapport à l'Académie Royale des Sciences,' and an essay with tables constructed by M. Guerry in 1832 (which I happen to possess, without having access,

however, to any later French Statistics), I gather that if changes have taken place in the law since 1825, the effect of them will be ascertainable with some precision, inasmuch as in France circumstantial variations of crime seemed (at least down to 1832) to have been very slight. It is alleged by M. Guerry that the French Compte de l'Administration de la Justice Criminelle' had in 1832 been imitated in almost every country of Europe; and he enumerates fifteen countries as within his own knowledge. If so, there must be in existence extensive records of experience of change.

There is one example in our own law of large and successive changes effected since 1836 which, owing to the gravity of the subject-matter, is especially deserving of investigation. By the Acts of 7 Gul. IV. and 1 Vict., cap. 84 to 89 and 91 (17th July, 1837), the punishment of death was removed from about 200 offences, and left applicable to high treason, murder, and certain attempts at murder, rape, arson with danger to life, and to piracies, burglaries, and robberies when aggravated by cruelty and violence. The great majority of the offences which were exempted from capital punishment by these Acts had not been visited with it in practice for many years before, and in respect of them there could be no doubt that the dead letter of the law could do nothing but harm. There were some others which had been visited with capital punishment occasionally, though rarely, and with regard to these the prevailing argument was that the

V.

feeling of the public was against capital punishment in such cases, and that the law by awarding it did in effect promote the total impunity of the offences by deterring prosecutions, and by inducing witnesses, juries, and sometimes Judges, to violate their duty and conspire in producing a false verdict of acquittal; insomuch that in these cases practised offenders would prefer to be tried on a capital charge as a sure means of getting off. On these Acts, however, there followed in 1839 and 1840 a great increase of crime; not less than 38 per cent. on the crimes from which the punishment of death had been removed, along with 25 per cent. on other offences; due possibly, this last, to a general loosening of the sense of restraint consequent on so large and sudden a relaxation of penal law. These results notwithstanding, the exemptions from capital punishment were carried further and further by subsequent Acts, until the only crimes now continuing to be punishable by death are high treason and murder. I do not know what may have been the tenor of the statistical returns bearing upon the successive remissions posterior to those of 1837; but they could not tell us much that is material either way; for the course of the Legislature in removing the punishment virtually from all crimes but one (for high treason is hardly a practical question at present) seems to have led to something nearly amounting to an administrative neutralization of the law in regard even to that one; and in the year 1866-67 the murders found by Coroners'