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ART. IX.-Sixth Report of Her Majesty's Commissioners on Criminal
THE gradual and guarded progress which has been made towards the reform of our Criminal Code, affords not only an interesting subject in the science of legislation, and an illustration of the advancement of mankind in the knowledge of jurisprudential principles, but of the cautious and practical character of the British people. When Bentham, in the year 1789, published his "Introduction to the Principles of Morals and Legislation," his countrymen, with few exceptions, treated his work as that of a wild theorist, an impracticable philosopher; and for many years it would have been difficult to discover any important influence which his speculations had upon the opinions or the daily interests and feelings of the community. By degrees, however, the thinking portion began to perceive that his philosophy had penetrated to first principles, at least with regard to national laws; while a select few of our most eminent men clearly saw how the greatest practical benefits might be derived from an adherence to, and a development of, these principles, and how a healthfully-working system might be built upon them. In fact, our principal law reformers, in modern times, from Romilly downwards, have been prompted, enlightened, and guided by Bentham; nor can we believe that we speak rashly when we say that the future historians of the reforms wrought, the revolutions produced, during the last fifty years, will recognize the philosopher whom we particularly mention as having been the instrument and originator of far more permanent benefits to mankind than was that revolution which had its outbreak in France in the same year that the world received the "Introduction to the Principles of Morals and Legislation."
Jeremy Bentham was gifted with wonderful powers for the office of pioneer in the wilderness of English law. Who can describe the philosopher so accurately as Lord Brougham, who long knew him well, and who at any time can sketch a character or abilities vividly, although the person may have but seldom stood before the portraitpainter. His Lordship has said,-"To the performance of the magnificent task which he had set before him, this great man brought a capacity, of which it is saying everything to affirm, that it was not inadequate to so mighty a labour. Acute, sagacious, reflecting, suspicious to a fault of all outward appearances, nor ever to be satisfied without the most close-sifting, unsparing scrutiny, he had an industry which no excess of toil could weary, and applied himself with an unremitting perseverance to master every minute portion of each subject, as if he had not possessed a quickness of apprehension, which could, at a glance, become acquainted with all its general features. In him were blended, to a degree perhaps
unequalled in any other philosopher, the love and appreciation of general principles, with the avidity for minute details; the power of embracing and following out general views, with the capacity for pursuing each one of numberless particular facts."
It is to Bentham's philosophic and also detailed views in relation to penal laws that we are particularly considering him. We must next name, as his illustrious disciple, the amiable and the profound Romilly, whose exertions towards the amendment of our Criminal Code enlisted on the side of wisdom, amelioration, and humanity, a much greater multitude than his predecessor in law reform had done. The weight of Sir Samuel's character, his position at the bar, and in the House of Commons, the moral and intellectual qualities of the philanthropist, together with the majesty of his talents, and the solemn sedate perseverance that distinguished him, produced the best effects amongst our legislators; and, what was not less to be desired, secured the sympathies of the well-informed and the estimable throughout the country. And yet, how great was the opposition which he encountered in high places! how slow the progress of his conquests over prejudice, ignorance, and indolence! After his death, however, the seed which he had sown, the convictions he had wrought, the effects of his beneficent efforts, became more and more visible; and indeed most of the reforms of which he maintained the expediency, have since his death been adopted by the legislature. Romilly's mantle may be said to have fallen upon Sir James Mackintosh, although the folds were not so massive nor the drapery so ample. Yet the Scotchman was no mean champion in the field; for, within a few months after the death of Sir Samuel, viz. in March, 1819, Mackintosh moved in Parliament for a select committee, "to take into consideration so much of the subject (of the reform of the criminal code) as related to capital punishments in felonies;" and although he was opposed by the whole weight of Government, he succeeded in carrying his object amidst the acclamations of the House by a majority of nineteen. Mr. Canning characterized the mover's speech on that occasion as "combining luminous arrangement and powerful argument with chaste and temperate eloquence." A short passage from the speech itself, which we quote, indicates distinctly its object, and the principles upon which the amendments were proposed to rest. Sir James said, "It is one of the greatest evils which can befall a country when the criminal law and the virtuous feelings of the community are in hostility to each other. They cannot be long at variance without injury to one, perhaps to both. One of my objects is to approximate them; to make good men the anxious supporters of the criminal law, and to restore, if it has been injured, that zealous attachment to the law in general, which, even in the most tempestuous
period of our history, has distinguished the people of England among the nations of the world."
The progress which law reform had now made in Parliament, in the sense and feelings of the nation, and, no doubt, among many who had been accounted inveterate conservatives, left those in power no other alternative than to make the Criminal Code a subject for the consideration and revision of Government. Accordingly Sir Robert Peel, by means of consolidating and amending many of the statutes, did more service to the humane cause advocated by the reformers, by lifting, in consequence of the force of his example, many of his own conservative party, out of the stronghold of their antiquated dogmas and tenacious prejudices, than even by the positive amendments which he introduced.
The press, and consequently the public mind, had by this time been effectually moved; the former, both as the prompter and reechoer of the other, stirring up our legislators, teaching them truths, and urging upon them what was pressingly needful. It is unnecessary, before coming to the Report before us, to say more in continuation of our hasty retrospect, than to remind some of our readers, and perhaps inform others, that when Brougham became Chancellor, he appointed a commission to consider the reform of the criminal law, and the subject of codification. Certain gentlemen, learned in jurisprudence, and presumed to be eminently qualified for the office, were, on the 23rd of July, 1833, by a commission issued from the crown, authorized and appointed to "digest into one statute all the statutes and enactments touching crimes, and the trial and punishment thereof; and also to digest into one other statute all the provisions of the common and unwritten law touching the same; and to inquire and report how far it may be expedient to combine both these statutes into one body of the criminal law, repealing all other statutory provisions; or how far it may be expedient to pass into a law the first mentioned only of the said statutes; and generally to inquire and report how far it may be expedient to consolidate the other branches of the existing statute law, or any of them."
The reports which have been from time to time furnished to the legislature by the commissioners referred to, may be said to have led to all the mitigations that have recently been effected in our penal system; and we trust that the Report before us, with those which may follow, may prove not less declarative and benign.
This Sixth Report, dated the 3rd day of May, 1841, and presented to both Houses of Parliament by command of Her Majesty, is devoted to the following,-viz. Treason and Offences against the State; Libel; Offences against Religion; Offences relating to the Coin; and Offences relating to the Public Revenue. We shall confine ourselves to some of the statements regarding the law as it
stands, and also some of the suggestions of the Commissioners relative to Treason first of all, and next to Libel; Offences which are not only of the most important character, but which present special difficulties and features.
The Commissioners justly observe that the peculiar character of Treason, and the heavy penalties which attend a conviction of the crime, demand the utmost explicitness when defining it, the most careful exclusion of all forced constructions, and the fullest, clearest body of evidence which it is possible for a jury to require towards coming to a verdict. It is, however, too notorious that in the course of the trials for this crowning offence there have often been flagrant violations of these requisites, even after a number of statutes have been passed to protect the subject against the sovereign, whose ministers and justices have almost always inclined to regard everything as treasonable, which by construction, often forced, could be held to affect the prerogative of the king. But we go forward to mention some of the most important of the existing enactments on the subject as given in the Report.
"Of those now in force," say the Commissioners, "two of the reign of Queen Elizabeth were enacted against the maintaining of the authority of the Pope or other foreign prince or person within the realm; one of the reign of King James I., against the withdrawing the subjects of this realm from their natural obedience to his Majesty, or endeavouring to reconcile them to the see of Rome, or to promise obedience to the see of Rome, or to any other prince, state, or potentate; two of the reign of Queen Anne, against hindering the due succession to the crown, or asserting any title to the crown otherwise than according to certain statutes enumerated,' or asserting that the kings or queens of the realm, with the authority of Parliament, are not able to make laws and statutes of sufficient force to limit the crown and the descent thereof; a statute of the thirty-sixth year of the reign of King George III., which, embodying some of the more important constructions upon the Statute of Treasons raised in the course of several centuries, makes it treason to compass the levying of war against the sovereign, in order to compel him to change his measures, or to put any force or constraint upon, or to intimidate or overawe either house of Parliament, or to move or stir any foreigner or stranger with force to invade the realm; and lastly, an Act of the 3rd and 4th years of your Majesty's reign, whereby it was made treason to be married to, or to be concerned in procuring or bringing about the marriage of the king or queen, for whom a regent is by that Act appointed, being under the age of eighteen years, without the consent in writing of the regent, and the assent of both houses of Parliament previously obtained."
These enactments together with other unchanged statutes, or clauses in them, which have been passed since, as well as during, the reign of Edward the Third, contain the law of Treason. But as most of the observations of the Commissioners refer to the
Statute of Treasons passed in the twenty-fifth year of the monarch just named, we shall quote its remarkable passages.
"Whereas," it declares, "divers opinions have been before this time in what case treason shall be said, and in what not; the king, at the request of the lords and commons, both made a declaration in the manner as hereafter followeth, that is to say, when a man doth compass or imagine the death of our lord the king; or of our lady his companion, or of their eldest son and heir;
"Or if a man do violate the king's companion, or king's eldest daughter unmarried, or the companion of the king's eldest son and heir;
"Or if a man do levy war against our lord the king in his realm;
"Or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm or elsewhere;
"And thereof be probably attainted of open deed by the people in their condition;
"And if a man slay the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre or justices of assize, and all other justices assigned to hear and determine, being in their places doing their offices;
"And it is to be understood that in the cases above rehearsed that ought to be adjudged treason which extends to our lord the king and his royal majesty; and of such treason the forfeiture of the escheats pertaineth to our sovereign lord, as well of the lands and tenements holden of other as of himself;
"And because many other like cases of treason may happen in time to come which a man cannot think nor declare at this present time, it is accorded that if any other case of supposed treason which is not above specified doth happen before any justices, the justices shall tarry without any going to judgment of the treason till the cause be showed and declared before the king and his Parliament whether it ought to be adjudged treason or other felony. And if per case any man of this realm ride armed covertly or secretly with men of arms against any other, to slay him or rob him, or take him or retain him till he hath made fine or ransom for to have his deliverance, it is not the mind of the king nor his counsel, that in such case it shall be judged treason, but shall be judged felony or trespass, according to the laws of the land of oldtime used, and according as the case requireth."
Now, one of the principal points for the consideration of judges and juries in a trial for treason, must be the question,-What is it that is required as evidence of an intention to "compass or imagine the death of our lord the king," or any other of the specified forms? Overt acts are the things required; and therefore the Commissioners have a good deal to say, as well as to quote from authorities, with regard to what constitutes an overt act, an "open deed." We shall not follow them in their observations on this head, but only state that they recommend that the received doctrine relative to writings as well as words should be specifically and formally sanctioned by